Section 35 of the Constitution Act, 1982

Section 35 of the Constitution Act, 1982 provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. The section does not define the term "aboriginal rights" or provide a closed list; some examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land (cf. aboriginal title) and the right to enforcement of treaties. There remains a debate over whether the right to indigenous self-government is included within section 35. As of 2006^[update] the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.^[1]

Text

The provision provides that:^[2]

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Aboriginal rights

In 1982, when section 35 was entrenched into the Canadian Constitution, Delbert Riley — who was then the National Leader of the National Indian Brotherhood (later known as Assembly of First Nations (AFN)) — was quoted as saying that "Aboriginal Rights are what First Nations define them as. Their rights are what they were before European contact, and remain the same after European contact".^[3]

The word "existing" in section 35(1) has created the need for the Supreme Court of Canada to define what Aboriginal rights "exist". The Supreme Court ruled in R. v. Sparrow^[4] that, before 1982 (when section 35 came into effect), Aboriginal rights existed by virtue of the common law. Common law could be changed by legislation. Therefore, before 1982, the Parliament of Canada could extinguish Aboriginal rights, whereas now it can no longer extinguish any rights that still existed in 1982. Extinguishment of rights can only occur through an act that showed "clear and plain intention" on the government to deny those rights.

In Sparrow, the Court also held the words "recognized and affirmed" incorporate the government's fiduciary duty to the Aboriginal peoples which requires them to exercise restraint when applying their powers in interference with Aboriginal rights. This further suggests that Aboriginal rights are not absolute and can be encroached upon given sufficient reason. After the Sparrow case, provincial legislation can only limit Aboriginal rights if it has given them appropriate priority.

However, in the Sparrow case, the court did not have to address what was in fact an Aboriginal right for the purposes of s.35(1), since neither side disputed that the Musqueam had an Aboriginal right to fish for food. This was developed in R. v. Van der Peet^[5] where Chief Justice Lamer's majority decided that to be considered an Aboriginal right, a practice must have been integral to the distinctive nature of the culture prior to contact by Europeans.

Honour of the Crown

As part of the historical relationship between them, any time the government is interacting with Aboriginal people the honour of the crown is said to be at stake. This principle of the "honour of the crown" imposes a number of duties upon the government.^[6]

Flowing from the honour principle is a duty on the Crown to consult with Aboriginals in any industry activities. This duty was first described in the decisions of Haida Nation v. British Columbia (Minister of Forests)^[7] and Taku River Tlingit First Nation v. British Columbia.^[8] The duty is engaged when "the Province has knowledge, real or constructive, of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect them."^[9] The determination of such a duty depends both on the strength of the right that is being encroached upon as well as the negative impact and gravity of the government's conduct.

Not a Charter right

The section in the Charter that most directly relates to Aboriginal people is section 25.^[10] It merely states that Charter rights do not diminish Aboriginal rights; it is therefore not as important as section 35.^[11] The Charter forms Part I of the Constitution Act, 1982 while section 35 is placed in Part II. This placement in the Constitution is considered significant. Professor Kent McNeil has written it could be seen as meaning section 35 allows for Aboriginal self-government, while the Charter is concerned with more individual rights.^[12] Professor Peter Hogg has argued there are negative and positive effects of excluding section 35 from the Charter. Section 35 cannot be limited by section 1 or the notwithstanding clause. However, section 24 of the Charter, which allows remedies for rights violations, is not available to section 35. Moreover, in R. v. Sparrow the Court developed a test to limit section 35 that Hogg has compared to the section 1 Oakes test.^[13]

Despite this, professors Ted Morton and Rainer Knopff, in their criticisms of Charter case law and growing judicial discretion, treat section 35 as if it were part of the Charter. They write that "Section 35 is technically 'outside' of the Charter, but as a declaration of the special rights of Canada's most salient racial minority- rights that are enforceable in the courts- it has become an important part of the Charter revolution."^[14]

Footnotes

^ "The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government". Department of Indian and Northern Affairs. Retrieved 2009-11-17. The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.
^ "RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA". Department of Justice Canada.
^ "3rd Session - 41st Legislature, Vol. 63, Jun 13, 2018". www.gov.mb.ca. Retrieved 2024-02-21.
^ R. v. Sparrow, 1990 CanLII 104, [1990] 1 SCR 1075 (31 May 1990)
^ R. v. Van der Peet, 1996 CanLII 216, [1996] 2 SCR 507 (21 August 1996)
^ "The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government". the Honourable Ronald A. Irwin, P.C., M.P. Australasian Legal Information Institute. Retrieved 2009-11-17. The Crown has a unique, historic, fiduciary relationship with Aboriginal peoples in Canada. The fact that the federal government recognizes an inherent right of self-government does not imply the end of this historic relationship. But it is important to understand the ways in which the exercise of Aboriginal self-government may change the nature of this relationship. As Aboriginal governments assume greater control over decision-making that affects their communities, they will also assume greater responsibilities for those decisions. This will mean that the role and responsibilities of the Crown will lessen. In this sense, the historic relationship between Aboriginal peoples and the Crown will not disappear, but will evolve as a natural consequence of Aboriginal peoples' changing role in shaping their own lives and communities.
^ Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 (18 November 2004)
^ Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550 (18 November 2004)
^ Haida, at para. 64
^ "Inherent Right of Self-Government Policy". Indigenous Studies Program, The University of Melbourne. 1995. Retrieved 2009-11-17. The Canadian Charter of Rights and Freedoms forms a part of the Canadian Constitution and sets out the rights and freedoms believed necessary to a free and democratic Canadian society. It came into effect on 17 April 1982 as a part of the package of reforms contained in the Constitution Act, 1982. The Charter covers subjects including: Freedom of expression; Democratic government; Right to live and seek employment anywhere in Canada; Legal rights of persons accused of criminal offences; Rights of Aboriginal Peoples; Rights to equality, including that between women and men; Protection of cultural heritage; and Right to use either of Canada's official languages.
^ Peter W. Hogg, Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 631.
^ Kent McNeil, "Aboriginal Governments and the Canadian Charter of Rights and Freedoms," (Canada, Royal Commission on Aboriginal Peoples, 1996), p. 67.
^ Hogg, 621.
^ F.L. Morton and Rainer Knopff, The Charter Revolution & the Court Party (Toronto: Broadview Press, 2000), page 42.

External links

Aboriginal self-government - Library of Parliament
Claims and Treaties: Aboriginal Canada Portal - The Government of Canada
Recognition of inherent rights through legislative initiatives - The Indigenous Bar Association in Canada

Below a two-part documentary about the Conferences on the Constitutional Rights of the Aboriginal Peoples of Canada, focusing on the concept of self-government.

"Dancing Around the Table" Video - Part One - 1987, 57 min 18 s - National Film Board of Canada
"Dancing Around the Table" Video - Part Two- 1987, 50 min 8 s - National Film Board of Canada

[1] "The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government". Department of Indian and Northern Affairs. Retrieved 2009-11-17. The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.

[defe-2] "RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA". Department of Justice Canada.

[3] "3rd Session - 41st Legislature, Vol. 63, Jun 13, 2018". www.gov.mb.ca. Retrieved 2024-02-21.

[4] R. v. Sparrow, 1990 CanLII 104, [1990] 1 SCR 1075 (31 May 1990)

[5] R. v. Van der Peet, 1996 CanLII 216, [1996] 2 SCR 507 (21 August 1996)

[6] "The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government". the Honourable Ronald A. Irwin, P.C., M.P. Australasian Legal Information Institute. Retrieved 2009-11-17. The Crown has a unique, historic, fiduciary relationship with Aboriginal peoples in Canada. The fact that the federal government recognizes an inherent right of self-government does not imply the end of this historic relationship. But it is important to understand the ways in which the exercise of Aboriginal self-government may change the nature of this relationship. As Aboriginal governments assume greater control over decision-making that affects their communities, they will also assume greater responsibilities for those decisions. This will mean that the role and responsibilities of the Crown will lessen. In this sense, the historic relationship between Aboriginal peoples and the Crown will not disappear, but will evolve as a natural consequence of Aboriginal peoples' changing role in shaping their own lives and communities.

[7] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 (18 November 2004)

[8] Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550 (18 November 2004)

[9] Haida, at para. 64

[10] "Inherent Right of Self-Government Policy". Indigenous Studies Program, The University of Melbourne. 1995. Retrieved 2009-11-17. The Canadian Charter of Rights and Freedoms forms a part of the Canadian Constitution and sets out the rights and freedoms believed necessary to a free and democratic Canadian society. It came into effect on 17 April 1982 as a part of the package of reforms contained in the Constitution Act, 1982. The Charter covers subjects including: Freedom of expression; Democratic government; Right to live and seek employment anywhere in Canada; Legal rights of persons accused of criminal offences; Rights of Aboriginal Peoples; Rights to equality, including that between women and men; Protection of cultural heritage; and Right to use either of Canada's official languages.

[11] Peter W. Hogg, Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 631.

[12] Kent McNeil, "Aboriginal Governments and the Canadian Charter of Rights and Freedoms," (Canada, Royal Commission on Aboriginal Peoples, 1996), p. 67.

[13] Hogg, 621.

[14] F.L. Morton and Rainer Knopff, The Charter Revolution & the Court Party (Toronto: Broadview Press, 2000), page 42.

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