Section 35 of the Constitution Act, 1982 protects “existing Aboriginal and treaty rights of the Aboriginal peoples of Canada”. It defines “Aboriginal peoples of Canada” as including the “Indian, Inuit and Métis peoples of Canada”.
Aboriginal rights exist in relation to lands, practices, customs and traditions of Canada’s Aboriginal peoples. These rights need to be considered when doing business or investing in Canada, particularly when planning large energy, mining, forestry, pipeline, railroad and other infrastructure projects. Business transactions and the development of projects that seem simple at the outset may become increasingly complex when such rights are involved.
As described below, the precise nature of the protection afforded by the Constitution depends upon whether the rights are “Aboriginal rights” or “treaty rights.” Also for consideration is whether these rights are merely asserted, or have been formally recognized and defined by the final judgment of a court, or through the conclusion of a treaty or land claims agreement with the Crown.
Moreover, the manner in which these constitutional rights are implemented is deeply influenced by the practical realities of the various regions of Canada, as well as the specific cultural identity of each Aboriginal group.
Aboriginal peoples are the fastest growing population in Canada, the country being home to more than 630 First Nations and 53 Inuit communities. Based on the 2016 Census, as well as statistical information published by Crown-Indigenous Relations and Northern Affairs Canada, there are more than 1.67 million persons in Canada who identify themselves as Aboriginal people. This represents about five percent of the total population of the country.
It is also worth noting that Aboriginal law is constantly evolving, notably in light of judicial pronouncements. In the last few years, Aboriginal issues have attracted growing public and governmental attention in Canada, a trend that is likely to continue in the future.