Section Thirty-five of the Constitution Act, 1982
Encyclopedia
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada
. The section, while within the Constitution Act, 1982
and thus 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 aboriginal 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.
The word "existing" in section 35(1) has created the need for the Supreme Court 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 federal Parliament could extinguish Aboriginal rights, where as 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.
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 v. British Columbia, [2004] 2 S.C.R. 511 and Taku River Tlingit First Nation v. British Columbia, [2004] 3 S.C.R. 550. 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.
. 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 F.L. 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."
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
. The section, while within the Constitution Act, 1982
Constitution Act, 1982
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, and changing the latter's name in Canada to the Constitution Act, 1867...
and thus the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, falls outside the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. 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
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...
) and the right to enforcement of treaties. There remains a debate over whether the right to aboriginal 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
Aboriginal rights refer to the activities, practice, and traditions of the aboriginal peoples in Canada that are integral to the distinctive culture of aboriginal peoples.The word "existing" in section 35(1) has created the need for the Supreme Court to define what Aboriginal rights "exist". The Supreme Court ruled in R. v. Sparrow
R. v. Sparrow
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 of the Constitution Act, 1982...
that, before 1982 (when section 35 came into effect), Aboriginal rights existed by virtue of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. Common law could be changed by legislation. Therefore, before 1982, the federal Parliament could extinguish Aboriginal rights, where as now it can no longer extinguish any rights that still existed in 1982. Extinguishment
Extinguishment
Extinguishment is the destruction of a right or contract. If the subject of the contract is destroyed , then the contract may be made void. Extinguishment occurs in a variety of contracts, such as land contracts , debts, rents, and right of ways...
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
R. v. Van der Peet
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...
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 aboriginals 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 v. British Columbia, [2004] 2 S.C.R. 511 and Taku River Tlingit First Nation v. British Columbia, [2004] 3 S.C.R. 550. 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 Aboriginals is section 25Section Twenty-five of the Canadian Charter of Rights and Freedoms
Section Twenty-five 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...
. 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
Individual rights
Group rights are rights held by a group rather than by its members separately, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their group membership or lack thereof...
. Professor Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
has argued there are negative and positive effects of excluding section 35 from the Charter. Section 35 cannot be limited by section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
or the notwithstanding clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
. However, section 24
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
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 F.L. Morton and Rainer Knopff
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 policy...
, 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."
See also
- Amendments to the Constitution of CanadaAmendments to the Constitution of CanadaAmendments to the Constitution of Canada are changes to the Constitution of Canada initiated by the government. Only since 1982 has there been an official protocol to amend the Constitution.- History :...
- Canadian Aboriginal lawCanadian Aboriginal lawCanadian Aboriginal law is the body of Canadian law that concerns a variety of issues related to aboriginal peoples in Canada. Aboriginal law provides certain rights to land and traditional practices...
- Canadian Charter of Rights and FreedomsCanadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
- Indian ActIndian ActThe Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
- Indian Health Transfer Policy (Canada)Indian Health Transfer Policy (Canada)The Indian Health Transfer Policy of Canada, provided a framework for the assumption of control of health services by Aboriginal Canadians and set forth a developmental approach to transfer centred on the concept of self-determination in health. Through this process, the decision to enter into...
- Numbered TreatiesNumbered TreatiesThe numbered treaties are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning Monarch of Canada from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements...
- The Canadian Crown and Aboriginal peoples
- Unsuccessful attempts to amend the Canadian ConstitutionUnsuccessful attempts to amend the Canadian ConstitutionSince the Constitution of Canada was patriated, in 1982, only ten minor Amendments to the Constitution of Canada have been passed. There have, however, been a number of unsuccessful attempts to amend the Constitution under the new amending formula....
External links
- Aboriginal self-government - Library of Parliament
- Claims and Treaties: Aboriginal Canada Portal - The Government of Canada
- Recognition of inherent rights through legislative initiatives - The Indigenous Bar Association in Canada
- Taku River Tlingit First Nation v. British Columbia - Supreme Court of Canada
- Haida Nation v. British Columbia Supreme Court of Canada
- Bellow 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