At their most basic, Indigenous Aboriginal rights are collective rights, exercisable by individuals. What this means in practice is that in order to possess and utilize those rights, an individual must be part of an Indigenous Aboriginal rights-bearing collectivity, and have the authorization of that collectivity to be exercising the rights.

That authorization might be explicit or implicit, but the individual can’t be acting against the authority of the collective. For example, if the collective sets up its own fishing licence system for its members, an individual member can’t then go out and fish contrary to that system, as their rights derive solely from the collective.

This individual exercise flows from collective authority principle applies to any rights-based harvesting activity, be it forestry, gathering, or other economic, food or social activity.

If the collective hasn’t set up a formal authorization system for its members, they would still need to be acting at least implicitly with the authority of the collective, and not against its interests. But there may be active debates about who is and isn’t acting with authority.

Which Indigenous activities can and can’t be pursued pursuant to an Indigenous Aboriginal right remains an active source of debate in Canada’s court system. Indigenous tobacco, cannabis and gasoline sales have for many years formed core parts of some Indigenous economies where historic economic marginalization from Canadian mainstream society due to Crown policy has intentionally restricted the development of flourishing self-sustaining Indigenous economies, however Indigenous peoples have been prosecuted by the Crown for engaging in these activities without either Crown permits or the collection of Crown taxes. Indigenous peoples have likewise been pushed to the margins of fishing, forestry and hunting activities, and prosecuted by the Crown when they have attempted to feed and support themselves, their families and their Nations.

Ultimately, Indigenous Aboriginal rights are place-specific, thing-specific and people-specific. The exercise of a particular Indigenous Aboriginal right by a particular Indigenous people must be tied to the territory they have traditionally occupied or used, however whether the activity must be “traditional” is a far more controversial topic since the adoption of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law.

The Quebec Superior Court of Justice, in rejecting prior Supreme Court of Canada Jurisprudence, in R. v. Montour, 2023 QCCS 4154, found: “Despite any reluctance one might have towards the tobacco industry, the evidence demonstrates that the actions of the Applicants that have been criminalized were done pursuant to the right of their community to freely pursue economic development. This Court thus concludes that the Applicants have demonstrated on a balance of probability that their participation in the Mohawk’s of Kahawà:ke tobacco trade industry is protected by their Aboriginal right to freely pursue economic development.” This issue is likely to continue to be litigated in Canadian courts for many years to come.