Indigenous people have special rights under Canadian law because their ancestors had distinct legal traditions and rights in their lands before Europeans began to colonize what we now call Canada.
While ancestry is an integral part of Indigenous identity, it is incorrect to describe Indigenous Peoples’ rights as ‘race-based’. Indigenous people have special rights because they are part of a distinct Indigenous nation with its own language, culture, political systems and its own land base and legal orders.
Indigenous Peoples’ rights were not bestowed on them. They are inherent rights that pre-existed colonization and are not limited to “Aboriginal rights” identified by Canadian courts. Some Indigenous Nations entered into treaties with Britain and later Canada. As part of the treaty, the Crown agreed to honour and respect the Indigenous Nation’s pre-existing rights. Later, s. 35(1) of the Constitution Act, 1982 provided constitutional protection to these treaty rights and other rights, but s. 35(1) is not the source of these rights.