The environment and aboriginal rights.

• Author: Surtees, Jeff

In my inaugural column for LawNow (here) I suggested five reasons that environmental law can be challenging to understand. One of those reasons was that it requires some understanding of Aboriginal law, a complex subject in its own right.

Even if I were up to the task, it would be impossible to provide even an overview of Aboriginal law in a short column such as this. Instead, I will look at five things that I think give some context to the discussion.

First, Aboriginal people have rights that pre-date the formation of Canada. Some of these rights exist because of their prior occupation of the land. Some exist, or are at least first recognised, because of the Royal Proclamation, 1763, issued by King George III of England following the Seven Years War with France. This Proclamation defined the relationship between the British government and Aboriginal people who then lived in the areas being settled by the British. It is cited as being the basis for the proposition that Canadian governments must deal with First Nations as one nation to another, not as a government to its subjects. Under the Proclamation, Aboriginal land remains Aboriginal land unless it is "ceded" (meaning conquered or surrendered) or purchased. Vast areas of Canada are unceded.

Second, Aboriginal people (defined as Indian, Inuit and Metis peoples), collectively, have rights that are enshrined in Canada's Constitution. This includes section 25 of the Constitution Act, 1982 which says that the Charter of Rights and Freedoms does not remove any rights of aboriginal people, including any rights that originate in the Proclamation of 1763. Section 35 begins by saying that the "existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". Aboriginal people are then given a right to participate in any discussions about amending these provisions or altering the federal government's constitutional authority over Aboriginal matters.

Third, Aboriginal rights are affected by treaties made both before and after Confederation. What the treaty that applies to the area says is important. The treaties are not all the same and they do not cover all land in Canada. In the Maritime Provinces "peace and friendship" treaties were signed before Confederation but rights to land were not given up. Between 1871 and 1921, eleven treaties (called the "numbered treaties") were signed, covering land from Ontario to Alberta and taking in the north-east...