The Canadian Constitution and Indigenous Legal Traditions

When trying to understand the intersection of our three different legal systems, it is important to look at the Constitution, especially key provisions from the Canadian Charter of Rights and Freedoms.

Sections 25 and 35 of the Canadian Charter of Rights and Freedoms address how rights protected under the Charter will intersect with existing rights held by Canada's Indigenous peoples. Section 25 guarantees that no rights protected under the Charter will be used to abrogate or derogate from right belonging to Aboriginal people (including land rights and rights under the Royal Proclamation), . Section 35 provides distinct recognition and affirmation of existing Aboriginal and Treaty rights. This is an important step in amalgamating common law and Aboriginal law traditions.

It is necessary to recognize that written rights sometimes are not met in practice, however their recognition begins the works toward developing them practically. The Tsilhqot’in Nation v. British Columbia case is an example of how section 35 has worked towards giving Aboriginal peoples land they have right to and recognition that this right has been infringed upon in the past.