Indigenous Rights: Inherent, Continuous, and Not Canada's to Give
Indigenous Rights: Inherent, Continuous, and Not Canada's to Give
Native Studies 30 | Unit 1: Identity, Worldview, and Rights | Lesson 3.2
Native Studies 30 | Unit 1: Identity, Worldview, and Rights | Lesson 3.2
Learning Goal: I can explain where Indigenous rights come from and why they are recognized in Canadian law. I can name at least one Indigenous right and explain why it exists separately from rights that apply to all Canadian citizens.
Cree, Saulteaux, and Dakota peoples governed themselves, managed their territories, and lived according to their own laws long before Canada existed as a country. Their right to do so existed because they existed as distinct peoples with their own legal orders. No European arrival changed that fact.
"Inherent rights" are rights that belong to a people by virtue of who they are, not because a government chose to grant them. First Nations, Inuit, and Métis peoples hold inherent rights to self-government, to their territories, to their languages and ceremonies, and to determine their own futures. In many First Nations understandings, these rights have existed since creation, not for thousands of years measured against European arrival, but for all time. First Nations peoples understand them as present-day realities, not historical artifacts.
When European settlers arrived, they brought legal doctrines designed to justify claiming land already occupied by millions of people with functioning governments, economies, and legal systems. The Doctrine of Discovery held that Europeans could assert title over territories they "discovered," regardless of who already lived there. For over a century, Canada governed on the assumption that the Indian Act, the reserve system, and federal authority had replaced Indigenous governance entirely.
That assumption was wrong. First Nations peoples never surrendered the right to govern themselves or to determine what happens on their territories. Legal scholar John Borrows (Anishinaabe) argues that Indigenous legal traditions have always operated alongside and beneath Canadian law, whether or not Canadian courts chose to see them. The Royal Commission on Aboriginal Peoples confirmed in 1996 that the right to self-government is an inherent right that survived Confederation. The rights to self-determination persisted through the residential school system, through the pass system, through the suppression of ceremony. They persist today because they were never extinguished. They belong to First Nations on their own terms.
Section 35 of the Constitution Act, 1982 states: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." The operative word is "recognized" — not "created" and not "granted." Parliament acknowledged that these rights already existed before 1982.
The Supreme Court of Canada has confirmed this in a series of major decisions. In R. v. Sparrow (1990), the Court ruled that governments must justify any restrictions on Indigenous rights and must interpret those rights broadly. In Delgamuukw v. British Columbia (1997), the Court recognized Indigenous title to the land itself, not just to specific uses of it. In Haida Nation v. British Columbia (2004), the Court established that the Crown must consult First Nations before taking actions that could affect their rights, even before those rights have been proven in court.
In 2007, the United Nations adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 3 affirms the right of Indigenous peoples to self-determination. Article 4 affirms their right to autonomy and self-government. Canada endorsed UNDRIP in 2016 and passed legislation in 2021 committing to implement it in Canadian law. These decisions and declarations did not create new rights. They moved a legal system, slowly, toward recognizing what First Nations peoples have always known.
Key Idea: Indigenous rights are inherent — they exist because First Nations, Inuit, and Métis peoples have governed themselves and maintained relationships with their territories since time immemorial. Colonization did not extinguish these rights. Canadian law has been slow to recognize them, and the process is still ongoing. Recognition is not the same as creation. These rights existed before Canada and have never required Canada's permission to exist.
Borrows, J. (2010). Canada's Indigenous Constitution. University of Toronto Press.
Royal Commission on Aboriginal Peoples. (1996). Report of the Royal Commission on Aboriginal Peoples, Volume 2: Restructuring the Relationship. Canada Communication Group.
United Nations. (2007). United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295.
UN Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14.
Supreme Court of Canada. (1990). R. v. Sparrow. [1990] 1 SCR 1075.
Supreme Court of Canada. (1997). Delgamuukw v. British Columbia. [1997] 3 SCR 1010.
Supreme Court of Canada. (2004). Haida Nation v. British Columbia (Minister of Forests). [2004] 3 SCR 511.
Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.