Jonah Patel
Section 35 of the Constitution Act, 1982, recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. It provides constitutional protection to the rights of indigenous peoples in Canada, including the Indian, Inuit, and Métis peoples. The section falls outside the Canadian Charter of Rights and Freedoms, and it was added to the constitution after strong advocacy and direct action by Canada's Aboriginal peoples.
| Characteristics | Values |
|---|---|
| Constitutional protection | Protects the indigenous and treaty rights of indigenous peoples in Canada |
| Placement | Falls outside the Canadian Charter of Rights and Freedoms |
| Rights | Fishing, logging, hunting, the right to land, and the right to enforcement of treaties |
| Self-government | The right to indigenous self-government is not defined, but the Canadian government has a policy recognizing the inherent right of self-government under section 35 |
| Extinguishment of rights | Cannot occur unless there is an act that shows a "clear and plain intention" on the government's part to deny those rights |
| Equality | Aboriginal and treaty rights are guaranteed equally to male and female persons |
| Aboriginal rights | Recognizes and affirms existing Aboriginal rights, but does not define them |
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What You'll Learn
Recognises and affirms existing Aboriginal and treaty rights in Canada
Section 35 of the Constitution Act, 1982, recognises and affirms the existing Aboriginal rights and treaty rights of the Aboriginal peoples of Canada. This includes the Indian, Inuit, and Métis peoples of Canada. The section does not define the term "Aboriginal rights" or provide a closed list of rights, but some examples of rights protected by Section 35 include fishing, logging, hunting, and the right to land (also known as aboriginal title).
The inclusion of Section 35 in the Canadian Constitution was the result of campaigns and demonstrations by Aboriginal groups in Canada, who successfully fought to have their rights enshrined and protected. Notably, the Constitution Express, a two-year campaign that raised concerns before international audiences, including the United Nations and the British Parliament, was described as a pivotal moment in this process.
It is important to note that Section 35 does not create Aboriginal rights; instead, it recognises rights that have existed before and continue to exist after European contact. The rights protected by Section 35 are those that existed when the Constitution Act, 1982, came into effect and do not include rights that were extinguished before 1982. The phrase "existing Aboriginal rights" is interpreted flexibly to permit their evolution over time.
Section 35 also addresses treaty rights, which are rights set out in either historic or modern treaty agreements. Treaty rights include rights acquired through land claims agreements, as clarified in Subsection 35(3), added in 1983. Additionally, Section 35 guarantees that the rights it recognises are held equally by male and female persons.
While Section 35 provides constitutional protection for Aboriginal and treaty rights, it falls outside the Canadian Charter of Rights and Freedoms. This placement within the Constitution is considered significant, and it has been debated whether it allows for Aboriginal self-government, separate from the individual rights outlined in the Charter.
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Does not define Aboriginal rights
Section 35 of the Constitution Act, 1982, provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. While the section falls within the Constitution of Canada, it is placed outside the Canadian Charter of Rights and Freedoms.
Section 35 does not define the term "Aboriginal rights" or provide a closed list of rights. Instead, it recognises and affirms existing Aboriginal and treaty rights, which had not been extinguished by surrender or legislation before 1982. The Supreme Court of Canada has clarified that any Aboriginal rights extinguished before 1982 are not protected under the Constitution.
The interpretation of Aboriginal rights has included a range of cultural, social, political, and economic rights, such as the right to land, fishing, hunting, and the practice of one's culture. The inclusion of Section 35 in the Constitution was the result of campaigns and demonstrations by Aboriginal groups in Canada, who successfully fought for the recognition and protection of their rights.
The word existing in Section 35(1) has led to debates about the specific Aboriginal rights that are recognised. The Supreme Court ruled in R. v. Sparrow that Aboriginal rights existed by virtue of common law before 1982, and common law could be changed by legislation. However, the Court did not define what specific rights existed, leaving it to Aboriginal peoples to define their rights through litigation.
In summary, Section 35 of the Constitution Act, 1982, recognises and protects Aboriginal rights without providing a definition or closed list of those rights. The interpretation and definition of Aboriginal rights have been left to the courts and Aboriginal peoples themselves, leading to ongoing discussions and litigation.
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Does not create Aboriginal rights
Section 35 of the Constitution Act, 1982, provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. It recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal peoples, including the Indian, Inuit, and Métis peoples of Canada. However, it is important to note that Section 35 does not create Aboriginal rights but rather recognizes and affirms rights that existed before the enactment of this section.
Before 1982, Canada's Constitution did not protect Aboriginal and treaty rights. These rights were only recognized through court decisions. The inclusion of Section 35 in the Constitution Act, 1982, was the result of extensive campaigns and demonstrations by Aboriginal groups in Canada, who fought to have their rights enshrined and protected in the Constitution. As a result, Section 35 provides constitutional protection for Aboriginal rights that existed at the time it came into effect in 1982. It is important to emphasize that Section 35 does not create new rights but rather provides constitutional protection for rights that had existed before European contact and remained unchanged afterward.
The word existing in Section 35(1) has created a need for the Supreme Court of Canada to define what constitutes Aboriginal rights. The Supreme Court ruled in R. v. Sparrow that, before 1982, Aboriginal rights existed by virtue of common law, which could be changed by legislation. However, Section 35 does not revive rights that were extinguished before 1982. An existing Aboriginal right cannot be interpreted to include the specific manner in which it was regulated before 1982. The phrase "existing Aboriginal rights" must be interpreted flexibly to allow for their evolution over time.
While Section 35 provides important recognition and protection of existing Aboriginal rights, it does not define the term "Aboriginal rights" or provide an exhaustive list of what these rights encompass. Some of the rights that Section 35 has been found to protect include fishing, logging, hunting, the right to land, and the right to enforce treaties. There remains a debate over whether the right to indigenous self-government is included within Section 35, as the Supreme Court of Canada has not issued a ruling on this matter as of 2006.
In summary, Section 35 of the Constitution Act, 1982, plays a crucial role in recognizing and affirming the existing Aboriginal and treaty rights of Aboriginal peoples in Canada. However, it is important to emphasize that this section did not create new rights but rather provided constitutional protection for rights that had existed prior to its enactment. The interpretation and application of Section 35 continue to evolve through court decisions, shaping the understanding of Aboriginal rights in Canada.
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Provides constitutional protection for indigenous and treaty rights
Section 35 of the Constitution Act, 1982, provides constitutional protection for the indigenous and treaty rights of indigenous peoples in Canada. This section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms.
Section 35 does not define the term "aboriginal rights" or provide a closed list. However, it recognises and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada. This includes the Indian, Inuit, and Métis peoples of Canada. The rights protected by Section 35 include fishing, logging, hunting, the right to land, and the right to enforcement of treaties.
The inclusion of Section 35 in the Constitution was the result of advocacy and direct action by Canada's Aboriginal peoples. Notably, the Constitution Express, led by contemporary activist Arthur Manuel, played a significant role in ensuring the inclusion of Aboriginal rights in the Constitution. The National Leader of the National Indian Brotherhood (later known as the Assembly of First Nations), Delbert Riley, emphasised the importance of recognising Aboriginal rights as they existed before and after European contact.
The interpretation of "existing" Aboriginal rights has been a topic of discussion and clarification by the Supreme Court of Canada. In R. v. Sparrow, the Court ruled that before 1982, Aboriginal rights existed by virtue of common law, which could be changed by legislation. The Court further clarified that Section 35(1) applies to rights that were in existence when the Constitution Act, 1982, came into effect and does not revive extinguished rights.
While Section 35 provides constitutional protection for indigenous and treaty rights, it is important to note that these rights are not absolute and can be encroached upon given sufficient reason. Additionally, the Supreme Court of Canada has not ruled on whether the right to indigenous self-government is included within Section 35 as of 2006.
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Does not fall under the Canadian Charter of Rights and Freedoms
Section 35 of the Constitution Act, 1982, provides constitutional protection and recognises the existing aboriginal and treaty rights of indigenous peoples in Canada. Despite being within the Constitution of Canada, it falls outside the Canadian Charter of Rights and Freedoms.
The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. It guarantees certain political rights to Canadian citizens and civil rights to everyone in Canada. The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982.
Section 35, on the other hand, is placed in Part II of the Constitution Act, 1982. This placement is considered significant. While the Charter is concerned with individual rights, Section 35 has been interpreted as allowing for Aboriginal self-government.
The rights protected by Section 35 include fishing, logging, hunting, the right to land, and the right to enforcement of treaties. Notably, Section 35 does not define the term "aboriginal rights" or provide a closed list of rights. The Supreme Court of Canada has clarified that Section 35 does not revive rights that were extinguished before 1982.
The exclusion of Section 35 from the Charter has both negative and positive effects. While Section 24 of the Charter, which allows remedies for rights violations, is not available to Section 35, the rights under Section 35 cannot be limited by Section 1 or the notwithstanding clause of the Charter.
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Frequently asked questions
Section 35(1) of the Constitution Act, 1982, recognises and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada.
Aboriginal rights are collective rights that flow from the status of Indigenous peoples as the original peoples of Canada. These rights are based on the continued occupation of lands by Aboriginal peoples since before European settlement.
Section 35 does not define Aboriginal rights or provide a closed list. However, it has been found to protect rights such as fishing, logging, hunting, and the right to land.
The placement of Section 35 in Part II of the Constitution is considered significant as it allows for Aboriginal self-government.
Before 1982, the Parliament of Canada could extinguish Aboriginal rights, but after the enactment of Section 35, it can no longer extinguish any rights that still existed in 1982. Extinguishment of rights now requires an act that shows a "clear and plain intention" to deny those rights.
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