Section 35 of the Constitution Act, 1982, protects the existing Aboriginal rights of the “aboriginal peoples of Canada”, which includes the Métis. Aboriginal rights are modern-day practices, customs or traditions that are integral to Indigenous communities today and have their roots in the community’s practices, customs and traditions prior to contact with explorers and traders arriving from Europe. Although traceable to pre-contact practices, the practice protected today will not be frozen in its historical form, and have evolved into a more modern practice. In the 2003 case of R v Powley,  2 SCR 207 (SCC), the Supreme Court of Canada confirmed in the Métis hold Aboriginal rights protected by section 35. The Court has not yet addressed the issue of whether the Métis can hold Aboriginal title, or established the tests for establishing Métis title.
Once a modern-day Aboriginal right is established through negotiation or litigation by a particular Indigenous community, the right is protected by s. 35 of the Constitution Act, 1982. This means that federal and provincial governments will only be able to affect or limit the right if they can justify doing so in accordance with strict legal tests.
The courts have also, through the articulation of the duty to consult, provided Indigenous communities with tools to protect their claimed Aboriginal interests in land pending establishment of rights through negotiations or litigation.
Westaway Law Group has experience litigating claims for Aboriginal rights, at various levels of court, as well as with negotiations of modern treaties, and other agreements for Métis communities aimed at effectively translating their title claims into concrete benefits for their communities.
We can help Indigenous entities with:
- Legal research and drafting of Special Claim submissions for recognition of rights.
- Legal advice to assist with the development (and protection) of business opportunities on reserve or in areas subject to Aboriginal rights claims.
- Legal and strategic advice on negotiation strategies relating to consultation protocols, Economic Benefit Agreements in relation to particular development projects, or broader relationship agreements with governments or Industry aimed at least in part at managing Aboriginal title rights through consultation, such as Strategic Engagement Agreements, Reconciliation Protocols, Incremental Treaty Agreements, or Sectoral Agreements.
- Legal advice on governance matters, which can help to position Indigenous entities to participate in negotiations and better control the development of their lands.
- Claims that a duty to consult and/or accommodate has been triggered in the context of particular development projects.
> R v Van der Peet,  2 SCR 507 (SCC)
> R v Côté,  3 SCR 139 (SCC)
> R v Adams,  3 SCR 101 (SCC)
> R v Powley,  2 S.C.R. 207 (SCC)
> Haida Nation v British Columbia (Minister of Forests),  SCR 511 (SCC)
> Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56