Federal Power and Federal Duty: Reconciling Sections 91(24) and 35(1) of the Canadian Constitution
Author | Brian Bird |
Pages | 3-14 |
ARTICLE
FEDERAL POWER AND FEDERAL DUTY:
RECONCILING SECTIONS 91(24) AND 35(1)
OF THE CANADIAN CONSTITUTION
By Brian Bird*
CITED: (2011) 16 Appeal 3-14
I. INTRODUCTION
From to , the relationship between the Crown and the Aboriginal peoples of
Canada unfolded primarily through section () of the Constitution Act, , which
provides Parliament with exclusive legislative authority over “Indians, and lands reserved
for the Indians.” Indeed, s. () was the only reference to Aboriginal peoples in the Cana-
dian Constitution until s. () of the Constitution Act, came into force, recognizing and
arming the aboriginal and treaty rights of Aboriginal peoples in Canada. In the words of
Charlotte Bell, s. () “was profoundly important in strengthening and protecting the
rights of Aboriginal peoples in Canada and demanded a new model for the relationship be-
tween governments and Aboriginal peoples.”
Since , a question has arisen as to whether s. () superseded s. () in terms of “me-
diating the relationship of Aboriginal peoples with the Crown — including rights protec-
tion — or whether section () of the Constitution Act, remains relevant in this
relationship.”is paper proposes that s. () has not superseded s. () in the context
of Crown-Aboriginal relations in Canada. In R. v. Sparrow, the Supreme Court of Canada
held that the two provisions are to be read together; “federal power must be reconciled
with federal duty”. is statement by the Court reveals that s. () is by no means irrel-
evant in the context of Crown-Aboriginal relations aer . Indeed, this paper argues
that the coexistence of s. () and s. () translates into an obligation upon the federal
APPEAL VOLUME 16 w3
* The author would like to thank Professor Hamar Foster, Q.C., for his support and encouragement in relation to
the first version of this article. The article was originally submitted as a term paper in the “Indigenous Lands,
Rights and Governance” course at the University of Victoria Faculty of Law.
1. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24), reprinted in RSC 1985, App II, No 5.
2. Charlotte A Bell, “Beyond Space and Time — A Purposive Examination of Section 91(24) of the Constitution
Act, 1867” in Frederica Wilson & Melanie Mallet, eds, Métis-Crown Relations: Rights, Identity, Jurisdiction,
and Governance (Toronto: Irwin law, 2008) 95 at 96.
3. Ibid.
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