Indigenous Rights

• Author: Robert J. Sharpe; Kent Roach
• Pages: 447-490

447

CHAPTER 17

INDIGENOUS RIGHTS

Section 35 of the Constitution Act, 1982 provides:

(1) The existing aborig inal and treaty r ights of the aboriginal p eoples

of Canada are hereby recognized and armed.

(2) In this Act,“aboriginal peoples of Canada”includes the

Indian, Inuit and Méti s peoples of Canada.

(3) For greater certai nty, in subsection(1)“treaty rights”includes

rights that now exist by way of land claims ag reements or may be so

acquired.

(4) Notwithstanding any other provision of this Act, the aborig-

inal and treaty rights referred to in subsection(1) are guaranteed

equally to male a nd female per sons.

Section 35 did not create Aboriginal1 and t reaty rights: it recognized

pre-existing r ights. As d iscussed in Chapter 1, Canada has rejected the

colonial and racist idea articulated by the Judicial Committee of the

Privy Council t hat Aboriginal title was derived as opposed to being rec-

ognized by the Royal Proclamation of 1763.2 It is now recognized that

Aboriginal rights, including title, result from the existence of Indigen-

ous societies3 that had their own laws, governance, and unwritten

1 We use the word “Aboriginal” here to cor respond with the lan guage of s 35.

2 St Catharines Milling and Lumb er Co v The Queen, [1888] UKPC 70 [Milling and

Lumber]. See now Guerin v The Queen,[1984] 2 SCR 335 at 378-9 [Guerin].

3 R v Sparrow, [1990] 1 SCR 1075 at para 55 [Sparrow]; Delgamuukw v Briti sh Col-

umbia, [1997] 3 SCR 1010 at paras 145–48 [Delgamuukw].

THE CHARTER OF R IGHTS AND FREEDOMS448

constitutional systems before any Europeans arrived in what is now

Canada.4 Section 35 rights were also created by treaties that European

sovereigns — the Crown — signed with representatives of those Indigen-

ous nations. All of these t reaties are part of Canada’s Constitution. They,

like other section 35 rights, must be understood from both Indigenous

and non-Indigenous perspectives.

Aboriginal people are def‌ined u nder section 35(2) as including “the

Indian, Inuit and Métis peoples of Can ada.” Indigenous people are, how-

ever, much more diverse than this def‌inition sug gests. There are t welve

distinct lang uage groups and f‌ift y dierent linguistic groupings among

Canada’s Indigenous people.5 The Truth and Reconciliation Commis-

sion of Canada documented how residential schools punished Indigen-

ous children for speaking the languages they learned at home. It called

for the creation of an Indigenous languages act and a commissioner

to help ensure the survival of Indigenous languages, all of which are

at some degree of risk. It also noted that Indigenous languages might

in some cases be recognized as section 35 rights. This is supported by

section 22 of the Charter, which provides that the recognition of Eng-

lish and French languages in the Charter does not take away “from any

legal or customary right or privilege” that was acquired before or after

the coming into eect of the Charter.6 Moreover, section 25 provides

that the Charter shall not be construed to abrogate or derogate from

section35 rights.

The 2016 census reveal s that there are more than 1.5 million Indigen-

ous people in Canada. Just under a mill ion people identify w ith various

First Nations. More than half a million identify as Métis, a population

of mixed Indigenous and European ancestry that formed a common

culture and identity. The Métis played a special role in the creation of

Manitoba as a biling ual province, and commitments to Métis land r ights

4 Inuit constitution alism revolved around obligation s to humans in a harsh

climate; Métis constitutionali sm regulated, among other m atters, the bualo

hunt; the Haudenos aunee governed themselves a s a confederacy composed of

six Nations and we re governed by a Great Law that ta kes seven days to recite;

Mi’kmaq, Ani shinaabe, and Cree const itutionalism played a role in t he creation

of treaties w ith the Crown. See John Bor rows, “Indigenous Constitutiona lism”

in Peter Oliver, Patrick Mack lem & Nathalie Des Rosiers , eds, TheOxford Hand-

book of the Canadian Con stitution (New York: Oxford University Pr ess, 2017) 15.

5 Patrick Macklem et a l, Canadian Constitutional Law, 5th ed (Toronto: Emond

Montgomery, 2017) at 521. See als o Bradford Morse, “Aboriginal and Treaty

Rights in Ca nada” in Errol Mendes & Stéphane Be aulac, eds, Canadian Char ter

of Rights and Freedoms,5th ed (Ma rkham, ON: LexisNexis, 2013) 1241.

6 Truth and Reconciliation Com mission of Canada, Cana da’s Residential Schoo ls:

The Legacy, vol 5(Montrea l: McGill-Queen’s University Pre ss, 2015), ch 3.

Indigenous Rights449

were made under the Manitoba Act, 1870. Finally, almost 65,000 people

identify as Inuit. The Inuit, who themselves are a diverse population,

played a key role in the Nunavut Land Claim Agreement in 1993 that

resulted in the creation of Nunavut. This third northern territory rec-

ognizes two Inuit languages, Inuktitut and Inuinnaqtun, in addition to

English and French as ocial languages.

Section 35 rights — that is, existing Aboriginal and treaty rights,

including those acquired from land claims agreements — are not part

of the CanadianCharter of Rights and Freedoms. As such, they are not

subject to the reasonable limits cl ause of section 1. These right s are also

not subject to section 32, which limits the application of the Charter to

governments, nor are they subject to the section 33 legislative override.

Section 35 rights cannot be enforced through section 24(1) of the

Charter, which provides for “appropriate and just” remedies for viola-

tions of Charter rights. As will be seen, however, section 35 rights can

be enforced by declarations, injunctions, and damages, and the courts

will also award a variety of remedies if governments breach their duty

to consult Indigenous peoples when taking steps aecting their rights

or rights claims.

Section 35 rights can be enforced under section 52(1) of the Con-

stitution Act, 1982, which renders laws inconsistent with the Constitu-

tion (including section 35) of no force and eect to the extent of the

inconsistency. Judicial remedies play an important role in enforcing

section 35 rights, although in many ways consensual agreements are

preferable. This is especially s o with respect to complex issues involving

Indigenous self-determination and self-government, which is supported

by the 2007 United Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP).7

Despite not being included in the Charter, the courts have held that

section 35 rights are subject to justif‌ied limits in a process similar but

not identical to the reasonable limits of section 1 of the Charter. As

under section 1, there is a focus on proportionality and the need to

make reasonable accommodations between important social interests

and rights. Unlike section 1, the government has special obligations

towards Indigenous communities. These include the duty to consult

and f‌iduciary duties8 to exercise powers with loyalty and care towards

7 GA Res 61/295, UNGAOR, 61st Ses s, UN Doc A/RES /61/295 (13 September 2007).

8 Justic e McLachlin has expl ained the concept of f‌iduciary r elationship as follows:

“The vulnerable pa rty is in the power of the par ty possessing t he power or dis-

cretion, who is in t urn obligated to exercise t hat power or discretion solely for

the benef‌it of the v ulnerable party. . . . The person who ha s ceded power trusts

the person to whom power i s ceded to exercise that powe r with loyalty and care.