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Improving Legal Procedures

Treaties between aboriginal peoples and Canada are a critical part of Canada’s Constitution.  The Constitution of Canada also recognizes and affirms the rights of aboriginal peoples.

Securing recognition and implementation of those rights is a protracted and lengthy process, fraught with technicalities and procedural hurdles rarely encountered in other areas of Constitutional law.  For example, once a particular aspect of the freedom to expression is recognized, every subsequent citizen who seeks to express themselves in that fashion must not need to prove they can exercise that right.  Nor that the right can be exercised in any number of locations, beyond the location where it was originally recognized.

The reasons for this are partially related to the substance of aboriginal rights law, and partially related to the methods used to vindicate aboriginal rights themselves.  Most aboriginal rights cases involve a relatively poor aboriginal group attempting to secure a right against the wealthiest and most powerful defendant in Canada - the Canadian government itself.  The government has endless resources, and may use them to slow the pace of litigation and introduce various procedural and technical hurdles, driving up the cost of pursuing aboriginal rights cases.

The Indigenous Rights Centre intends to identify ‘procedural’ rules which lead to tremendous injustice.  Examples might include requirements to gain standing to pursue aboriginal right claims, harsh application of limitations defences and a trend for courts to either delay implementation of judgments or to deny judgments for purely technical reasons.

Of course, winning a case is not the end of the story.  Many aboriginal rights advocates note that when an aboriginal group ‘loses’ a case, the effects on federal policy (for example self-government negotiations & comprehensive claims) is swift and far reaching.  However, when an aboriginal claimant ‘wins’ a case, the right is not implemented, but subjected to negotiation.  Further, aboriginal ‘wins’ are not translated into policy changes, but are isolated to the particular claimant who advanced the claim.  

The IRC will also undertake work on implementation of court cases, as well as on recommendations and conclusions from international bodies which are directed at Canada.