Abstract

Critics of expanded Aboriginal rights in the Canadian context often argue for limited special rights, largely in line with those afforded to visible minority groups, immigrant groups, and gays and lesbians, among others. However, the contentions of these scholars' critiques rarely draw attention to some of the most striking differences between minority groups in Canada and Aboriginal communities. Aboriginal communities are markedly different from any other group in Canada because they are the original occupants of what is now Canada; they lived on the land according to their own laws, governance, and practices; and they functioned as sovereigns over their lands, recognised as such by the newcomers. These assertions of prior occupancy, prior sovereignty, as well as the existence of treaties, and the ultimate loss of self-determination, combine to form a distinct and unique Aboriginal position in Canada. This article addresses the debate over whether Aboriginal groups should be considered minorities or peoples with a right of self-determination. It undertakes legal-theoretical analyses of Aboriginal assertions of prior occupancy, prior sovereignty, and treaties, alongside an examination of legal recognition theory and its application to Aboriginal communities in Canada. By extension, it is argued that Aboriginal peoples constitute social, cultural, and political communities, distinct in nature from any other group in Canada. Whether this distinctiveness has translated into tangible rights and recognition is contested. Both Canadian courts and governments have recognised the distinctiveness of Aboriginal peoples, yet this has occurred at differing rates. From a political standpoint, the recognition of Aboriginal rights has been a slow, incremental process, often marred by government disinterest and inaction. While formal Aboriginal rights recognition has occurred, this has not translated fully into concrete benefits for Aboriginal peoples. Instead, government policy on fundamental Aboriginal issues still lags behind. One exampled is the protracted and arduous nature of land claims and self-government negotiations. During the negotiations and implementation processes of land claims and self-government agreements, significant limitations continue to be placed on the legislative and political powers of Aboriginal peoples across Canada. Aboriginal title is not fully recognised, Aboriginal self-governing powers are often restricted, and the over-arching right of self-determination is sidelined. It is apparent that Canadian government policy on Aboriginal rights is more formal than actual. This article examines the contradictions between government policy and action, particularly with regard to land claims and self-government agreements, alongside remedial possibilities.