Section 35 of the Constitution Act, 1982 facts for kids

Section 35 of Canada's Constitution Act, 1982 is a very important part of the country's main law. It helps protect the special rights of Indigenous peoples, including their traditional ways of life and agreements called treaties.

Even though Section 35 is in the Constitution, it's not part of the Canadian Charter of Rights and Freedoms. This section doesn't list every single Indigenous right. But it has been used to protect things like fishing, hunting, logging, and land rights (known as Aboriginal title).

There's still discussion about whether Section 35 includes the right for Indigenous communities to govern themselves. As of 2006, Canada's highest court, the Supreme Court, had not made a final decision on this. However, since 1995, the Government of Canada has had a policy that recognizes the right to self-government under Section 35.

What Section 35 Says

Here is the exact wording of Section 35:

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.

(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.

This means that the rights Indigenous peoples already had are officially recognized and protected. It also clearly states that "Indigenous peoples of Canada" includes First Nations (often called Indian), Inuit, and Métis peoples.

Understanding Indigenous Rights

When Section 35 was added to the Constitution in 1982, Delbert Riley, a leader of the Assembly of First Nations, said that "Aboriginal Rights are what First Nations define them as." He meant these rights are what Indigenous peoples had before Europeans arrived and they still have them today.

The word "existing" in Section 35(1) was important. The Supreme Court of Canada had to decide what rights "existed" in 1982. In a case called R. v. Sparrow, the Court said that before 1982, Indigenous rights existed under common law (traditional English law).

Before 1982, the Canadian government could take away these rights through new laws. But after 1982, the government can no longer easily remove any rights that still existed then. To take away a right, the government would have to show a "clear and plain intention" to do so.

In the Sparrow case, the Court also said that "recognized and affirmed" means the government has a special duty to Indigenous peoples. This duty means the government must be careful when making decisions that might affect Indigenous rights.

Later, in a case called R. v. Van der Peet, the Court explained more about what counts as an Indigenous right. It said that for something to be an Indigenous right, it must have been a very important part of the unique culture before Europeans came to Canada.

The Honour of the Crown

The "honour of the Crown" is a key idea in the relationship between the Canadian government and Indigenous peoples. It means that the government must always act with honour and respect when dealing with Indigenous communities.

This principle means the government has a duty to talk with Indigenous peoples about any activities that might affect their rights. This "duty to consult" was first explained in cases like Haida Nation v. British Columbia (Minister of Forests).

The government must consult when it knows that its actions might negatively affect existing Indigenous rights or land claims. How much consultation is needed depends on how strong the Indigenous right is and how serious the government's actions might be.

Section 35 and the Charter of Rights

Section 35 is different from the Canadian Charter of Rights and Freedoms. The Charter is about individual rights for all Canadians. Section 35, however, is about the special collective rights of Indigenous peoples.

Section 25 of the Charter says that the rights listed in the Charter cannot take away from Indigenous rights. This shows that Section 35 is very important on its own.

Because Section 35 is outside the Charter, it has some special features. For example, the government cannot use Section 1 (which allows for reasonable limits on rights) or the notwithstanding clause (which allows governments to override some Charter rights) to limit Section 35 rights.

However, Section 24 of the Charter, which helps people get solutions when their rights are violated, does not directly apply to Section 35. Even so, the Supreme Court has developed its own ways to decide if limits on Section 35 rights are fair.

Some experts, like Ted Morton and Rainer Knopff, see Section 35 as part of a bigger change in how courts protect rights in Canada. They believe that even though it's "outside" the Charter, Section 35 is a very important declaration of special rights for Indigenous peoples that courts can enforce.

See also

• Amendments to the Constitution of Canada
• Canadian Aboriginal law
• Canadian Charter of Rights and Freedoms
• Indian Act
• Indian Health Transfer Policy (Canada)
• Numbered Treaties
• The Canadian Crown and Aboriginal peoples
• Unsuccessful attempts to amend the Canadian Constitution