PrepTest 45, Section 4, Question 23

The following passage was written in the late 1980s.

The struggle to obtain legal recognition of aboriginal rights is a difficult one, and even if a right is written into the law there is no guarantee that the future will not bring changes to the law that undermine the right. For this reason, the federal government of Canada in 1982 extended constitutional protection to those aboriginal rights already recognized under the law. This protection was extended to the Indian, Inuit, and Métis peoples, the three groups generally thought to comprise the aboriginal population in Canada. But this decision has placed on provincial courts the enormous burden of interpreting and translating the necessarily general constitutional language into specific rulings. The result has been inconsistent recognition and establishment of aboriginal rights, despite the continued efforts of aboriginal peoples to raise issues concerning their rights.

Aboriginal rights in Canada are defined by the constitution as aboriginal peoples' rights to ownership of land and its resources, the inherent right of aboriginal societies to self-government, and the right to legal recognition of indigenous customs. But difficulties arise in applying these broadly conceived rights. For example, while it might appear straightforward to affirm legal recognition of indigenous customs, the exact legal meaning of "indigenous" is extremely difficult to interpret. The intent of the constitutional protection is to recognize only long-standing traditional customs, not those of recent origin; provincial courts therefore require aboriginal peoples to provide legal documentation that any customs they seek to protect were practiced sufficiently long ago—a criterion defined in practice to mean prior to the establishment of British sovereignty over the specific territory. However, this requirement makes it difficult for aboriginal societies, which often relied on oral tradition rather than written records, to support their claims.

Furthermore, even if aboriginal peoples are successful in convincing the courts that specific rights should be recognized, it is frequently difficult to determine exactly what these rights amount to. Consider aboriginal land claims. Even when aboriginal ownership of specific lands is fully established, there remains the problem of interpreting the meaning of that "ownership." In a 1984 case in Ontario, an aboriginal group claimed that its property rights should be interpreted as full ownership in the contemporary sense of private property, which allows for the sale of the land or its resources. But the provincial court instead ruled that the law had previously recognized only the aboriginal right to use the land and therefore granted property rights so minimal as to allow only the bare survival of the community. Here, the provincial court's ruling was excessively conservative in its assessment of the current law. Regrettably, it appears that this group will not be successful unless it is able to move its case from the provincial courts into the Supreme Court of Canada, which will be, one hopes, more insistent upon a satisfactory application of the constitutional reforms.

The following passage was written in the late 1980s.

The struggle to obtain legal recognition of aboriginal rights is a difficult one, and even if a right is written into the law there is no guarantee that the future will not bring changes to the law that undermine the right. For this reason, the federal government of Canada in 1982 extended constitutional protection to those aboriginal rights already recognized under the law. This protection was extended to the Indian, Inuit, and Métis peoples, the three groups generally thought to comprise the aboriginal population in Canada. But this decision has placed on provincial courts the enormous burden of interpreting and translating the necessarily general constitutional language into specific rulings. The result has been inconsistent recognition and establishment of aboriginal rights, despite the continued efforts of aboriginal peoples to raise issues concerning their rights.

Aboriginal rights in Canada are defined by the constitution as aboriginal peoples' rights to ownership of land and its resources, the inherent right of aboriginal societies to self-government, and the right to legal recognition of indigenous customs. But difficulties arise in applying these broadly conceived rights. For example, while it might appear straightforward to affirm legal recognition of indigenous customs, the exact legal meaning of "indigenous" is extremely difficult to interpret. The intent of the constitutional protection is to recognize only long-standing traditional customs, not those of recent origin; provincial courts therefore require aboriginal peoples to provide legal documentation that any customs they seek to protect were practiced sufficiently long ago—a criterion defined in practice to mean prior to the establishment of British sovereignty over the specific territory. However, this requirement makes it difficult for aboriginal societies, which often relied on oral tradition rather than written records, to support their claims.

Furthermore, even if aboriginal peoples are successful in convincing the courts that specific rights should be recognized, it is frequently difficult to determine exactly what these rights amount to. Consider aboriginal land claims. Even when aboriginal ownership of specific lands is fully established, there remains the problem of interpreting the meaning of that "ownership." In a 1984 case in Ontario, an aboriginal group claimed that its property rights should be interpreted as full ownership in the contemporary sense of private property, which allows for the sale of the land or its resources. But the provincial court instead ruled that the law had previously recognized only the aboriginal right to use the land and therefore granted property rights so minimal as to allow only the bare survival of the community. Here, the provincial court's ruling was excessively conservative in its assessment of the current law. Regrettably, it appears that this group will not be successful unless it is able to move its case from the provincial courts into the Supreme Court of Canada, which will be, one hopes, more insistent upon a satisfactory application of the constitutional reforms.