Aboriginal rights arise from practices, customs, and traditions integral to an Aboriginal group at the time of European contact (or effective control in the case of the Metis). Examples include the right to hunt for food or in some cases the right to harvest fish commercially. Aboriginal rights are seen across Canada.
Treaty rights arise from treaties between Aboriginal people and the Crown. It is a solemn contract and treaty promises can depend on the treaty text. The treaties in the Prairie provinces are known as “surrender” treaties as the treaty cedes land to the Crown in exchange for treaty rights such as the right to hunt for food or the creation of reserve land. Many, if not all, First Nation people dispute that they have extinguished their rights to land as asserted in the treaty.
Finally, the duty of consultation and accommodation is an obligation on the Crown (Federal or Provincial) to engage an Aboriginal group before the Crown makes a decision to do something (e.g. allow tree harvesting or allocate Crown land) that may adversely impact proven or asserted rights. This is an important obligation designed to inform the Crown decision making process by ensuring Aboriginal perspectives on Crown action are brought forward before decisions are made.
Many lawyers assist resource developers, First Nations, and the Crown on the duty of consultation as a part of the regulatory process, which is required if development is to occur. Further, many lawyers assist First Nation and the Crown in addressing title, rights, and treaty claims.
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