Indigenous Rights

AuthorRobert J. Sharpe; Kent Roach
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 r ecognized and armed .
(2) In this Act, “aboriginal p eoples of Canada”i ncludes the
Indian, Inuit and Méti s peoples of Canada.
(3) For greater certai nty, in subsection(1)“treaty rights”includes
rights th at now exist by way of land claims ag reements or may be so
(4) Notwithsta nding any other provision of this Act , the aborig-
inal and tre aty rights referred to in subs ection(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 r ights, including title, result from the existence of Indigen-
ous societie s3 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].
constitutional systems before any Europeans arrived in what is now
Canada.4 Section 35 rights were also cre ated 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
Canad a’s Indigenous people.5 The Truth and Reconciliation Commi s-
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 surv ival of Indigenous languages, all of which are
at some degree of risk. It also noted that Indigenous languages might
in some cases be recogn ized 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 sh all 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 ancest ry 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, The Oxford 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 Rights 449
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 right s,
including those acquired from land claims agreements are not part
of the Canadian Charter 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 overr ide.
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 r ights. As will be seen, however, section 35 rights can
be enforced by declarations, injunctions, and damages, and the courts
will also awa rd 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 t he 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
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 limit s 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 interest s
and rights. Unlike section 1, the government has special obligations
towards Indigenous communities. These include the duty to consult
and f‌iduciar y 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.

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