Why is Section 35 of the Constitution Important?

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of Indigenous peoples in Canada. This section is significant because it constitutionally protects these rights and provides a framework for defining the relationship between Indigenous peoples, the Canadian government, and Canadian society.

What does Section 35 state?

The exact text of Section 35 states:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

In summary, this section constitutionally recognizes and affirms the Aboriginal rights of First Nations, Inuit and Métis peoples, as well as treaty rights. It defines Aboriginal peoples and makes clear that treaty rights include modern land claims agreements. The section also guarantees these rights equally to men and women.

Why is this significant?

Prior to 1982, there was no constitutional protection of Aboriginal and treaty rights. This meant federal and provincial governments could infringe upon or ignore these rights without constitutional consequence. Section 35 changed this by entrenching these rights in the supreme law of Canada.

Here are some key reasons why Section 35 is so important:

It provides constitutional protection for Aboriginal and treaty rights, elevating them above federal and provincial law. These rights cannot be unilaterally abolished.
It recognizes Aboriginal peoples as distinct, rights-bearing peoples whose rights exist as a result of their status as the original inhabitants and caretakers of the land.
It affirms that Aboriginal rights persist today, are valid under Canadian law, and must be respected in contemporary times.

It sets out a constitutional framework requiring the government to negotiate the definition and implementation of these rights through agreements with Aboriginal groups.
It entrenches treaty rights in the Constitution, ensuring the fulfillment of historical and modern treaties made with Aboriginal nations.
It establishes that Aboriginal peoples must be consulted when their rights may be affected by government decisions.

Overall, Section 35 provides a solid constitutional basis from which Indigenous peoples can assert their rights and negotiate their role within Canada. It has legal and political significance that continues to shape relations between Indigenous peoples and Canadian society.

How are Aboriginal Rights Defined and Proven?

One challenging issue has been defining the scope of Aboriginal rights protected under Section 35. In subsequent court decisions, the Supreme Court of Canada has further clarified the nature and test for Aboriginal rights:

They must be rooted in the traditional practices, customs and traditions of the Aboriginal group claiming the right.

They do not need to be set out in a treaty or royal proclamation to be valid.
The claimant group must prove a connection with the claimed right pre-dating European contact.
The right must be integral to the group’s distinctive culture.

The right does not need to be exercised in exactly the same way as in the past but can evolve over time.

This connects Aboriginal rights to the historical presence and cultural traditions of Aboriginal groups prior to the arrival of Europeans. Examples recognized by courts include fishing, hunting, trapping, gathering, sacred and spiritual practices, and rights to land and resources.

How are Treaty Rights Defined and Proven

Treaty rights arise from formal agreements between Aboriginal groups and the Crown. Unlike Aboriginal rights, treaty rights do not need to exist before European contact. They can stem from modern land claim agreements as well as historical treaties.

Here are some key aspects of treaty rights:

They are based on the specific terms and promises set out in a treaty.
The treaty defines the specific rights and obligations of each party.

Treaties may describe rights to land, hunting, fishing, trapping, gathering, economic benefits, and/or cultural practices.
The terms of the treaty itself define the treaty right – no additional proof of connection to traditional practices is needed.
Treaty rights are enforceable legal obligations binding on the Crown.

Examples include historic treaties signed with First Nations, modern comprehensive land claim agreements, and specific rights treaties like hunting and fishing rights.

How are Aboriginal and Treaty Rights Applied?

Section 35 recognizes that Aboriginal and treaty rights exist within the legal framework of Canada. These rights may sometimes come into conflict with the interests of federal and provincial governments. To determine how to balance competing interests, the Supreme Court established guidelines requiring:

Consultation – governments must consult with Aboriginal groups if rights may be impacted.

Justification – rights can only be infringed for a compelling public purpose.
Fair compensation – infringement may require compensation.
Honour of the Crown – the Crown must act honourably in dealings with Aboriginal peoples.

This aims to balance Aboriginal rights with the interests of broader society. Consultation, justification and compensation help determine what constitutes an acceptable infringement of a right. The honour of the Crown ensures dealings are fair and equitable. These principles shape modern negotiations and agreements with Indigenous groups.

Major Court Cases on Aboriginal and Treaty Rights

There have been several influential Supreme Court decisions that have interpreted, applied and set important precedents regarding Section 35 rights:

R v Sparrow (1990)

Upheld Musqueam fishing rights in BC under Section 35.

Set key tests for proving Aboriginal rights and justifying infringements.
Required fair compensation for infringement of rights.
Affirmed the Crown’s duty to consult Aboriginal groups.

R v Van der Peet (1993)

Set out tests for Aboriginal rights based on traditional customs and practices.
Confirmed rights do not need to be set out in treaties.
Rights must be integral to distinctive Aboriginal culture.

Delgamuukw v British Columbia (1997)

Recognized Gitxsan and Wet’suwet’en title to traditional lands in BC.
Outlined tests for Aboriginal title to land based on occupation and use.
Required governments to consult over development on title lands.

Haida Nation v British Columbia (2004)

Affirmed the Crown’s duty to consult and accommodate Aboriginal peoples.
Set guidelines for scope of consultation required in resource decisions.
Created a legal duty to consult even when rights not fully proven.

These and other cases have incrementally built a robust jurisprudence giving legal force and clarity to Section 35 rights.

Modern Treaties and Agreements

Section 35 has also provided the impetus for modern treaties and agreements defining the rights of Aboriginal groups. Notable examples include:

James Bay and Northern Quebec Agreement (1975)

Covered parts of Quebec Cree and Inuit traditional territory.

Provided defined lands, hunting/fishing/trapping rights, and financial compensation.
First modern land claims agreement signed after years of negotiations.

Inuvialuit Final Agreement (1984)

Covered Inuvialuit lands in Northwest Territories.

Granted land, hunting/fishing/trapping rights, and financial benefits.
Became a model for later negotiations in the North.

Nunavut Land Claims Agreement (1993)

Led to the creation of Nunavut as a new territory in 1999.

Gave Inuit lands, wildlife co-management systems, and economic benefits.
Largest Aboriginal treaty in Canada covering 2 million square kilometres.

Nisga’a Treaty (1999)

First modern treaty in British Columbia.

Recognized Nisga’a ownership of 2000 square kilometres of land.
Provided self-government powers and fishing/hunting rights.

These agreements demonstrate the role of Section 35 in shaping modern treaties that attempt to reconcile historical grievances and land disputes.

Self-Government Agreements

Along with land and resource rights, Section 35 has enabled many First Nations to negotiate self-government agreements. These are negotiated alternatives to the Indian Act that provide greater autonomy and law-making powers. Examples include:

Yukon First Nations Self-Government Agreements

Umbrella final agreement signed in 1993, followed by individual First Nation agreements.
Transferred powers over education, justice, health, taxation, land use planning and more to First Nations.

Enabled First Nations to pass laws, deliver programs, provide services in their communities.

Nisga’a Final Agreement (2000)

Enabled Nisga’a Lisims Government to pass laws on culture, language, lands, resources.
Transferred jurisdiction over education, child/family services, justice, policing to Nisga’a.

Created Nisga’a citizenship distinct from the Indian Act.

Tsawwassen First Nation Final Agreement (2009)

Provided first urban self-government agreement in British Columbia.
Transferred authority over lands, resources, economic development and more.

Recognized Tsawwassen First Nation citizenship and government.

These agreements demonstrate how Section 35 is enabling Indigenous self-determination and reduced reliance on the Indian Act system.

Ongoing Negotiations and Reconciliation Efforts

Section 35 has compelled the federal government to negotiate outstanding land claims and self-government agreements with dozens of First Nations, Inuit and Métis groups across Canada. Some include:

Comprehensive land claims by First Nations in Yukon, Northwest Territories, British Columbia, Ontario, Quebec and Atlantic Canada.
Self-government agreements with First Nations in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Atlantic Canada and the North.
Nation-to-nation negotiations over rights, title and jurisdiction in British Columbia.

Resolution of Métis land and harvesting rights in Manitoba, Saskatchewan and Alberta.
Implementation of historic Numbered Treaties across the Prairies and Northern Ontario.

This ongoing process of negotiation aims to build new relationships and resolve grievances amongst Indigenous communities. Section 35 provides the constitutional basis compelling this. The exact scope of rights under Section 35 continues to be defined through these negotiations and court decisions.

Impact on Resource Development and Environmental Protection

Section 35 has also influenced natural resource management and economic development across Canada. Aboriginal and treaty rights have given Indigenous groups leverage and legal powers to manage lands and protect traditional territories. Key impacts include:

Input into mining, forestry, energy and pipeline projects through the duty to consult process.
Negotiated impact-benefit agreements between companies and Aboriginal communities for major projects.

Partnerships with Aboriginal groups in environmental assessments and monitoring.
Co-management of lands, parks and fisheries resources in modern treaties and agreements.
Legal challenges over infringements of hunting, fishing and trapping rights.

Lawsuits asserting Aboriginal title to halt or modify industrial development.

This demonstrates how Section 35 is shaping Indigenous involvement in natural resource management across the country.

Criticisms and Limitations

While Section 35 is a milestone affirmation of rights, it has real and perceived limitations. Some key critiques include:

It is simply a framework – rights must still be identified, defined and negotiated with the government.
Negotiations move slowly while resource development can still infringe on traditional lands.
Proof of some rights involves using western legal tests foreign to Indigenous peoples.

Aboriginal participation in resource development and environmental regulation remains limited in practice.
Governments try to only recognize specific activities rather than broad rights.
Rights can still be infringed if the government claims a justification.

It promotes rights defined by Canadian law rather than inherent Indigenous sovereignty.

Debates continue over Section 35 as simply recognizes rights within Canadian law versus implying Indigenous self-determination. There are calls to go beyond Section 35 in charting a new relationship not limited by Canadian constitutional frameworks.

Conclusion

Overall, Section 35 of the Constitution Act, 1982 has had profound and far-reaching impacts on Indigenous rights in Canada. It constitutionally entrenched these rights for the first time, compelling the Crown to negotiate the recognition, definition and implementation of Aboriginal and treaty rights. Court decisions have given legal force to Section 35 and guided negotiations. While limitations and critiques persist, Section 35 remains the cornerstone for advancing Indigenous rights and reconciliation in Canada. It will shape political debates and court cases for generations to come.