Federal Power and Federal Duty: Reconciling Sections 91(24) and 35(1) of the Canadian Constitution

AuthorBrian Bird
Pages3-14
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
arming 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Since , a question has arisen as to whether s. () superseded s. () in terms of “me-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relationship.”is paper proposes that s. () has not superseded s. () in the context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 aer . 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.
4. R v Sparrow, [1990] 1 SCR 1075, 70 DLR (4th) 385, [1990] SCJ No 49 at para 62 (QL) [Sparrow].

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