Aboriginal Rights and Human Rights

In 1977 the general assumption was that, but for section 67, the Commission would assume responsibility for all complaints regarding First Nations and DIAND. Such complaints would have been dealt with in the same manner as other complaints received by the Commission. At that time Band Councils, as First Nation Governments are called in the Indian Act, were largely administrative extensions of DIAND. The idea of local autonomy, much less the inherent right of self-government, was just emerging in the consciousness of non-Aboriginal Canadians as a policy issue.

A great deal has changed since 1977. Today, although some 600 First Nations still operate under the Indian Act, First Nations have a great deal more control of their own affairs than they did in 1977. This is so, even though the recognition of inherent lawmaking powers by First Nations independent of a self-government agreement remains a significant outstanding legal and political issue.

In 1982 the "existing aboriginal and treaty rights of the aboriginal peoples of Canada" were constitutionally "recognized and affirmed" under section 35 of the Constitution Act, 1982. Section 25 of the Charter was enacted to ensure that the rights set out in the Charter would not be interpreted to "abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada."

In 1994, the Government of Canada recognized that the Aboriginal peoples of Canada had an inherent right to self-government as an existing right included within those protected by section 35 of the Constitution Act, 1982. The Government made a commitment to negotiate self-government agreements with First Nations that would operate within the existing constitutional framework, including the Charter.

Jurisprudence, including decisions of the Supreme Court, has established that in dealing with First Nations, recognition and consideration must be given to the unique history, status, culture, customs and rights of First Nation communities and individuals. (In this context, recognition should also be given to traditional systems of Aboriginal governance and dispute resolution that incorporate universal human rights principles.) Above all, the courts have enjoined governments in Canada to ensure that in all dealings with the Aboriginal peoples of Canada, the honour of the Crown is upheld:

The honour of the Crown is always at stake in its dealings with Aboriginal peoples... It is not a mere incantation, but rather a core precept that finds its application in concrete practices.²⁴

Individual and Collective Rights

The Canadian Charter of Rights and Freedoms, the Constitution Act, 1982, and the jurisprudence recognize that the "existing treaty and Aboriginal rights" of the Aboriginal peoples of Canada include certain rights of a collective nature. Although these collective rights have yet to be fully defined, it is clear that they include matters such as the inherent right to self-government; hunting, fishing and gathering rights; collective land rights; and the right to the preservation of traditional languages, cultures and traditions.

The recognition of collective rights is seen by some as controversial because of a perceived conflict with more "traditional" individual rights, such as the right to be free from discrimination. The question is asked: what will happen when an individual right and a collective right collide? This is a valid question.

The discussion in Canada on the perceived tension between individual rights and collective rights is also an issue on the international scene. The modern conception of human rights finds its roots in the western philosophical traditions of individual autonomy. In contrast, countries in the developing world and indigenous peoples have sometimes asserted a need for the international community to recognize collective rights, such as the right to communal land ownership, as equally indispensable to human welfare.

The international community recognizes this duality of rights. The 1993 Vienna Declaration of the World Conference on Human Rights²⁵ affirmed:

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.

The Declaration goes on to recognize "the inherent dignity and the unique contribution of indigenous people to the development and plurality of society" and to specify that:

Considering the importance of the promotion and protection of the rights of indigenous people, and the contribution of such promotion and protection to the political and social stability of the States in which such people live, States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recognize the value and diversity of their distinct identities, cultures and social organization.