Aboriginal Self-Determination in Canada: Protections Afforded by the Judiciary and Government

Abstract

It is commonly thought that the watershed Supreme Court of Canada cases on Aboriginal rights represent a gradual trend wherein Aboriginal peoples have gained increasing protection under Canadian common law. However, this paper argues the contrary. Despite judicial decisions dealing with Aboriginal rights under section 35(1), the rights of Aboriginal peoples in Canada have not gained greater protection and they certainly have not expanded to encompass the right of self-determination. Instead, it is argued that judges have introduced and applied various legal tests which have ultimately resulted in further impediments to the expansion of broad Aboriginal rights under section 35(1).

It is interesting to discover that the level of political and governmental recognition of Aboriginal peoples and their rights, including the right of self-determination, has been greater than at the Supreme Court of Canada. This is despite the destructive treatment of Aboriginal peoples by the Canadian state. On the whole, the Government of Canada has been willing to recognise the inherent right of self-determination as applied to Aboriginal peoples. This is due to the changing legal status of who constitutes "peoples" under international law and the role of the Canadian government as a signatory to various relevant international covenants and declarations, alongside more recent government policy statements and developments in comprehensive land claims and self-government negotiations. Ultimately, it is argued that the Canadian government has tended toward higher levels of support for more extensive rights for Aboriginal peoples than has the judiciary, and most notably, the Supreme Court of Canada.

Keywords: Aboriginal Self-Determimination, Canada, Recognition