- Section Thirty-five of the Constitution Act, 1982
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. As of 2006the 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. [Department of Indian and Northern Affairs, The Government of Canada's Approach to Implementation ofthe Inherent Right and the Negotiation of Aboriginal Self-Government, available at: http://www.ainc-inac.gc.ca/pr/pub/sg/plcy_e.html]
The provision provides that:cquote|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.
Aboriginal rights protect 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" 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, whereas now it can no longer extinguish any rights that still existed in 1982.
Honour of the Crown
As part of the historical relationship between them, any time the government is interacting with aboriginal 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",  2 S.C.R. 511 and " Taku River Tlingit First Nation v. British Columbia",  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." ["Haida", at para. 64] The determination of such a duty depend 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 25. It merely states that "Charter" rights do not diminish Aboriginal rights; it is therefore not as important as section 35. [Peter W. Hogg, "Constitutional Law of Canada". 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 631.] 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. [Kent McNeil, "Aboriginal Governments and the Canadian Charter of Rights and Freedoms," (Canada, Royal Commission on Aboriginal Peoples, 1996), p. 67.] Professor Peter Hogghas 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. [Hogg, 621.]
Despite this, professors
F.L. Mortonand 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." [F.L. Morton and Rainer Knopff, "The Charter Revolution & the Court Party" (Toronto: Broadview Press, 2000), page 42.]
Watch two documentaries on Constitutional Conferences on Aboriginal Rights. [http://www.nfb.ca/enclasse/doclens/visau/index.php?mode=view&filmId=16933&language=english&sort=title#] [http://www.nfb.ca/enclasse/doclens/visau/index.php?mode=view&filmId=17538&language=english&sort=title#]
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