TERMINOLOGY AND RESOURCES

TERMINOLOGY

Aboriginal vs Indigenous: The term “Indigenous” is now commonly used throughout government when referring to First Nations, Inuit, and Métis peoples. It is a term used to encompass a variety of Indigenous groups with international and global recognition. The term “Aboriginal” continues to be used in the Canadian context, however, particularly when referring to legal concepts such as rights, because many Canadian laws, including the Constitution Act, 1982, refer to the “aboriginal peoples of Canada” and “aboriginal rights”.

Aboriginal rights: Practices, traditions and customs integral to the distinctive culture of the Indigenous group claiming the right that existed prior to contact with the Europeans. In the context of Métis groups, Aboriginal rights means practices, traditions and customs integral to the distinctive culture of the Métis group that existed prior to effective European control, that is, prior to the time when Europeans effectively established political and legal control in the claimed area. Generally, these rights are fact and site specific.

Aboriginal title: An Aboriginal right to the exclusive use and occupation of land. It is possible that two or more Indigenous groups may be able to establish Aboriginal title to the same land.

Activity (see also Crown conduct): any Crown or proponent undertaking, application, proposal, project, regulatory, policy or other initiative or decision that is contemplated. This also includes strategic and higher-level decisions.

Capacity: It is the ability of Indigenous groups to understand the nature of the Activity the Crown or proponent is contemplating and how that Activity might adversely impact their potential or established Aboriginal or Treaty rights.

Comprehensive land claim: Comprehensive land claims are a type of modern treaty that deal with the unfinished business of treaty-making in Canada through a negotiation process. These claims arise in areas of Canada where Aboriginal land rights have not been dealt with by past treaties or through other legal means. In these areas, forward-looking modern treaties are negotiated between the Indigenous group, Canada and the province or territory. Comprehensive land claim negotiations address concerns raised by Indigenous peoples, governments and third parties about who has the legal right to own or use the lands and resources in areas under claim.

Consultation Protocol: Consultation protocols set out a process for Indigenous groups and governments to follow when the Crown has a legal duty to consult with the Indigenous group. They may also be used to facilitate engagement on other matters of interest and concern to communities. Protocols promote relationship building and clarify the roles and responsibilities between governments and Indigenous communities for future consultation. There are currently consultation protocols in place with a number of Indigenous groups across Canada. Copies of these consultation protocols are publically available on the Aboriginal and Treaty Rights Information System (ATRIS).

Crown: Refers to all government departments, ministries (both federal, provincial and territorial) and Crown agencies.

Crown conduct: Means the exercise of the Crown’s jurisdiction and authority whether the Crown may be in charge of the Activity or may be approving an Activity through permits and authorizations. In either context, its actions would constitute Crown conduct.

Crown knowledge: The Supreme Court of Canada stated that the duty to consult arises when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights of which the Crown has real or constructive knowledge.

Cumulative Environmental Effects: The concept of cumulative environmental effects recognizes that the environmental effects of individual human activities can combine and interact with each other to cause aggregate effects that may be different in nature or extent from the effects of the individual activities. Cumulative environmental effects can be characterized as the effect on the environment of a proposed project when combined with those of other past, existing and imminent projects and activities, and which may occur over a certain period of time and distance.

Duty to Consult: The duty to consult is a constitutional obligation that the government as a whole has towards Indigenous peoples. The Supreme Court of Canada held that provincial and federal governments have a legal obligation to consult when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights.

Engagement: Examples of engagement include discussion groups and formal or informal dialogue, sharing knowledge and seeking input on activities such as policy, legislation, program development or renewal.

Existing Aboriginal and Treaty rights: "Existing" includes potential or established Aboriginal or Treaty rights.

First Nation: A term that came into common usage in the 1970s to replace the word "Indian" which some people found offensive. Although the term First Nation is widely used, no legal definition of it exists. Among its uses, the term "First Nations peoples" refers to the “Indian” peoples in Canada, both Status and non-Status. Some “Indian” peoples have also adopted the term "First Nation" to replace the word "band" in the name of their community.

Indigenous governing body: A council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982. (Source: Indigenous Languages Act and the Impact Assessment Act)

Indigenous group: A community of First Nations, Inuit or Métis people that holds or may hold Aboriginal and Treaty rights under section 35 of the Constitution Act, 1982.

Inuit: An Indigenous people in Northern Canada, who live in Nunavut, Northwest Territories, Northern Quebec and Northern Labrador. The word means “people” in the Inuit language, Inuktitut. The singular of Inuit is Inuk.

Métis: For purposes of section 35 rights, the term Métis refers to distinctive peoples who, in addition to their mixed First Nation, Inuit and European ancestry, developed their own customs, and recognizable group identity separate from their First Nation or Inuit and European forebears. A Métis community is a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life.

Modern Treaties: Any treaties that have been signed after 1975, called modern treaties or comprehensive land claim agreements between Indigenous groups and Canada. Some modern treaties include provisions setting out applicable consultation processes. If a modern treaty includes a consultation process, those must be followed. If a modern treaty does not include a consultation process, the duty to consult will still apply if the Crown activity could adversely affect Treaty rights.

Proponent: In the Updated Guidelines, proponent refers to industry, foreign governments or any other parties which initiate or propose an Activity.

Reserve: As defined in the Indian Act, a tract of land, the legal title to which is vested in Her Majesty the Queen in Right of Canada and that has been set apart by Her Majesty for the use and benefit of a First Nation.

Traditional territory: Any designated lands and boundaries to which First Nations, Métis and Inuit communities claim or have established traditional use or occupation.