Protections (Legal Information for Indigenous People)

Aboriginal Rights

Aboriginal rights are unique legal rights held only by Indigenous peoples. They are protected by section 35 of the Constitution, the highest law of Canada. Aboriginal rights protect activities and practices that are important to the distinctive cultures of Indigenous peoples - for e.g. fishing, hunting and Indigenous spiritual practices. Aboriginal rights are held by Indigenous communities and exercised by members of those communities.

Indigenous people may rely on an Aboriginal right as a defense to charges of illegal fishing or hunting. If you have been charged, it is best to talk to a lawyer. Key issues include: were you exercising the right in your community’s territory? Is the right an historic practice that is important to your community? Did the government interfere in how you can exercise the right? If yes, you may have a defense.

Aboriginal rights can be limited - or “infringed” - by governments. However, governments have to prove an infringement is legally justified. This involves asking: was the aboriginal right given priority over other users? Is the infringement as minimal as possible? Did the government consult with the Indigenous rights holders? If yes, the government’s law may still be legally valid even though it infringes an Aboriginal right.

Treaty rights are Aboriginal rights that have been written down and defined in a treaty. They are also constitutionally protected and can be used as a legal defense.

Hunting and Fishing

Indigenous people have rights to fish, hunt, trap and gather for sustenance and for ceremony within their traditional territories.

• You do not need to obtain license or a permit.
• While harvesting, carry your Status card to support this right and firearms license (P.A.L.) if using a gun.
• For commercial fishing, you need to obtain a commercial fishing license from the Department of Fisheries and Oceans.

Indigenous harvesters may be subject to Provincial public health, safety and conservation regulations.

If Non-Status or Métis, carry proof of citizenship or membership in a Nation, or Métis harvester card and a letter of permission from the First Nation (if you’re harvesting in a First Nation’s territory).

Charged with a Harvesting Offence?

You May Have a Defence Based on Your Indigenous Rights

Speak to a lawyer to decide your best course of action

If You Cannot Afford a Lawyer

• Legal Aid BC: Indigenous Harvesting rights cases may be covered (see page 5)
• Indigenous Community Legal Clinic: 1-888-684-7874
• A Legal Advocate may be able to help access legal advice and representation
• Your community may be able join your defense and/or help pay for a lawyer if you do not qualify for Legal Aid

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

A kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say in how or what regulations are imposed by government. See "act."

(1) Information which establishes or tends to establish the truth of a fact, or (2) the conclusion of a logical argument. See "evidence" and "premises."

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."