Section Thirty-five 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. 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.

Text

The provision provides that:

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".

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'' 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'' 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)'' and '' Taku River Tlingit First Nation v. British Columbia''. 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. 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.

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."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
* Canadian Aboriginal law
*Canadian Charter of Rights and Freedoms
*Indian Act
*Indian Health Transfer Policy (Canada)
* Numbered Treaties
* The Canadian Crown and Aboriginal peoples
*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