Centre for Constitutional Rights – Aboriginal Cultural Rights Module 2-3

Website: University of Alberta


Centre for Constitutional Rights

Aboriginal Rights Background

In light of the discussion on cultural rights, I thought it relevant to post an excerpt from the University Alberta’s description of Aboriginal cultural rights in regards to the Canadian Constitution.  For those interested cultural rights this site has numerous further readings that would be a great place to start researching.

Aboriginal rights are communal rights, shared by all members of an aboriginal group rather than being specific to an individual person. Because of this common nature, aboriginal rights are not defined the same way as the individual common law rights shared by all Canadians, such as the right to vote, freedom of religion, or freedom of expression.[11] Many aboriginal rights are cultural rights. The purpose of section 35(1) of the Constitution is to reconcile aboriginal peoples’ rights to traditional customs and practices with European law and the present-day rule of the Crown.[12] Cultural rights include the activities practiced by all aboriginal peoples in general and certain aboriginal groups in particular, for example the right to speak indigenous languages and the right to perform traditional customs such as dances, songs and ceremonies. Rights particular to certain aboriginal groups depend upon the historical practices and customs of each group. This includes, for example, the right to fish or hunt in a certain area regardless of whether or not one has title to that land. Cultural activities such as hunting, fishing, language and art are the most basic type of aboriginal rights, and may exist without aboriginal title to land. In order to establish that an activity is an aboriginal right, it is necessary to prove that the Aboriginal group bringing the claim practiced this activity, tradition or custom and that it was culturally important at the time of European contact.[13]

Government Links

Indian and Northern Affairs Canada

Jane May Allain, “Aboriginal Fishing Rights: Supreme Court Decisions” Library of Parliament (October 1996)

“Aboriginal Rights” Canadian Human Rights Commission

BC Treaty Commission

“Aboriginal Canada Portal” Government of Canada

“Treaty Policy Directorate” Indian and Northern Affairs Canada (26 July 2006)

“First Nations Land Management Act” Indian and Northern Affairs Canada (23 April 2004)

Further Readings:

“Canadian Native Law Cases – Case law 1763-1978” University of Saskatchewan

“A Brief Introduction to Aboriginal Law in Canada” Bill Henderson Virtual Law Office

“Aboriginal Rights and Title in Canada After Delgamuukw: Anthropological Perspectives” Aboriginal Rights and Title

Aboriginal Law and Legislation

“First Nations Treaties, Law, and Land Claims Theme Page” Community Learning Network

“Aboriginal Rights” The Canadian Encyclopedia

Action for Aboriginal Rights

Centre for Indigenous Sovereignty


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