Aboriginal Rights and State Obligations


  • Patrick MacKlem




This article investigates the nature and scope of Canada's constitutional obligations towards Aboriginal people. Specifically, the author explores the question of whether or not constitutional recognition of Aboriginal rights imposes a positive constitutional obligation on governments in Canada to provide economic or social benefits to Aboriginal people. He examines approaches which would either confirm or deny the existence of such an obligation and argues for a middle ground between these extremes which would require governments to provide some benefits in certain circumstances. Whether or not a particular social or economic benefit is required by s. 35(1) of the Canadian Constitution would depend on whether or not it is integral to the protection of one of the purposes or interests served by constitutional recognition and affirmation of Aboriginal rights in general. These purposes or interests include respect for Aboriginal identity, territory, and sovereignty. In addition, domestic fiduciary obligations and international human rights documents support the view that federal, provincial, and territorial governments ought to provide certain social and economic benefits to Aboriginals.


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