Developed by Anna Hunter. Revised by Nicole Wegner, Department of Political Studies, University of Saskatchewan.
In 1982, the government of Canada patriated and amended its constitution to include the Charter of Rights and Freedoms, a new amending formula, and the constitutional recognition and affirmation of Aboriginal and treaty rights. The constitutional recognition of Aboriginal and treaty rights marked a dramatic shift in political and legal relations between Aboriginal and non-Aboriginal peoples. This module explores the origins and meaning of section 35, and how the courts have focused on the theme of reconciliation in order to balance the competing interests at stake in this highly controversial area of law and politics.
Self Test and Answers
Quiz yourself by writing down responses to each of these questions below. When finished, click each question to reveal the suggested answer. Doing the Self-Test in this way will help you prepare for the Midterms and Final Exam.
Custom: A traditional Aboriginal practice. For example, First Nations peoples sometimes marry or adopt children according to custom, rather than under Canadian family law.
Fiduciary obligation (Aboriginal specific): Requires that the exercise of Crown authority and discretion must be undertaken in a manner consistent with those equitable principles which require a fiduciary to act with “the utmost of loyalty to its principal” and in the “best interest” of the principal or beneficiary.
Prima Facie: In legal understanding, this means a fact that is assumed to be true until disproven.
R. v. Guerin: A Supreme Court of Canada decision in 1984 that stated the government has a fiduciary duty towards Aboriginal persons in Canada and determined that Aboriginal title was a sui generis right.
Reconciliation: A principle based on restoring and renewing friendly and respectful relations between Aboriginal communities and the rest of the Canadian socio-political community.
Section 35: Found in Part II of the Canadian Constitution Act (1982), this section provides recognition and protection of Aboriginal and treaty rights to Aboriginal persons in Canada.
Sui generis: A Latin phrase meaning “of its own kind”. A sui generis legal system or analysis, for example, is a system specifically designed to address the needs and concerns of a particular issue. Aboriginal and treaty rights are considered to be sui generis in law.
Borrows, John, and Leonard I. Rotman. "The sui generis nature of aboriginal rights: Does it make a difference." Alberta Law Review. 36 (1997): 9.
Green, Joyce. “Decolonization and Recolonization in Canada.” In Changing Canada: Political Economy as Transformation, edited by Wallace Clement & Leah Vosko, 51-78. Montreal: McGill University Press, 2003.
Hogg, Peter W. Constitutional Law of Canada. Thomson Carswell, 1996.
Hunter, Anna. “The Politics of Self-Government.” In Canadian Politics, edited by Joan Grace and Byron Sheldrick. Toronto: Pearson Publishing, 2006.
Issac, Thomas. Aboriginal Law: Cases, Materials and Commentary. Saskatoon: Purich Publishing, 1995.
Smith, Mel. Some Perspectives on the Origin and Meaning of Section 35 of the Constitution Act, 1982. Vancouver: Fraser Institute, 2000.
R. v. Sparrow available at: http://www.canlii.org/en/ca/scc/doc/1990/1990canlii104/1990canlii104.html
R. v. Van der Peet available at: http://www.canlii.org/en/ca/scc/doc/1996/1996canlii216/1996canlii216.html
R. v. Gladstone available at: http://www.canlii.org/en/ca/scc/doc/1996/1996canlii160/1996canlii160.html