The rights of indigenous peoples : the constitutional issues

Abstract

The 1982 Canadian Charter of Rights and Liberties clearly stated that both the federal and the provincial legislations were to recognize aboriginal rights: in relation to which it used two different linguistic expressions: existing rights and treaty rights. The recognition of community rights in Canada brings to light the tensions opposing the unique territorial and cultural features possessed by same groups and the movement favoring a universal expansion of rights in the name of equality. It is possible to show how difficult it is - especially with regard to fundamental rights - to search for a steady balance between the need to unify and the desire to enhance territorial uniqueness. An analysis can also point out how such balance should be strengthened on an institutional level, by virtue of specific constitutional means or formulas. Finally, it may highlight the instances in which social claims have been able to prevail over territorial claims, as well as cases when the rights to territorial identity have been acknowledged by derogating to universal human rights.