Section Thirty-five of the Constitution Act, 1982
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Section thirty-five of the Constitution Act, 1982 provides constitutionally protected rights to the Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. It creates a framework governing the relationship between the crown and the aboriginal peoples through which rights claims to traditional aboriginal entitlements can be resolved. There is no closed list of protected rights, however, section 35 has been used to protect traditional fishing and logging rights, as well as, right to land and right to enforcement of treaties. There remains a major debate over whether the right to aboriginal self-government is included within section 35. Thus far the Supreme Court of Canada has made no ruling on the matter.
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The provision provides that:- 35. (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 of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Aboriginal rights
Aboriginal rights protect the activities, practice, and traditions of the aboriginal peoples in Canada that are integral to the distinctive culture of the aboriginal peoples.The word "existing" in section 35(1) has created the need for the Supreme Court to define what Aboriginal rights "exist". The Supreme Court has ruled in R. v. Sparrow that, before 1982, Aboriginal rights existed by virtue of the common law. Common law could be changed by legislation. Therefore, before 1982, the federal Parliament could extinguish Aboriginal rights, whereas now it can no longer extinguish any rights that still existed in 1982.
Not a Charter right
The section in the Charter that most directly relates to Aboriginals is section 25. It merely states that Charter rights do not diminish Aboriginal rights; it is therefore not as important as section 35.Peter W. Hogg, Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 631. The Charter forms Part I of the Constitution Act, 1982 while section 35 is placed in Part II. This placement in the Constitution is considered significant. Professor Kent McNeil has written it could be seen as meaning section 35 allows for Aboriginal self-government, while the Charter is concerned with more individual rights.Kent McNeil, "Aboriginal Governments and the Canadian Charter of Rights and Freedoms," (Canada, Royal Commission on Aboriginal Peoples, 1996), p. 67. Professor Peter Hogg has argued there are negative and positive effects of excluding section 35 from the Charter. Section 35 cannot be limited by section 1 or the notwithstanding clause. However, section 24 of the Charter, which allows remedies for rights violations, is not available to section 35. Moreover, in R. v. Sparrow the Court developed a test to limit section 35 that Hogg has compared to the section 1 Oakes test.Hogg, 621.Despite this, professors F.L. Morton and Rainer Knopff, in their criticisms of Charter case law and growing judicial discretion, treat section 35 as if it were part of the Charter. They write that "Section 35 is technically 'outside' of the Charter, but as a declaration of the special rights of Canada's most salient racial minority- rights that are enforceable in the courts- it has become an important part of the Charter revolution."F.L. Morton and Rainer Knopff, The Charter Revolution & the Court Party (Toronto: Broadview Press, 2000), page 42.
Footnotes
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