Section 35 of the Constitution Act, 1982

Section 35 of the Constitution Act, 1982
Name	Section 35
Long title	Recognition of Aboriginal and treaty rights of the Aboriginal peoples of Canada
Enacted	1982
Jurisdiction	Canada
Related legislation	Constitution Act, 1982; Canadian Charter of Rights and Freedoms; Indian Act

Contents

Section 35 of the Constitution Act, 1982 is the constitutional provision recognizing and affirming the existing aboriginal and treaty rights of the Aboriginal peoples of Canada, including First Nations, Inuit, and Métis. It forms part of the Constitution Act, 1982 and has been the focal point of litigation involving Supreme Court of Canada, Governor General of Canada, Parliament of Canada, Canadian Charter of Rights and Freedoms, and provincial governments such as Government of British Columbia, Government of Alberta, and Government of Ontario. Section 35 has shaped relationships between Indigenous peoples and colonial and federal institutions including Royal Proclamation of 1763, Indian Act, Numbered Treaties, and modern agreements like the Nisga'a Treaty.

Background and constitutional context

Section 35 emerged during patriation debates involving Pierre Trudeau, Joe Clark, Brian Mulroney, Jean Chrétien, and Indigenous leaders such as Harold Cardinal, George Manuel, and Mary Two-Axe Earley. Its antecedents include the Royal Proclamation of 1763, the Treaty of Niagara (1764), and nineteenth-century decisions like St. Catherine's Milling and Lumber Company v. The Queen. The inclusion of Aboriginal rights was influenced by advocacy from organizations and events including the Assembly of First Nations, Native Women's Association of Canada, the Meech Lake Accord discussions, and constitutional conferences in Ottawa and Victoria Conference Centre.

The operative text—recognize and affirm "existing aboriginal and treaty rights"—has been interpreted by tribunals and courts including the Supreme Court of Canada, Federal Court of Canada, and provincial courts such as the Court of Appeal for Ontario and British Columbia Court of Appeal. Judges such as Beverley McLachlin, Antonio Lamer, Frank Iacobucci, Morris Fish, and Major General Georges Vanier's era jurists have applied tests derived from precedents like R. v. Sparrow, R. v. Van der Peet, and R. v. Gladstone. Doctrines developed include the scope of "existing" rights, the need for proof of continuity in practices traced to pre-contact periods as in R. v. Powley, and the application of the Honour of the Crown elaborated in cases involving the Department of Indian Affairs and Northern Development.

Section 35 has been interpreted to protect practices, traditions, and customs central to Indigenous identities, including fishing rights adjudicated in R. v. Sparrow, harvesting rights in R. v. Van der Peet, and Métis rights affirmed in R. v. Powley. Treaty rights from instruments such as the James Bay and Northern Quebec Agreement, the Nisga'a Final Agreement, and the Numbered Treaties have been enforced through litigation involving parties like the Grand Council of the Crees, Inuit Tapiriit Kanatami, and regional institutions including the Yukon First Nations and Nunavut Tunngavik Incorporated.

Major decisions shaping Section 35 include R. v. Sparrow (sparks test on justification), R. v. Van der Peet (test for Aboriginal rights), R. v. Powley (Métis identity test), Delgamuukw v. British Columbia (oral histories and Aboriginal title), Tsilhqot'in Nation v. British Columbia (proof of Aboriginal title), and R. v. Marshall (treaty interpretation). These rulings involved litigants and interveners such as the Council of Canadians, Canadian Civil Liberties Association, Attorney General of Canada, and provincial attorneys general, and invoked instruments like the United Nations Declaration on the Rights of Indigenous Peoples and international cases including Mabo v Queensland (No 2) for comparative reasoning.

Implementation requires negotiation, legislation, and reconciliation processes involving Indigenous and Northern Affairs Canada, provincial ministries, band councils under the Indian Act, self-government agreements with entities like the Nisga'a Lisims Government, and frameworks such as the Royal Commission on Aboriginal Peoples. Obligations include consultation and accommodation obligations articulated in cases like Haida Nation v. British Columbia (Minister of Forests) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), and fiscal arrangements exemplified by the Kelowna Accord discussions and impact-benefit agreements with corporations such as Teck Resources and Shell Canada.

Section 35 has affected self-government negotiations with entities like the Inuit Circumpolar Council, economic development projects involving Trans Mountain Pipeline, land claims settlements such as the Nunavut Agreement, and cultural revitalization efforts connected to institutions like the National Centre for Truth and Reconciliation and Canadian Museum of History. It underpins political mobilization by groups including the Assembly of First Nations, Métis National Council, and regional councils, influencing education initiatives at institutions like University of British Columbia, health programs with Indigenous Services Canada, and resource management with provincial bodies such as BC Treaty Commission.