The Political and Legal Inequities Among Aboriginal Peoples in Canada

L.C. Green is a university professor of political science and an
honorary professor of law at the University of Alberta.

The enactment of the Constitution Act, 1982 and the entrenchment therein of a provision guaranteeing aboriginal rights raises a variety of problems concerning the legal status and rights of the aboriginal peoples of Canada. Moreover, the requirement of the convening of a series of conferences to deal with constitutional matters affecting these peoples made all the more urgent consideration of some of the inequities to which aboriginal peoples had been subject. The Institute of Intergovernmental Relations at Queen’s University undertook the preparation of a series of pamphlets dealing with some of the issues involved. The pamphlet by Delia Opekokew examines the political and legal inequities and the extent to which they can or should be remedied.

According to the Constitution Act, 1982, the aboriginal peoples are the Indian, Inuit, and Métis peoples. Although some question the latter’s inclusion, the author reminds us that “aboriginal rights would attach specifically to the Inuit and Indians because of its basis in original possession. An argument can be made that because the Métis were in occupation prior to the English colonization on territories such as the Red River colony, this occupation should be considered as being a pre-existing legal right.” Others might suggest that this emphasis on English colonization denies the two founding nations argument!

The pamphlet traces the history of the problem and discusses the relevant laws and treaties, as well as considering the difference between federal and provincial jurisdiction in this field. Many years ago the World Court pointed out that equality in law did not always amount to equality in fact. Despite a page devoted to this bifurcation, it is difficult to determine the author’s attitude (p. 46). The concluding proposals are more directed to giving equitable treatment to aboriginals outside the Indian Act, which many regard as primitive and outdated, rather than looking to means to entrench aboriginal rights once these have been adequately defined, bearing in mind modern international commitments undertaken by Canada.