Module 6: Section 35 (Constitution Act)

Since the signing of the British North America Act, 1867, Canadian political history has been marked by a long and contentious debate over constitutional patriation. The constitutional debate ended with the 1982 passage of the Canada Act by the British Parliament. The patriation of the Constitution was primarily a symbolic act in that it did not represent any changes in federal-provincial jurisdictions or the structure of the central government. However, the inclusion of an entrenched Charter of Rights and Freedoms, an amending formula, and the constitutional protection of Aboriginal and treaty rights have each significantly impacted the Canadian political landscape.

Section 35 represents the culmination of a long and difficult struggle for constitutional recognition of Indigenous rights, and marks the beginning of a new stage in Aboriginal-state relations. Section 35 provides a clear break in federal “Indian policy” from previous assimilationist policies to coexistence or partnership. Through section 35, governments positively and proactively acknowledge the continuing existence of Indigenous and treaty rights, alongside the legal mandate and duty to duly recognize and affirm these rights.

In addition, the Constitution Act, 1982 gave constitutional recognition to a new category, that of “Aboriginal peoples.” Aboriginal peoples have used their newfound constitutional status to legitimate and further demands for representation at constitutional and governance negotiations at the executive federalist level involving Canada’s first ministers. They have also used their newfound status to push for the constitutional recognition of the inherent right of self-government.

In 1982, Aboriginal and treaty rights were recognized and affirmed through section 35 of the Canadian Constitution Act, 1982, which reads:

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 Métis peoples of Canada.

It is important to note that section 35 is not included in the Charter of Rights and Freedoms. The Charter forms Part I of the Constitution Act, 1982 while section 35 is placed in Part II. This placement of this section in the Act is significant because it means that section 35 cannot be limited by section 1 or section 33 (the notwithstanding clause). However, at the same time, it means that section 24 of the Charter, which allows remedies for rights violations, is not available to section 35.

This constitutional recognition of Aboriginal and treaty rights marked a dramatic shift in political and legal relations between Aboriginal and non-Aboriginal peoples. First, and most importantly, section 35 provides a strong legal basis for the protection or assertion of Aboriginal or treaty rights in the face of legislative interference of the federal and provincial governments. As a result, government and corporate decision-makers can be legally forced to formally address Aboriginal grievances dealing with a broad range of issues, such as land title, hunting and fishing rights, and political representation. Joyce Green explains the overall societal impact: “No longer can mainstream governments, citizens and the media refuse to take indigenous claims seriously” (2003, 55).

Section 35 is housed within Part II of the constitution. This means that section 35 is exempt from the «notwithstanding clause» that applies to the Charter of rights and freedoms.

“Aboriginal rights” are rights held by Indigenous peoples as a result of their prior use and occupancy of North America before the arrival of Europeans. Aboriginal rights exist in law in order to protect the activities, practice, and traditions that are integral to the distinctive culture of Indigenous peoples. Aboriginal rights vary from group to group depending on their customs, practices, traditions, treaties and other agreements that have formed part of their distinctive cultures.

Interestingly, Aboriginal rights received constitutional protection without any definitive or conclusive specification. It is generally agreed, however, that Aboriginal rights include rights based on the prior use and occupancy of the land, such as rights to hunt and fish, harvest food, and have access to the traditional territories to conduct these activities. Attempts to extend constitutional protection to Aboriginal peoples regarding rights of self-government have not yet reached a workable consensus in the courts or the legislatures.

The following section provides an overview of how the courts have used these principles in a number of important court cases to establish the legal test for proving the existence of Aboriginal rights and for justifying government infringements upon Aboriginal rights claims.

The Supreme Court of Canada has responded to s.35 claims with a well-developed legal analysis fundamentally based upon an overarching theme of reconciliation and balance. In R. v. Van der Peet (1996), the Supreme Court stated that: “Section 35(1) provides the constitutional framework through which the fact that Aboriginals lived on the land in distinctive societies, with their own practices, customs and traditions, is acknowledged and reconciled with the sovereignty of the Crown.” The Court further explained that the definition of an Aboriginal right must take into account the Aboriginal perspective, yet do so in terms that are recognizable to the non-aboriginal legal system.

The courts meet this challenge of reconciliation and balance through adherence to the following four principles of interpretation:

1. Aboriginal and treaty rights are characterized as being sui generis in nature, which allows the court to recognize the coexistence of indigenous and English laws and to protect those rights which flowed from pre-existing indigenous legal regimes.
2. Aboriginal and treaty rights are fiduciary in nature. The fiduciary obligation is the highest duty known in law highlighted by good faith, loyalty and trust. The relatively new doctrine of an Indigenous-specific, fiduciary obligation has fostered a legally enforceable duty of Parliament to act in the best interests of Aboriginal peoples in order to uphold the honour of the Crown.
3. Section 35 does not grant Aboriginal rights in itself. Aboriginal rights existed before the 1982 constitution.
4. In a similar manner to other Canadian political and civil rights, Aboriginal and treaty rights are not absolute. The federal and provincial government may justify infringement of Aboriginal and treaty rights in certain circumstances by meeting the standards established by the Supreme Court of Canada.

Based on these interpretative principles, it should be clear that section 35 provides general protection to Aboriginal rights but does not define or set out particular Aboriginal rights.

There are a number of important court decisions that have helped clarify the nature of Aboriginal rights and redefined the legal relationship between the Canadian governments and Aboriginal peoples. The courts have determined that the constitutional protection of Aboriginal and treaty rights provided by section 35 means that governmental action can only infringe or extinguish Aboriginal and treaty rights according to strict legal criteria. The tests for justifying an infringement are set out in the case law on section 35 that begins with R. v. Sparrow, which is the first Supreme Court of Canada case to deal with the application of section 35.

R. v. Sparrow (1990) 1 S.C.R. 1075

Figure 6-1: Vancouver Sun newspaper clipping on the Sparrow case. Source: http://indigenousfoundations.arts.ubc.ca/wp-content/blogs.dir/56/files/sites/8/2016/01/case_to_test_vansun_nov_4_01.jpg Permission: This material has been reproduced in accordance with the University of Saskatchewan interpretation of Sec.30.04 of the Copyright Act.

The facts of the Sparrow case concerned Ronald Sparrow, a member of the Musqueam Band, who had been charged with an offence pertaining to fishing with a longer net than permitted under the federal Fisheries Act. In court, Sparrow admitted to all of the facts in the charge, but justified it by arguing that he was exercising his Aboriginal right to fish under section 35. He argued that it was his Aboriginal right to fish for salmon in the Fraser River “where his ancestors have fished from time immemorial.” The issue before the Supreme Court of Canada was whether the restriction on fishing net length violated section 35(1) of the Constitution Act, 1982. In a unanimous decision, the Supreme Court of Canada concluded that Sparrow was in fact exercising an existing Aboriginal right that was protected by section 35.

In its decision, the Court laid down the principles that govern application and interpretation of section 35. The Court reaffirmed and relied extensively on the doctrine of the fiduciary duty that had been recognized in an earlier decision (R. v. Guerin), making it clear that in all dealing with Aboriginal peoples, the Government has the responsibility to act in a fiduciary capacity. In the end, the Court ruled that although Canada enjoys sovereignty over its Indigenous population, Aboriginal rights that exist at common law are now enshrined in the Constitution by virtue of section 35(1), and laws that interfere with the exercise of such rights must conform to constitutional standards of justification.

The Court held that an analysis of a claim under s.35(1) has four steps:

1. The court must determine whether an applicant has demonstrated that he or she was acting pursuant to an aboriginal right;
2. The court must determine whether the right was extinguished prior to the enactment of s.35(1) of the Constitution Act, 1982;
3. The court must determine if the right has been infringed;
4. The court must determine whether that infringement was justified.

Test for infringement of section 35:

1. Not all interference is infringement. To test infringement, there are three questions:

• a. Is the limitation unreasonable?
• b. Does the regulation impose undue hardship?
• c. Does the regulation deny to the holders of the right their preferred means of exercising that right?

The onus is on the Aboriginal claimant to establish prima facie violation of right.

2. Justification of the infringement of an Aboriginal right will be allowed if the Court determines that the particular infringement meets the following criteria:

• a. valid legislative objective (“public interest” too vague, but conservation, management, development, etc. would be acceptable justifications);
• b. interference occurs in a way that preserves the honour of Crown (i.e., no appearance of sharp dealings, government must infringe as little as possible, compensation must be considered, and consideration whether Aboriginal group was consulted).

Results of R. v. Sparrow

The unanimous decision was delivered by Chief Justice Dickson and Justice la Forest on May 31, 1990. McIntyre, Lamer, Wilson, L’Heareaux-Dube and Sopinka also heard the case. Despite the apparent victory for Aboriginal people, the practical result of the case was to order that a new trial be held.

Section 35 provides a solid constitutional base on which subsequent negotiations regarding Aboriginal rights can take place. However, there is room for broad and liberal interpretation of s.35. It is important to consider other circumstances, including the fiduciary relationship with the Crown. The Crown’s relationship with Aboriginal people is integral to definition of section 35 rights. The government has a responsibility to act in a fiduciary capacity with respect to aboriginal peoples. A fiduciary relationship between the government and aboriginals should be based on trust, rather than adversarial relations. After Sparrow, it was clear the Crown’s fiduciary obligations to Aboriginal peoples extended beyond the surrender of Aboriginal lands. The Sparrow decision demonstrated a need for improved Crown-native relations more generally, as the Crown’s fiduciary obligations were constitutionally entrenched in s.35(1) of the Constitution Act, 1982.

R. v. Van der Peet (1996) 2 S.C.R. 507

In this Supreme Court of Canada case, Dorothy Van der Peet, the appellant, was charged with selling fish caught under an Indian Food Fishing License contrary to the British Columbia Fishery (General) Regulations. The charges arose out of the sale by the appellant of ten salmon on September 11, 1987. The salmon had been caught by Steven and Charles Jimmy, under the authority of an Indian food fish license. Charles Jimmy is the common-law spouse of the appellant. The appellant, a member of the Sto:lo Nation did not contest the facts, instead defending the charges against her on the basis that in selling the fish she was exercising an existing Aboriginal right to sell fish.

The issue at the Supreme Court involved the determination of the scope of rights protected under s.35. Do the regulations infringe the appellant’s existing aboriginal right to sell fish? Ultimately, the Court found that the appellant did not demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Sto:lo culture that existed prior to European contact. The court characterized Aboriginal rights as arising only where an activity was an element of a practice, tradition, or custom integral to the distinctive culture of the aboriginal group claiming the right and traceable to pre-contact practices. The Court also found that: Aboriginal rights are independent and pre-existing, arising from fact that Aboriginal people are aboriginal (Inherent in very meaning of aboriginality); arise because Aboriginal people were already here when settlers came (Must be aimed at recognizing the interests of Aboriginal people and the Crown); rights must be directed at crucial elements of pre-existing societies; custom must be integral to distinctive culture. The Court listed ten factors in determining “integral and distinctive”:

1. Custom must represent perspective of Aboriginal people themselves.
2. Court must identify precisely the nature of the right being claimed.
3. Right must be of central significance to Aboriginal society.
4. Custom must show continuity with practices prior to contact.
5. Court must be conscious of special nature of claims when considering evidence.
6. Court must adjudicate on a specific, not general, basis.
7. Practice must be of independent significance to the group.
8. Practice needn’t be distinct to other societies.
9. European-culture influenced practices do not create rights.
10. Court must take account of other aspects of the relationship.

R. v. Van der Peet Results

In the decision, the Supreme Court explains that section 35(1) acknowledges the fact that Aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions, and provides the constitutional framework to reconcile this with the sovereignty of the Crown. Additionally, the Court attempts to avoid the dilemma of a frozen rights doctrine by allowing the group to advance and modernize the performance of particular Aboriginal rights as long as the particular right predates colonial contact and is distinctly integral to the particular aboriginal society.

The following test should be used to identify whether an applicant has established an aboriginal right protected by s.35(1): in order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right. In assessing a claim for the existence of an Aboriginal right, a court must take into account the perspective of the Aboriginal people claiming the right. It must also be recognized, however, that that perspective must be framed in terms recognizable to the Canadian legal and constitutional structure. As has already been noted, one of the fundamental purposes of s.35(1) is the reconciliation of the pre-existence of distinctive aboriginal societies with the assertion of Crown sovereignty. Courts adjudicating aboriginal rights claims must, therefore, be sensitive to the Aboriginal perspective, but they must also be aware that Aboriginal rights exist within the general legal system of Canada.

R. v. Gladstone (1996) 2 S.C.R. 723

The facts of this case involved Donald and William Gladstone, members of the Heiltsuk Indian Band. They possessed Indian food fish licenses, which gave them the opportunity to harvest limited amounts of herring spawn on kelp. They were charged under the Fisheries Act for selling it. The charges arose out of events taking place in April of 1988. The appellants did not dispute the essential facts of the case. The essence of their defense was that, in these circumstances, the regulations violated the appellants’ Aboriginal rights as recognized and affirmed by s.35(1) of the Constitution Act, 1982.

The issue at the Supreme Court of Canada focused on the justificatory standards for the infringement of an Aboriginal right. The Supreme Court determined that after conservation goals have been met, the government is not required to give exclusive priority to Aboriginal fishers. Rather it requires that the government demonstrate that it has taken account of the existence of Aboriginal rights and allocated the resources in a manner respectful of the fact that Aboriginal rights-holders should not be permitted exclusive commercial exploitation of a resource.

Aboriginal rights are a necessary part of the relationship of Aboriginal societies with the broader political community. Placing limits on those rights is viewed as a necessary part of that relationship as it affects the political community as a whole. As seen in R. v. Gladstone, objectives that can limit an Aboriginal right include pursuit of economic and regional fairness and recognition of the historical reliance on fishery by non-Aboriginal groups.

The priority of Aboriginal rights as enshrined in s.35 means that these rights must remain somewhat vague pending consideration of the government’s actions in specific cases. Sparrow‘s justification test cannot be assessed against a precise standard but must rather be assessed in each case to determine whether the government has acted in a fashion which reflects that it has truly taken into account the existence of aboriginal rights. The principle of Aboriginal rights priority determined in the Sparrow case (where the Aboriginal right to be given priority is one without internal limitation) means that courts should assess the government’s actions not to see whether the government has given exclusivity to that right but rather to determine whether the government has taken into account the existence and importance of such rights. As demonstrated in the Gladstone case, Aboriginal rights might not always permit overturning of local or regional regulations, but these court cases have ensured that Aboriginal rights must always be considered due to fiduciary obligations of the government to ensure that the best interests of Aboriginal persons are upheld.

While Aboriginal rights under s.35 are not well defined, this Constitutional recognition means that Indigenous persons and groups have the option of legal proceedings to influence change when they believe their inherent rights have been violated. Many legal challenges have been about hunting or fishing rights, however the question of land rights has also emerged in recent discourse.

Section 35 of the Constitution Act protects Aboriginal and treaty rights of indigenous groups. It sets out a framework upon which Aboriginal peoples can ensure that federal historical obligations will be upheld.

In addition to politically recognizing and affirming Aboriginal rights under the patriated Constitution, section 35 also provides a legal framework to challenge any government practices, regulations, or decisions that might infringe upon their rights.

There have been several landmark court cases that help to guide interpretation of section 35. Under R. v. Sparrow, it was determined that Aboriginal rights may have priority and may prevail over regional policies or practices that infringe upon these protected rights. Under R. v. Van der Peet, guidelines on the scope of rights (whether violations were to customs of integral and distinctive quality to Aboriginal customs) were established. Under R. v. Gladstone, it was demonstrated that a balance between Aboriginal and non-Aboriginal interests was essential for proper reconciliation.