Section 35 of the Constitution Act, 1982

Last updated

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 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]

Contents

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]

See also

Footnotes

  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.
  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.
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.

Related Research Articles

<i>Canadian Charter of Rights and Freedoms</i> 1982 Canadian constitutional legislation

The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all governments in Canada. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982, as part of the Constitution Act, 1982.

<span class="mw-page-title-main">Law of Canada</span>

The legal system of Canada is pluralist: its foundations lie in the English common law system, the French civil law system, and Indigenous law systems developed by the various Indigenous Nations.

The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.

<i>R v Sparrow</i> Supreme Court of Canada case

R v Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35(1) of the Constitution Act, 1982. The Court held that Aboriginal rights, such as fishing, in existence in 1982 are protected under the Constitution of Canada and so they cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada.

Section 28 of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada. It does not contain a right so much as it provides a guide as to how to interpret rights in the Charter. Specifically, section 28 addresses concerns of sexual equality, and was modelled after the proposed Equal Rights Amendment in the United States.

<i>Delgamuukw v British Columbia</i> 1977 Supreme Court of Canada case

Delgamuukw v British Columbia, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen, Delgamuukw-Gisday’wa, or simply Delgamuukw, is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title in Canada. The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia. The plaintiffs lost the case at trial, but the Supreme Court of Canada allowed the appeal in part and ordered a new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982, defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation.

Section 25 of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter. While section 25 is also the Charter section that deals most directly with Aboriginal peoples in Canada, it does not create or constitutionalize rights for them.

<i>R v Van der Peet</i> Supreme Court of Canada case

R v Van der Peet, [1996] 2 S.C.R. 507 is a leading case on Aboriginal rights under section 35 of the Constitution Act, 1982. The Supreme Court held that Aboriginal fishing rights did not extend to commercial selling of fish. From this case came the Van der Peet test for determining if an Aboriginal right exists. This is the first of three cases known as the Van der Peet trilogy which included R v NTC Smokehouse Ltd and R v Gladstone.

<i>R v Guerin</i> Supreme Court of Canada case

Guerin v The Queen [1984] 2 S.C.R. 335 was a landmark Supreme Court of Canada decision on Aboriginal rights where the Court first stated that the government has a fiduciary duty towards the First Nations of Canada and established Aboriginal title to be a sui generis right.

<i>Native Womens Assn of Canada v Canada</i> Supreme Court of Canada case

Native Women's Assn of Canada v Canada, [1994] 3 S.C.R. 627, was a decision by the Supreme Court of Canada on section 2, section 15 and section 28 of the Canadian Charter of Rights and Freedoms, in which the Court decided against the claim that the government of Canada had an obligation to financially support an interest group in constitutional negotiations, to allow the group to speak for its people. The case resulted from negotiations for the Charlottetown Accord, in which various groups representing Aboriginal peoples in Canada were financially supported by the government, but the Native Women's Association of Canada (NWAC) was not. Since NWAC claimed the other Aboriginal groups primarily represented Aboriginal men, it argued that section 28 could be used so that section 2 required the government to provide an equal benefit to Aboriginal women, supposedly represented by NWAC.

<i>R v Gladstone</i> Supreme Court of Canada case

R v Gladstone, [1996] 2 S.C.R. 723 is a leading Supreme Court of Canada decision on non-treaty Aboriginal rights under section 35 of the Constitution Act, 1982. The Court modified the Sparrow test for the extinguishment of Aboriginal rights to give more deference to the government in protecting commercial fishing rights.

<span class="mw-page-title-main">Aboriginal title</span> Concept in common law of indigenous land rights persisting after colonization

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty to that land by another colonising state. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.

<span class="mw-page-title-main">Canadian Aboriginal law</span> Canadian law regarding indigenous people

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 traditions, customs, and practices of Indigenous peoples and groups. Aboriginal peoples as a collective noun is a specific term of art used in legal documents, including the Constitution Act, 1982, and includes First Nations, Inuit and Métis people. Canadian Aboriginal law provides certain constitutionally recognized rights to land and traditional practices. Canadian Aboriginal Law enforces and interprets certain treaties between the Crown and Indigenous people, and manages much of their interaction. A major area of Aboriginal law involves the duty to consult and accommodate.

Brian Slattery, B.A., BCL, D.Phil., F.R.S.C., is a Professor Emeritus of Law at Osgoode Hall Law School, York University, in Toronto, Ontario, Canada. He is a prominent academic in Canadian Constitutional Law and Aboriginal rights discourse. He practices Aboriginal law at Slattery & Slattery.

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.

R. v. Powley, 2003 SCC 43, commonly called the Powley ruling, is a Supreme Court of Canada case defining Métis Aboriginal rights under section 35(1) of the Constitution Act, 1982.

<span class="mw-page-title-main">Peter W. Hutchins</span> Canadian legal scholar (1945–2023)

Peter William Hutchins was a Canadian lawyer specializing in Canadian Aboriginal law. He was "one of [Canada's] top litigators in aboriginal cases".

Indigenous or Aboriginal self-government refers to proposals to give governments representing the Indigenous peoples in Canada greater powers of government. These proposals range from giving Aboriginal governments powers similar to that of local governments in Canada to demands that Indigenous governments be recognized as sovereign, and capable of "nation-to-nation" negotiations as legal equals to the Crown, as well as many other variations.

In Canada, the duty to consult and accommodate with Aboriginal peoples arises when the Crown contemplates actions or decisions that may affect Aboriginal or Treaty rights. This duty arises most often in the context of natural resource extraction such as mining, forestry, oil, and gas.

The Van der Peet test or the Integral to a Distinctive Culture Test is a legal test used in Canada to determine whether an activity is considered an "Aboriginal right" under section 35 of the Canadian Constitution. The test was established in the landmark Supreme Court of Canada case R. v. Van der Peet (1996). The test has three parts, which must all be satisfied for the activity to be considered an Aboriginal right:

  1. The practice, custom, or tradition must be an element of a practice, custom, or tradition integral to the distinctive culture of the Aboriginal group claiming the right.
  2. The practice, custom, or tradition must have existed prior to contact with Europeans.
  3. The practice, custom, or tradition must have been central to Aboriginal society's way of life.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.