Section 35

Section 35
Moxy · CC BY-SA 4.0 · source
Title	Section 35
Jurisdiction	Canada
Enacted	1982
Part of	Constitution Act, 1982
Subject	Aboriginal and treaty rights
Notable cases	R v Sparrow; R v Van der Peet; Delgamuukw v British Columbia; Saskatchewan Federation of Labour v Saskatchewan; Mikisew Cree First Nation v Canada

Section 35

Section 35 is a provision of the Constitution Act, 1982 that recognizes and affirms existing Aboriginal and treaty rights of the Indigenous peoples of Canada. It anchors a body of constitutional law affecting relations among the Crown (monarchy), First Nations, Inuit, and Métis. The provision has been central to landmark rulings involving claims, land rights, self-government, and consultation obligations involving courts such as the Supreme Court of Canada and tribunals established under provincial statutes.

Historical Origins

The origins of the provision trace to political negotiations leading to patriation of the British North America Act, 1867 and the package of rights and reforms culminating in the Constitution Act, 1982. Key actors included Pierre Trudeau, Jean Chrétien, and Indigenous leaders such as Phil Fontaine and George Erasmus, along with organizations like the Assembly of First Nations, the Native Women's Association of Canada, and the Métis National Council. The constitutional patriation debates intersected with earlier instruments and treaties such as the Royal Proclamation of 1763, the Numbered Treaties, and agreements involving the Hudson's Bay Company and colonial administrations in what became Ontario, Quebec, British Columbia, and the Prairie Provinces. The inclusion responded to assertions arising from cases involving R v Drybones and political mobilization exemplified by events like the Calder v British Columbia (Attorney General) litigation and the activism around the 1973 Indian Control of Indian Education proposal. Federal-provincial conferences, including meetings in Ottawa and negotiations with provincial leaders like Peter Lougheed and Bill Davis, shaped the clause’s drafting.

Legal Text and Scope

The operative text affirms: "The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed." The phraseology echoes legal instruments and doctrines found in precedents such as the Royal Proclamation of 1763 and statutory frameworks like the Indian Act. Interpretive guidance draws on constitutional principles developed in the Supreme Court of Canada jurisprudence and by scholars at institutions such as McGill University, University of Toronto, and University of British Columbia. The terms "existing", "Aboriginal", "treaty", and "rights" have been parsed against historical documents including the Treaty of Niagara, the Treaty of 1818, and documentation from the Department of Indian Affairs and Northern Development. The provision’s scope interacts with federal statutes (for example, legislation introduced by Indigenous and Northern Affairs Canada) and provincial statutes in jurisdictions such as Alberta and Saskatchewan, while remaining constrained by constitutional division of powers decisions involving the Privy Council's legacy and later Canadian constitutional jurisprudence.

Judicial Interpretation and Case Law

Courts have developed doctrines to operationalize the provision. In R v Sparrow, the Supreme Court of Canada articulated a test balancing Aboriginal rights against federal regulatory objectives. In R v Van der Peet, the Court established criteria for the proof of Aboriginal rights rooted in practices, customs, and traditions. Major decisions including Delgamuukw v British Columbia clarified title, oral history evidentiary use, and the content of exclusive possession claims. Cases such as Sparrow, Clyde River (Hamlet of) v Petroleum Geo‑Services Inc., and Mikisew Cree First Nation v Canada addressed fiduciary duties, justifiable infringement, and consultation obligations. The Court’s approach in Tsilhqot'in Nation v British Columbia recognized Aboriginal title in a province, reshaping land remedy frameworks. Additionally, disputes resolved through tribunals or negotiated settlements reference precedents set by judges like Beverley McLachlin and Frank Iacobucci, and involve procedural instruments such as comprehensive land claims agreements like the Nunavut Land Claims Agreement and the James Bay and Northern Quebec Agreement.

Political and Social Impact

The constitutional recognition has influenced political negotiations, Indigenous mobilization, and public policy across Canada. It contributed to treaty modernizations negotiated by parties including Canada, provincial governments like British Columbia, and Indigenous governance bodies such as the Yukon First Nations and Nisga'a Nation. Social movements and legal advocacy by groups like the Native Women's Association of Canada and legal clinics at Osgoode Hall Law School have used Section 35 jurisprudence to advance claims related to land, harvesting, and cultural protection. Policy outcomes include changes in resource development protocols involving corporations such as Teck Resources and regulatory agencies including the National Energy Board (now Canada Energy Regulator), and affected political platforms of leaders like Justin Trudeau and opposition figures. High-profile confrontations—seen in disputes like the Calgary Elk River protests and blockades associated with pipeline debates—reflect Section 35’s role in shaping reconciliation dialogues referenced in the Truth and Reconciliation Commission of Canada calls to action.

Comparative Provisions in Other Jurisdictions

Other jurisdictions recognize Indigenous rights in constitutional or statutory forms. Comparative models include constitutional protections in New Zealand via the Treaty of Waitangi jurisprudence, statutes and common law recognition in the United States involving the Indian Reorganization Act and treaties adjudicated by the United States Supreme Court, and rights frameworks in Australia following decisions such as Mabo v Queensland (No 2). International instruments like the United Nations Declaration on the Rights of Indigenous Peoples and bodies such as the Inter-American Commission on Human Rights inform comparative analysis alongside academic studies from scholars at Harvard Law School, Yale Law School, and Oxford University. These comparisons highlight differing approaches to title, treaties, self-determination, and remedies, involving legal actors such as the High Court of Australia and institutions like the Permanent Forum on Indigenous Issues.

Category:Canadian constitutional law Category:Indigenous rights in Canada