The duty to consult: constitutional recognition of treaty and aboriginal rights.

AuthorKennedy, Priscilla
PositionFeature Report on Advances in Aboriginal Law


Confederation established Canada as a federal country, originally as a Dominion in 1867, and divided legislative powers between Parliament (the House of Commons and the Senate) and the provincial legislatures. Parliament was given legislative authority over a list of subject matters in section 91 and the provinces were given legislative authority over a list of subject matters in section 92. Municipal governments, school boards and hospitals are under the legislative authority of the provinces under sections 92(8), 93 and 92(7). Until 1982, Indians were generally considered to be in the same position under the authority of Parliament under section 91(24): Indians and Lands reserved for the Indians. In 1982, the Canadian Constitution was "repatriated" by the Constitution Act, 1982, which consists of the Canadian Charter of Rights and Freedoms and a number of other parts including Part II Rights of the Aboriginal Peoples of Canada in section 35.

For many years after Confederation there were a number of cases which were concerned with determining whether or not Canada of the provinces had constitutional legislative authority over a particular subject matter. Now, Canada is in the same kind of period: determining when a subject matter is affected by Aboriginal and treaty rights so that a duty to consult arises. As Chief Justice Lamer said in Delgamuukw, [1997] 3 S.C.R. 1010, para. 186, "negotiated settlements with good faith and give and take on all sides" would lead to "the reconciliation of the preexistence of aboriginal societies with the sovereignty of the Crown".

Section 35 provides:

(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 Metis 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 in this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

These constitutional rights, which were recognized and affirmed by section 35, are also protected by section 25 of the Charter.

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain...

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