Aboriginal Rights (Canada) - Essay Example

Facilitator: The Aboriginal Rights and Freedoms in Canada Introduction Aboriginal rights refer to the rights and privilegesaccorded to the aboriginal people, formerly referred to as the owners of the land in Canada. The aboriginal rights in Canada feature in the Canadian constitution in section 35 of the charter of rights as part of the legal boundary governing the people in Canada (Clark 192). They are separate entity rights in Canada that the aboriginal people have practiced and acclimatized to over time. Historically, the aboriginal rights merely protected the aboriginal people and their status in the society. However, the rights and freedoms accorded to the aboriginal people have taken a new shape in the recent times. The aboriginal people now enjoy more emphasized and cemented rights and freedoms, as do other people in Canada. This paper analyzes the aboriginal rights and freedoms from a political angle in order to determine their application in Canada. Past Application of Aboriginal Rights In the past, the aboriginal rights and privileges in Canada only applied within the borders of the country. Aboriginal politicians defended their countries especially when foreign countries infringed on the rights. Particularly, the aboriginal politicians complained to the international bodies like the United Nations over the imposition of the British crown rules on the aboriginal people (Panagos 407). The politicians argued that the aboriginal people were governed by the aboriginal laws hence the imposition of the British crown laws lacked meaningful ground for application. Many aboriginal groups however call upon the government to recognize the aboriginal laws. The government is however hesitant in taking such steps due to the effects of such recognition. However, the aboriginal groups have assured the government that they would remain part of the government if they get the recognition. Treaty rights overshadowed the aboriginal rights in the colonial period in Canada (Poliquin 591). When the colonial masters got into the country and upon their life within the country, they worked their way to overshadow the aboriginal rights. They did so through formation of treaties that in a way covered for the aboriginal rights. The treaties mainly guaranteed the people that they would receive payment and recognition for some privileges that covered for previous aboriginal rights. However, the government and colonial masters brought discriminatory pieces to the aboriginal rights hence the aboriginal people faced more discrimination even in the face of the new treaties. On such grounds, the aboriginal people in Canada are resistant to allow the government any point of disrespect to the aboriginal rights. Court Implementation and Application of the Aboriginal Rights In the existence of the aboriginal rights, the court has played a major role in solving disputes and aligning the aboriginal rights among the people. The courts have previously arbitrated the conflicts between the aboriginal politicians and the governmental agencies. According to Ray (400), in the recognition of the aboriginal rights by the government in 1982, the government did not define what these rights were. This brought a lot of confusion over the application and enjoyment of the rights. In a statement during the adoption of the aboriginal rights, the courts attained the power to determine the definition and jurisdiction of the aboriginal rights. In this sense, the courts would determine cases on grounds of whether the aboriginal rights applied to a case or not. The courts have also played a role in the aboriginal rights through the creation of the “sparrow test” in the case of the 1990 R v Sparrow decision. The case brought two factors into existence as regards the aboriginal rights (Collins 959). First, it defined the extent to which the aboriginal rights could apply and the pieces or parts that could be infringed by the government. The case also confirmed that the aboriginal rights were not absolute because the court, which had the permission and jurisdiction to define the aboriginal rights, said that they were not absolute. The court thus played the first role in exposing the loopholes in the constitutional inclusion of the aboriginal rights in the laws of the country. The court also played part in the establishment of the aboriginal rights through the “Van Der Peet test.” In the R. v. Van der Peet decision, the court played a role in definition of the aboriginal right by setting grounds for determination of what aboriginal rights meant. Both the aboriginal and non-aboriginal people experienced the effects of the test as most of the people complained about the limiting nature of the tests (Senese & Kathi 223). The tests limited the operation of the rights by creating certainty over what would come of the rights. The tests limited the flexibility and the fluidity of the aboriginal rights as they set certainty over the effects and the decisions in the application of the aboriginal rights. The courts also established and developed the legitimate aboriginal rights through the decisions in contract acts. The court decided that only pre-contract agreements applied in the aboriginal rights among the Canadian people. However, the rights were ethnocentric and did not apply to non-aboriginal people. Inherent Situation and Current Application of the Aboriginal Rights As much as the court has the jurisdiction to define the limits and grounds of application of the aboriginal rights, the rights are inherent and self-existing. The courts simply define the rights and the boundaries of application. The aboriginal rights face political challenges with the aboriginal politicians working to offset the efforts of the government to derail them (Mathen 349). The inherent nature of the aboriginal laws is visible through the efforts of the courts and the government to include the aboriginal rights in the legal system. This is an effort to recognize the presence and superiority of the aboriginal people and their political class. Notably, the inherent making of the aboriginal rights includes the rights in the Canadian constitution, a factor that was not present in the constitution initially. As much as the aboriginal political class initially supported the efforts of the government and the courts to define the aboriginal rights, some of the aboriginal politicians and leaders oppose the methods used by the government and the courts. Mildred C. Poplar asserts that the efforts of the government and the courts to define the aboriginal rights and responsibilities undermine the efforts of the aboriginal people to define the application and enactment of the power of aboriginal people to define such rights (Beaulieu 21). Poplar notes that the people fought to have their freedom to make decisions and define the extent of their laws and their rights. They did not fight to have the section 35 of the constitution, which protected the people on the outside but destroyed them on the inside. Poplar notes that the constitution merely recognized them as existing but the continued efforts to define the aboriginal rights by the courts only made the rights obsolete. Analysis of the Sources of Aboriginal Rights The establishment and use of the aboriginal rights arise from three main sources the first source of the aboriginal rights is the international law. According to the provision of the international law, people had the sublime right to ensure healthy relations between them and the international community. The inclusion of the aboriginal rights in the international law arises from various doctrines that recognize the diversity of the aboriginal class among the Canadian people. Some of the doctrines that support the establishment of the aboriginal rights include; the doctrine of discovery, the doctrine of occupation, the doctrine of adverse possession, the doctrine of conquest and the doctrine of secession. These doctrines recognize the fact that the aboriginal people deserved well protected rights to enable them make decisions and interact well with the international community. The other source of the aboriginal rights is the doctrine of royal proclamation of 1763 (Clement 59). This proclamation stated that all people deserved to possess rights and privileges in order for them to perform their roles among the people well. The inclusion of the royal family in the fight by the aboriginal people to have international rights to protect their people against any adversity whether local or international boosted their efforts massively. The common law is also a huge backup for the aboriginal rights among the Canadian people. In the provisions of the common law, all the Canadian people deserved an acknowledgement in the constitution to exercise their national and international relations on a fair ground. Among the rights, that the common law accords the aboriginal people in Canada is the right to take up political leadership, a factor that the aboriginal politicians fight for even as the courts attempt to provide deviating definitions. Justification and Operation of the Aboriginal Rights The existence and operation of the aboriginal rights among the Canadian people in evident in the court rulings, which at the same time show their operation. Various cases in the Supreme Court of Canada and the other courts have been decided basing on the operation of the aboriginal rights. The first example is the “Delgamuukw Case” in 1997, which went down in history as one of the longest cases (Harnum 311). After the examination of the aboriginal rights of the people, Gitksan’s claims were dismissed and the decision upheld on appeal. This shows the commitment of the courts, especially the supreme court of Canada in upholding the aboriginal rights of the people. Another instance of the operation of the aboriginal rights came in the signing of the Nisga'a Land Treaty in 1998 (Mcneil 16). However, this marked one of the few last steps in the application and the use of aboriginal rights among the Canadian people. Soon, section 35 would come and the privileges accorded to the aboriginal people would die. Many people expected the aboriginal rights to grow stronger with their inclusion in section 35 of the Canadian constitution but this effort grew into frustration as the courts had the sole duty to define the rights. Conclusion The aboriginal rights have served the Canadian people for a long time. Initially, they were not recognized and the people acted on them primarily due to their source and the origin support from the international community. However, since their inclusion in section 35 of the constitution, the 1990s plays a major role in the development and cementing of the laws as the courts played their accorded role in defining them. Many aboriginal politicians claim that the 1990s wave is a move to derail the efforts to recognize the people but the constitutional accord satisfies majority of the people. Works Cited Ray, Arthur J. "Ethnohistorical Geography And Aboriginal Rights Litigation In Canada: Memoir Of An Expert Witness." Canadian Geographer 55.4 (2011): 397-406. 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