Difference between revisions of "Aboriginal Law"

==What laws apply to Aboriginal rights, treaty rights, and human rights of Aboriginal people in BC?==

The ''[http://laws-lois.justice.gc.ca/eng/Const/page-15.html Canadian Charter of Rights and Freedoms]'' applies to every person in Canada, including Aboriginal people. But it applies only to laws and government actions, or the actions of agencies very closely connected to government, such as school boards and labour relations boards. The Charter normally applies to band councils and other Aboriginal governments, but not always. Scripts [[Charter of Rights and Freedoms: Legal Rights (Script 200)|200]], [[Charter of Rights and Freedoms: Overview (Script 230)|230]], and [[Charter of Rights and Freedoms: Equality Rights (Script 232)|232]] have more on the Charter.

[http://laws-lois.justice.gc.ca/eng/CONST/page-16.html#docCont Section 35] of the ''Constitution Act, 1982'' is not in the Charter, but it gives constitutional protection to existing Aboriginal and treaty rights and to rights acquired through treaty and land claim negotiations. Since 1982, a lot of common law on identifying and defining aboriginal and treaty rights and how they fit with Canadian society has developed. These rights are site and fact-specific. They are protected from conflict with the rights and freedoms protected by the Charter (by section 25 of the Charter). So far, aboriginal rights relate mainly to the use of natural resources and aboriginal governance. Treaty rights are written into specific treaty documents.

The ''[http://laws-lois.justice.gc.ca/eng/acts/H-6/index.html Canadian Human Rights Act]'' applies to the federal government and businesses that it regulates, such as airlines and banks. The [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission] investigates complaints of discrimination and other violations of this law. Before the ''Canadian Human Rights Act'' was amended in 2008, it prevented challenges of federal or band government decisions made under the ''Indian Act''. The 2008 amendments applied to the federal government immediately. First Nations had a 3-year transition period, so the amendments applied to them as of 2011. Script [[Human Rights and Discrimination Protection (Script 236)|236]] has more on human rights and discrimination.

The BC ''[http://bclaws.ca/civix/document/id/complete/statreg/96210_01 Human Rights Code]'' is like the federal ''Human Rights Act'' but it applies to the provincial government and businesses it regulates. The ''Human Rights Code'' prohibits discrimination by schools, stores, restaurants, and rental properties. The [http://www.bchrt.bc.ca/ BC Human Rights Tribunal] enforces the ''Code'' and has more information. As well, check script [[Human Rights and Discrimination Protection (Script 236)|236]] and the [http://www.bchrc.net/ BC Human Rights Clinic] operated by the [http://www.clasbc.net/ Community Legal Assistance Society].

Deciding which human rights laws apply to cases involving Aboriginal people can be a complicated legal question. You should get legal advice about which laws apply to specific situations.

Some Aboriginal people have relied on international human rights law to have their rights recognized. The main laws that have helped Aboriginals in Canada are the ''United Nations [http://www.ohchr.org/EN/Library/Pages/UDHR.aspx Universal Declaration of Human Rights]'', the ''[http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx International Convention on the Elimination of All Forms of Racial Discrimination]'' and the ''[http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx International Covenant on Civil and Political Rights]''. They are available on the [http://www.ohchr.org/EN/pages/home.aspx website of the United Nations High Commissioner for Human Rights]. The Human Rights Committee at the United Nations deals with discrimination complaints under international law, but it has no authority to enforce these laws in Canada. Canada has not signed the United Nations Declaration on the Rights of Indigenous Peoples.