Aboriginal or treaty rights

Aboriginal or treaty rights are rights recognized and affirmed by section 35 of the Constitution Act, 1982. Aboriginal rights are collective rights of First Nations, Inuit and Métis peoples that arise from their status as the original peoples of Canada. Treaty rights arise from historical or modern treaties and differ from one treaty to the next.

The term appears in federal procurement because the Government of Canada must account for these rights when it buys goods, services and construction. Federal buyers are directed to check whether a planned procurement touches a modern treaty or a comprehensive land claim agreement, and to document what they find. Suppliers see the result in solicitation terms, notification practices and, in some cases, special eligibility rules.

What section 35 of the Constitution Act, 1982 recognizes

Section 35 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. The Government of Canada describes this provision in its section 35 background material. It is the constitutional source of the phrase, and every federal policy that uses the term traces back to it.

How Aboriginal rights differ from treaty rights

Aboriginal rights are collective rights. They can include rights connected to longstanding use and occupation of land, such as hunting, trapping and fishing, as well as rights relating to land, forests and mineral resources and, potentially, self-government. The specific rights vary among Indigenous peoples, as the Library and Archives Canada terminology guide explains.

Treaty rights are set out in historical or modern treaties. Modern treaties include comprehensive land claim agreements and, in some cases, self-government agreements. The rights, benefits and obligations in each instrument differ, which is why no single checklist covers every treaty. The Department of Justice outlines this distinction in its material on the United Nations Declaration.

The duty to consult and Crown conduct

The Department of National Defence uses the terms Indigenous collective, Aboriginal rights, treaty rights, modern treaties and comprehensive land claim agreements in its Indigenous affairs directive. It also describes the Crown's duty to consult and, where appropriate, accommodate. That duty applies when contemplated Crown conduct could adversely affect potential or established Aboriginal or treaty rights. The full wording is in DND's Indigenous affairs directive.

What federal buyers must check before they buy

CanadaBuys states that contracting authorities must determine whether a procurement is affected by a modern treaty or comprehensive land claim agreement. They must consult the Aboriginal and Treaty Rights Information System (ATRIS) to identify potential or established Aboriginal or treaty rights relevant to the procurement. The requirement is set out on the CanadaBuys page on comprehensive land claims agreements.

Where a modern treaty applies, the measures can include:

• notifying claimant groups or beneficiary businesses of opportunities;
• using treaty business directories;
• structuring requirements so smaller or specialized firms can take part;
• applying beneficiary-focused evaluation criteria where appropriate;
• providing a right of first refusal for certain procurements.

The Treasury Board framework requires departments to determine which modern-treaty obligations apply, consult the list of agreements and ATRIS, and document their assessment. The Treasury Board procurement policy instrument also addresses trade agreements. Trade agreements do not apply to measures for Indigenous peoples and Indigenous businesses, including Indigenous business set-asides. A modern treaty's right of first refusal can remove a procurement from trade-agreement coverage or allow it to be set aside from that coverage. The department must still solicit bids from the entities holding that right.

What it means for a supplier bidding on Canadian public contracts

Read each solicitation for treaty-specific conditions. These can include eligibility rules, notification steps, geographic limits, beneficiary requirements, a right of first refusal or Indigenous-participation criteria. Where a solicitation carries such conditions, comply with them as stated and supply the evidence the buyer requests. The buyer obligations and possible measures are established, but there is no single supplier procedure that fits every solicitation, so the tender documents set the rules for each bid.