Why do Indigenous People have Special Rights?
Indigenous people have special rights under Canadian law because their ancestors had distinct legal traditions and rights in their lands before Europeans began to colonize what we now call Canada and in some cases signed nation-to-nation treaties with the Crown.
While ancestry is an integral part of Indigenous identity, Indigenous Peoples’ special rights are not ‘race-based’. Indigenous people have special rights because they are part of a distinct Indigenous Nation with its own language, culture, political and legal systems and its own land base.
Importantly, each distinct Indigenous Nation pre-dates the arrival of colonizing European nations. Indigenous Peoples’ special rights were not bestowed on them. They are inherent rights that pre-existed colonization.
Some Indigenous Nations entered into treaties with Britain and later Canada. As part of the treaty, the Crown agreed to honour and respect the Indigenous Nation’s pre-existing rights. Later, section 35(1) of the Constitution Act, 1982 provided constitutional protection to these treaty rights and other rights, but it is not the source of these rights.
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Bruce McIvor, lawyer and historian, is partner at First Peoples Law LLP. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada. Bruce's ancestors took Métis scrip at Red River in Manitoba. He holds a law degree, a Ph.D. in Aboriginal and environmental history, is a Fulbright Scholar and author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He is a member of the Manitoba Métis Federation.
First Peoples Law is a law firm dedicated to defending and advancing the rights of Indigenous Peoples in Canada. We work closely with First Nations to defend their Aboriginal title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their members.