Section 35 of the ''
Constitution Act, 1982
The ''Constitution Act, 1982'' (french: link=no, Loi constitutionnelle de 1982) is a part of the Constitution of Canada.Formally enacted as Schedule B of the ''Canada Act 1982'', enacted by the Parliament of the United Kingdom. Section 60 of t ...
'' provides constitutional protection to the
indigenous
Indigenous may refer to:
*Indigenous peoples
*Indigenous (ecology), presence in a region as the result of only natural processes, with no human intervention
*Indigenous (band), an American blues-rock band
*Indigenous (horse), a Hong Kong racehorse ...
and
treaty rights
In Australia, Canada, New Zealand and the United States the term treaty rights specifically refers to rights for indigenous peoples enumerated in treaties with settler societies that arose from European colonization.
Exactly who is indigenou ...
of
indigenous peoples in Canada
In Canada, Indigenous groups comprise the First Nations, Inuit and Métis. Although ''Indian'' is a term still commonly used in legal documents, the descriptors ''Indian'' and ''Eskimo'' have fallen into disuse in Canada, and most consider them ...
. The section, while within the
Constitution of Canada
The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
, falls outside the ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
''. 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
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of 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. the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the
Government of Canada
The government of Canada (french: gouvernement du Canada) is the body responsible for the federal administration of Canada. A constitutional monarchy, the Crown is the corporation sole, assuming distinct roles: the executive, as the ''Crown ...
has had a policy recognizing the inherent right of self-government under section 35.
Text
The provision provides that:
Aboriginal rights
In 1982, when section 35 was entrenched into the Canadian Constitution,
Delbert Riley
Delbert Riley is a Canadian First Nations leader of Chippewa background. He was chief of the National Indian Brotherhood (known today as the Assembly of First Nations) from 1980 to 1982.
He is originally from the Chippewas of the Thames near ...
— who was then the National Leader of the National Indian Brotherhood (later known as
Assembly of First Nations
The Assembly of First Nations (AFN) is an assembly of Canadian First Nations (Indian bands) represented by their chiefs. Established in 1982 and modelled on the United Nations General Assembly, it emerged from the National Indian Brotherhood, wh ...
(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".
The word "existing" in section 35(1) has created the need for the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
to define what Aboriginal rights "exist". The Supreme Court ruled in ''
R. v. Sparrow'' that, before 1982 (when section 35 came into effect), Aboriginal rights existed by virtue of the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
. Common law could be changed by legislation. Therefore, before 1982, the
Parliament of Canada
The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the ...
could extinguish Aboriginal rights, whereas now it can no longer extinguish any rights that still existed in 1982.
Extinguishment
In contract law, extinguishment is the destruction of a right or contract. Rawle, Francis; Bouvier, John. (1914) Bouvier's Law Dictionary and Concise Encyclopedia Extinguishment.' Pp. 1166-1167. 3rd revision (being the 8th ed.) Vernon Law Book C ...
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
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for exampl ...
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
The Musqueam Indian Band ( ; hur, xʷməθkʷəy̓əm ) is a First Nations in Canada, First Nations band government in the Canadian province of British Columbia. It is the only First Nations band whose reserve community lies within the boundari ...
had an Aboriginal right to fish for food. This was developed in ''
R. v. Van der Peet'' 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.
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)
''Haida Nation v British Columbia (Minister of Forests)'', 0043 S.C.R. 511 is the leading decision of the Supreme Court of Canada on the Crown duty to consult Aboriginal groups prior to exploiting lands to which they may have claims.
Backgrou ...
'' and ''
Taku River Tlingit First Nation v. British Columbia
Taku may refer to:
Places North America
* the Taku River, in Alaska and British Columbia
** Fort Taku, also known as Fort Durham and as Taku, a former fort of the Hudson's Bay Company near the mouth of the Taku River
** the Taku Glacier, in Ala ...
''. 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." 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. It merely states that ''Charter'' rights do not diminish Aboriginal rights; it is therefore not as important as section 35. 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
Group rights, also known as collective rights, are rights held by a group ''wikt:qua, qua'' a group rather than individually by its members; in contrast, individual rights are rights held by Individuality, individual people; even if they are grou ...
. Professor
Peter Hogg
Peter Wardell Hogg (12 March 1939 – 4 February 2020) was a New Zealand-born Canadian legal scholar and lawyer. He was best known as a leading authority on Canadian constitutional law, with the most academic citations in Supreme Court jurispru ...
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
Section 33 of the ''Canadian Charter of Rights and Freedoms'' is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (french: clause dérogatoire, links=no or ), sometimes referred to as the override power, and ...
. 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
Section 1 of the ''Canadian Charter of Rights and Freedoms'' is the section that confirms that the rights listed in the Charter are ''guaranteed''. The section is also known as the reasonable limits clause or limitations clause, as it legally all ...
.
Despite this, professors
Ted Morton
Frederick Lee Morton (born 1949), known commonly as Ted Morton, is an American-Canadian politician and former cabinet minister in the Alberta government. As a member of the Legislative Assembly of Alberta, he represented the constituency of Fo ...
and
Rainer Knopff
Rainer Knopff is a writer, professor of political science at the University of Calgary, Canada, and member of a group known as the Calgary School. He especially well known for his views about the influence of judicial decisions on Canadian public ...
, 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."
[F.L. Morton and Rainer Knopff, ''The Charter Revolution & the Court Party'' (Toronto: Broadview Press, 2000), page 42.]
See also
*
Amendments to the Constitution of Canada
Before 1982, modifying the Constitution of Canada primarily meant amending the ''British North America Act, 1867''. Unlike most other constitutions, however, the Act had no amending formula; instead, changes were enacted through Acts of the ...
*
Canadian Aboriginal law
Canadian Aboriginal law is the body of law of Canada that concerns a variety of issues related to Indigenous peoples in Canada. Canadian Aboriginal Law is different from Canadian Indigenous law: In Canada, Indigenous Law refers to the legal trad ...
*
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
*
Indian Act
The ''Indian Act'' (, long name ''An Act to amend and consolidate the laws respecting Indians'') is a Canadian act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves. First passed in 1876 and still ...
*
Indian Health Transfer Policy (Canada)
The Canadian Indian Health Transfer Policy provides a framework for the assumption of control of health services by Indigenous peoples in Canada and set forth a developmental approach to transfer centred on the concept of self-determination in hea ...
*
Numbered Treaties
The Numbered Treaties (or Post-Confederation Treaties) are a series of eleven treaties signed between the First Nations, one of three groups of Indigenous peoples in Canada, and the reigning monarch of Canada (Victoria, Edward VII or George V) ...
*
The Canadian Crown and Aboriginal peoples
The association between the Canadian Crown and Indigenous peoples in Canada stretches back to the first decisions between North American Indigenous peoples and European colonialists and, over centuries of interface, treaties were established c ...
*
Unsuccessful attempts to amend the Canadian Constitution
Footnotes
External links
Aboriginal self-government- Library of Parliament
- 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
{{DEFAULTSORT:Section Thirty-Five Of The Constitution Act, 1982
Constitution of Canada
Indigenous peoples in Canada
Aboriginal title in Canada
Legislation concerning indigenous peoples