Canada

   
TOTAL SCORES
Year: 1980 2000 2010 2020
Score: 5.5 7 8.5 8.5

 

1. RECOGNITION OF LAND RIGHTS / TITLE

    Yes.

   
Recognition of Land Rights/ Title Scores
Year: 1980 2000 2010 2020
Score: 1 1 1 1

Evidence:

  • In Calder v. British Columbia (1973), the Supreme Court of Canada recognized the existence of Aboriginal title to lands that had not been surrendered to the Crown. Since this time, the Government of Canada has engaged in land claim negotiations with Aboriginal peoples in areas where Aboriginal rights and title have not been addressed by treaty or through other legal means.
  • In 1997, the Supreme Court of Canada's decision in Delgamuukw v. British Columbia made it clear that Aboriginal land and territory title is a right recognized and affirmed by subsection 35 (1) of the Constitution Act, 1982.
  • In Delgamuukw v. British Columbia, the court ruled that Aboriginal people enjoy the right of exclusive use and occupation of territory if they can demonstrate that they have occupied the land prior to the assertion of British sovereignty, and that there has been continuity in the possession between the present and pre-sovereignty occupation.
  • Under the terms of the numerous historic treaties, Aboriginal peoples were granted land and territory. Where the Crown has failed to fulfill its obligations, Aboriginal peoples can appeal to Treaty Land Entitlement recourse to settle the land debt.
  • Through the authority of the Indian Act (1876), tracts of land have been reserved for Indian bands. Although the title to the land is in the name of the Crown, His or Her Majesty, ownership of the land is conferred to bands. Reserve lands are owned communally and can only be alienated to the federal Crown.
  • In 1999, the Government of Canada introduced the First Nations Land Management Act. The Act enables First Nations to opt-out of sections of the Indian Act relating to land management. First Nations can then develop their own laws about land use, the environment and natural resources and take advantage of cultural and economic development opportunities with their new land management authorities.
  • Historically, the federal government did not recognize Métis as peoples with whom the federal government has a constitutional relationship. As such, the responsibility to deal with and recognize Metis fell primarily to the provinces. The Métis Settlements Act of Alberta (1990) provides for the protection of a collective land base for the Métis. As well, the Manitoba Act (1870) allocated a total of 1.4 million acres for the benefit of the Metis (Imai 1999, 86).
  • The 2016, the Supreme Court of Canada ruled in favour of the Métis of Canada in Daniels v. Canada. The decision classified non-status Indians and Métis as “Indians” under section 91(24) of the Canadian Constitution, clarifying that both groups are a constitutional responsibility of the federal government, not provinces (Vowel 2016). 
  • In the north, the Inuit are beneficiaries of modern-day treaties and land claims through the James Bay and Northern Quebec Agreement, the Inuvialuit Final Agreement (The Western Arctic Claim Settlement), the Labrador Inuit Land Claims Agreement-In-Principle, and the Nunavut Land Claims Agreement Act.
 

2. RECOGNITION OF SELF-GOVERNMENT RIGHTS

    Yes, but largely as a matter of policy rather than law.

   
Recognition of Self-government Scores
Year: 1980 2000 2010 2020
Score: 0.5 1 1 1

Evidence:

  • The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. The inherent right to self-government is a matter of policy and has not been codified in law, nor has it been recognized by the Supreme Court of Canada.
  • In 1998, the Government of Canada released the Agenda for Action with First Nations which states that "Aboriginal people enjoyed their own forms of government for thousands of years before this country was founded and they continue to have the inherent right to self-government. The federal government is committed to working out government-to-government relationships at an agreed-upon pace acceptable to First Nations" (quoted in Imai 1999, 117).
  • Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources (INAC 2010).
  • Under the Indian Act, Indian bands are authorized to develop bylaws for their communities with the approval of the minister responsible for Indian Affairs.
  • In 1995, the Government of Canada expanded its Official Policy of Negotiation to include self-government; as before, this expansion applies primarily to nations with whom historic treaties were not signed (mostly nations in western Canada and the far north).  
  • At present, there are 25 self-government agreements across Canada involving 43 Indigenous communities, including the Sechelt Indian Band Self-Government Act, Westbank First Nation Self-Government Agreement; and the The Tłı̨chǫ Land Claims and Self-Government Agreement.
  • In one of the most recent modern-day treaties, the Nisga'a Final Agreement Act (1999) provides for an open, democratic and accountable Nisga'a government. Through the self-government provisions of the treaty, the Nisga'a have the legal authority to conduct their own affairs, including provisions for legal jurisdiction and the management of natural resources, in accordance with existing provincial legislation (UN 2005, 9).
 

3. UPHOLDING HISTORIC TREATIES AND / OR SIGNING NEW TREATIES

    Yes.

   
Upholding Treaties Scores
Year: 1980 2000 2010 2020
Score: 1 1 1 1

Evidence:

  • The British Crown first entered into solemn treaties with Aboriginal peoples in the early 18th century. The first of the historic treaties provides that Aboriginal peoples surrender their interests in lands in exchange for certain other benefits that could include reserves, annual payments, rights to medical care and education, and many others.
  • The Supreme Court of Canada has ruled with respect to the ability of the federal government to override treaties. In R. v. Sparrow (1990), the Supreme Court stated that the federal government could limit or infringe upon a right of Aboriginal people only if there existed a good reason for the law, and only if the law interfered with the Aboriginal right in the least intrusive way possible (Imai 1999, 32). Failing to do so, the law would be deemed unconstitutional.
  • In R. v. McPherson (1994), however, it was ruled that provincial laws of general application must be deemed inapplicable to Aboriginal persons when they conflict with Aboriginal treaty rights.
  • The first of the modern-day treaties was the James Bay and Northern Quebec Agreement, signed in 1975. To date, the federal government has settled 25 additional self-government and comprehensive land claim areas (as well as two stand-alone self-government agreements) with Aboriginal people in Canada (CIRNAC 2020).
  • Treaty rights already in existence in 1982, the year the Constitution Act was passed, and those that came afterwards, are recognized and affirmed by Canada's constitution.
 

4. RECOGNITION OF CULTURAL RIGHTS (LANGUAGE, HUNTING / FISHING, RELIGION)

    Yes.

   
Recognition of Cultural Rights Scores
Year: 1980 2000 2010 2020
Score: 1 1 1 1

Evidence:

  • The Supreme Court of Canada ruled in R. v. Sparrow (1990) that Aboriginal rights recognized and affirmed by section 35 (1) of the Constitution Act, 1982 include those practices that form an "integral part" of an Aboriginal community's "distinctive culture."
  • In 1996, the Supreme Court stated in R. v. Van der Peet that, "to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right at the time of contact" (quoted in Macklem 2007, 59).
  • Cultural rights are often provided for in the treaties made between the Crown and Aboriginal peoples. Many treaties explicitly addressed hunting and fishing. In R v. Cheechoo (1981), the Ontario District Court maintained that, under Treaty No. 9, Indians were entitled to a right to trapping.
  • Religious practices have been recognized as a treaty right. In R. v. Sioui (1990), the Supreme Court of Canada upheld an 1860 treaty guarantee to "the free exercise of their religion, customs and trade with the English." However, a British Columbia court ruled in Thomas v. Norris that there were limits to the treaty right. In this case, religious practices could not be used as defence against assault.
 

5. RECOGNITION OF CUSTOMARY LAW

    Yes.

   
Recognition of Customary Law Scores
Year: 1980 2000 2010 2020
Score: 0 0.5 0.5 0.5

Evidence:

  • Canadian courts have recognized the existence of Aboriginal customary law in a number of circumstances. Customary marriage has been recognized in criminal cases when a wife refused to testify against her husband (Imai 1999, 36).
  • Aboriginal customary marriage was recognized by an Alberta Court of Queen's Bench in the case of Manychief v. Poffenroth (1995). The conclusion of Justice McBain maintains that the case represents a strong affirmation of customary Aboriginal marriages as equivalent to marriage conducted under provincial law.
  • In the case of Casimel v. Insurance Corp. of British Columbia (1994), a British Columbia Court of Appeal ordered an insurance company to pay benefits to the elderly parents of a deceased child who had been adopted according to the customs of the Stellaquo First Nation.
  • In British Columbia, the Adoption Act of 1996 included a section [s.s. 46 (1) and 46 (2)] that addressed Aboriginal laws on customary adoptions. Similarly, the Northwest Territories passed the Aboriginal Custom Adoption Recognition Act in 1994.
     
 

6. GUARANTEES OF REPRESENTATION / CONSULTATION IN THE CENTRAL GOVERNMENT

    Yes.

   
Guarantees of Representation Scores
Year: 1980 2000 2010 2020
Score: 0 0 1 1

Evidence:

  • Section 35.1 of Canada's Constitution Act, 1982 obliges the government of Canada to invite representatives of the aboriginal peoples to participate in discussions relating to proposed amendments to Aboriginal rights and freedom, as well as amendments to section 91.24 of the Constitution Act, 1867 that confers legislative responsibility for "Indians, and Lands reserved for Indians."
  • Despite this constitutional provision, it was not until the early 2000s that the fundamental principles around the duty to consult were established. In 2004 and 2005, the Supreme Court of Canada released a trilogy of decisions that clarified the basis for the Crown’s duty to consult: Haida Nation v. British Columbia (Minister of Forests), Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage). The cases established procedural protection for Aboriginal and treaty rights and outlined a framework for implementation (Brideau, 2019).
  • Of the three cases, landmark decision was unanimous 2004 judgment in Haida Nation v. British Columbia (Minister of Forests), the Supreme Court of Canada ruled that both the federal and provincial Crowns have a "duty to consult" Aboriginal peoples and to accommodate their concerns even before Aboriginal title or rights claims have been decided. The duty to consult stems from the Crown's unique relationship with Aboriginal peoples and must be discharged in a manner that upholds the honour of the Crown and promotes reconciliation of Aboriginal and non-Aboriginal interests (INAC 2008).
  • All federal departments and agencies are required to comply with the legal duty to consult and possibly accommodate Aboriginal interests. Currently, the Government of Canada has developed an interim guideline entitled Aboriginal Consultation and Accommodation: Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult (Government of Canada 2011).
  • Neither the federal government nor any of the provincial governments ensures that Aboriginal peoples are represented in Parliament or in the legislatures. However, government studies and commissions have addressed the issue of guaranteed representation in Parliament or provincial/territorial legislatures (e.g., the Committee for Aboriginal Electoral Reform under the Royal Commission on Electoral Reform and Party Financing in 1991).
  • In 2018, the Supreme Court revisited to the question of duty to consult in Mikisew Cree First Nation v. Canada (Governor General in Council).n this decision, the Court made clear that at present, the duty to consult applies only to the Crown’s conduct under enacted legislation, and not the process of developing legislation, though governments may seek the input of Indigenous groups as a matter of policy (Brideau, 2019). 
 

7. CONSTITUTIONAL OR LEGISLATIVE AFFIRMATION OF THE DISTINCT STATUS OF INDIGENOUS PEOPLES

    Yes.

   
Affirmation of Distinct Status Scores
Year: 1980 2000 2010 2020
Score: 1 1 1 1

Evidence:

  • The Royal Proclamation of 1763 was the first affirmation of Canada's indigenous population. This proclamation recognized the "several Nations or Tribes of Indians" as distinct from European settlers (quoted in Imai 1999, 28).
  • Canada's Aboriginal people are referenced twice in the constitution. In section 91.24 of the Constitution Act, 1867, the federal government is granted authority to make laws regarding "Indians, and Lands reserved for Indians." For the purposes of this section, the Supreme Court of Canada reference case [1939] SCR 104, Inuit are considered "Indians."
  • Section 35 of the Constitution Act, 1982, recognizes Aboriginal people and their rights. Aboriginal people are described as including "Indians, Inuit and Metis." Moreover, section 35 "recognized and affirmed" that the rights of Aboriginal people pre-exist the constitution and are not created by the constitution.
 

8. SUPPORT / RATIFICATION FOR INTERNATIONAL INSTRUMENTS ON INDIGENOUS RIGHTS

    Partial.

   
Support for International Instruments Scores
Year: 1980 2000 2010 2020
Score: 0 0 0.5 0.5

Evidence:

  • Canada has not ratified ILO Convention 169 Indigenous and Tribal Peoples Convention, 1989.
  • Canada was among the four countries that voted against the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP). In November 2010, Canada reversed its position and endorsed the UN DRIP. This declaration is non-binding and does not impose duties or obligations on the Canadian government or Crown.
  • In 2016, the Government of Canada again endorsed the UN DRIP and committed to its full implementation. 
  • In 2016, NDP Member of Parliament Romeo Saganash introduced a private member’s bill (C-262) to ensure that Canadian laws are consistent with the UN DRIP; however the bill would not have codified the UN declaration into Canadian law. Despite passage in the House of Commons, the bill died on the order paper in the Senate in 2019 when it rose for summer recess (Gunn 2019). 
  • In December 2020, the Government of Canada introduced its own legislation to implement the UN DRIP.
  • In 2019, the provincial government in British Columbia passed its own legislation, Declaration on the Rights of Indigenous Peoples Act, to implement the UN DRIP and ensure provincial laws align with the declaration.
 

9. AFFIRMATIVE ACTION

    Yes, but primarily limited to employers under federal jusisdiction.

   
Affirmative Action Scores
Year: 1980 2000 2010 2020
Score: 0 1 1 1

Evidence:

  • Aboriginal people were identified as one of four groups designated as beneficiaries for employment equity as a result of the 1984 Abella Commission on Equality in Employment.
  • Based on the recommendations of the Abella Report, the Government of Canada enacted the Employment Equity Act in 1985 (subsequently amended in 1995). Section 5 of this act stipulates that every employer shall implement employment equity by "instituting such positive policies and practices and making such reasonable accommodations as will ensure that [Aboriginal persons] achieve a degree of representation in each occupational group in the employer's workforce that reflects their representation in the Canadian workforce."
  • The Employment Equity Act is federal legislation and applies only to federally regulated workforce activity, such as the federal public service. In no other jurisdiction in Canada (provincial or territorial) does there exist similar legislative prescriptions for affirmative action. Provincial and territorial employment equity falls under human rights codes, effectively barring employers from discriminating in their employment activities, such as hiring and wage negotiation, on the basis of race or nationality (i.e., indigenous status).
  • Though no legislative prescriptions exist, the three Northern territories (Yukon, Northwest Territories, and Nunavut) have all introduced affirmative action policies within the territorial public services. 
    • The Nunavut Land Claim Agreement commits federal and territorial governments to the recruitment and training of Inuit for positions throughout government (Gallagher-Mackay, 2019).
    • In 2006, the Government of the Northwest Territories introduced an Affirmative Action program, of which Aboriginal peoples of Inuit, Metis, or Dene descent are named as a target group (GNWT 2006)
    • In 2020, the Yukon government introduced a new aboriginal hiring preference program under “Breaking Trail Together,” the government’s plan to increase the number of Aboriginal employees in government (CBC News 2020b).
  • Through the federal Department of Human Resources and Skills Development Canada, the Government of Canada has developed the Aboriginal Skills and Employment Partnership as well as the Aboriginal Skills and Employment Training Strategy. These initiatives are designed to provide funding for employment programs and services that help Aboriginal people and private sector employers prepare for, obtain and maintain employment for Aboriginal people