Section 35 of the Constitution Act, 1982
Based on Wikipedia: Section 35 of the Constitution Act, 1982
The Constitutional Shield That Almost Wasn't
In the spring of 1982, as Queen Elizabeth II signed the Constitution Act that would finally bring Canada's founding document home from Britain, a single section buried in Part II would become one of the most consequential—and contested—pieces of Canadian law. Section 35 wasn't glamorous. It wasn't part of the celebrated Charter of Rights and Freedoms that politicians loved to trumpet. It sat just outside, in its own quiet corner of the constitution.
That placement wasn't an accident. And it would matter enormously.
Section 35 did something no Canadian law had ever done before: it recognized and affirmed the existing aboriginal and treaty rights of Indigenous peoples. Not created them—recognized them. The distinction is crucial. The section acknowledged that these rights already existed, had always existed, and would now receive the highest protection Canadian law could offer.
What the Section Actually Says
The text itself is remarkably brief for something so significant. The core provision reads simply: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."
That's it. Thirty-one words that would spawn thousands of pages of legal interpretation, dozens of Supreme Court decisions, and ongoing debates that continue to this day.
The section goes on to define who counts as "aboriginal peoples of Canada"—a term that encompasses three distinct groups: First Nations (historically called "Indians" in Canadian law), Inuit, and Métis. Each group has its own history, its own relationship with the Crown, and its own set of rights that section 35 protects.
But here's what the section conspicuously does not do: it never defines what those protected rights actually are. No list. No enumeration. Just the promise that whatever rights exist will be recognized and affirmed.
The Power of the Word "Existing"
When Delbert Riley, then the National Leader of the National Indian Brotherhood—the organization that would later become the Assembly of First Nations—commented on the new constitutional provision in 1982, he articulated a vision of aboriginal rights as timeless and immutable. "Aboriginal Rights are what First Nations define them as," he declared. "Their rights are what they were before European contact, and remain the same after European contact."
The courts would develop a more complicated picture.
That single word "existing" in section 35 became the hinge on which countless legal battles would turn. What does it mean for a right to "exist"? Did it exist before contact with Europeans? Before Confederation? Before 1982? The Supreme Court of Canada, in case after case, would be called upon to answer these questions.
The landmark case came in 1990: R. v. Sparrow. The facts were straightforward enough. A member of the Musqueam Nation named Ronald Sparrow had been fishing in British Columbia with a net that was longer than his band's food fishing licence permitted. He was charged under the federal Fisheries Act. His defence? The regulations violated his constitutionally protected aboriginal right to fish.
The Supreme Court used the case to establish fundamental principles about how section 35 works. Before 1982, the Court explained, aboriginal rights existed under common law—the body of judge-made law that Canada inherited from England. But common law can be changed by legislation. Parliament could, with clear enough language, extinguish aboriginal rights entirely.
Section 35 changed that equation. After 1982, any aboriginal right that still existed could no longer be extinguished by ordinary legislation. The constitution had frozen those rights in place, creating a floor below which Parliament could not go.
But What Rights, Exactly?
The Sparrow case didn't have to grapple with the thornier question of what actually qualifies as an aboriginal right in the first place. Both the government and the Musqueam agreed that fishing for food was such a right. Nobody disputed it.
That question came to a head in 1996 with R. v. Van der Peet. Dorothy Van der Peet, a member of the Stó:lō Nation, had been caught selling salmon she had caught under the authority of an Indian food fish licence. She argued that selling fish was an aboriginal right protected by section 35.
The Supreme Court, led by Chief Justice Antonio Lamer, established what would become known as the Van der Peet test. To qualify as an aboriginal right, a practice must have been "integral to the distinctive culture" of the aboriginal group before contact with Europeans. Not just something the group did, but something central to who they were as a people.
This test has been both praised and criticized. Supporters argue it provides a principled way to distinguish genuine aboriginal rights from practices that developed only after European arrival. Critics contend it freezes Indigenous cultures in a pre-contact moment, denying them the right to evolve and adapt that every other society takes for granted.
The Rights We Know About
Through decades of litigation, courts have identified several categories of rights that section 35 protects. Fishing rights, as in Sparrow, were among the first recognized. Hunting rights followed. Logging rights in certain circumstances. The right to land itself—what lawyers call "aboriginal title"—represents perhaps the most significant category, giving Indigenous peoples ownership-like interests in territories their ancestors occupied.
Treaty rights occupy their own special place. When the Crown signed treaties with Indigenous nations—from the early peace and friendship treaties in the Maritimes to the numbered treaties that opened the Prairies—those agreements created rights that section 35 now protects. If a treaty promised hunting grounds in perpetuity, that promise now has constitutional force.
Then there's the great unresolved question: self-government. Does section 35 protect an inherent right of Indigenous peoples to govern themselves? The Supreme Court has never definitively answered. But the federal government, since 1995, has operated on the assumption that it does. Ottawa's official policy recognizes what it calls "the inherent right of self-government" as an existing aboriginal right protected by the constitution.
The Honour of the Crown
One of the most distinctive concepts to emerge from section 35 jurisprudence is the idea of the "honour of the Crown." Whenever the government deals with Indigenous peoples, this principle holds, its honour is at stake. This isn't mere rhetoric. It creates concrete legal obligations.
Chief among these is the duty to consult. Before the government or industry can proceed with activities that might affect aboriginal rights or title, they must consult with affected Indigenous groups. Not just notify them. Not just hear them out. Consult meaningfully, with a genuine willingness to accommodate their concerns.
The Supreme Court elaborated this duty in two companion cases from 2004: Haida Nation v. British Columbia and Taku River Tlingit First Nation v. British Columbia. The duty arises whenever the Crown has knowledge—even constructive knowledge, meaning knowledge it should have—of the potential existence of aboriginal rights or title, and contemplates conduct that might adversely affect them.
How extensive must the consultation be? That depends on two factors: how strong the aboriginal claim appears to be, and how serious the potential impact of the proposed activity. A logging licence in an area where a First Nation has an established claim to title might require deep consultation and significant accommodation. A minor permit in an area with only tenuous connections to Indigenous interests might require much less.
Inside the Constitution, Outside the Charter
Remember that quiet corner of the constitution where section 35 sits? Its placement outside the Charter of Rights and Freedoms has profound implications that continue to generate scholarly debate.
Section 25 of the Charter explicitly provides that Charter rights shall not be construed to abrogate or derogate from aboriginal rights. In plain language: the Charter can't be used to diminish Indigenous rights. But that's largely a defensive provision. It protects aboriginal rights from Charter-based attacks; it doesn't itself create or enhance those rights.
Professor Kent McNeil of Osgoode Hall Law School has argued that the structural separation of section 35 from the Charter actually supports a robust conception of aboriginal self-government. The Charter, he suggests, is primarily concerned with individual rights—the rights of persons against the state. Section 35, standing apart, can more naturally accommodate collective rights, including the right of Indigenous peoples to govern themselves according to their own laws and traditions.
The constitutional scholar Peter Hogg—whose treatise on Canadian constitutional law sits on practically every Canadian lawyer's shelf—has identified both advantages and disadvantages to section 35's placement. On the plus side: section 35 cannot be limited by section 1 of the Charter, the "reasonable limits" clause that allows governments to justify restrictions on Charter rights. Nor can section 35 rights be overridden by the notwithstanding clause, that controversial provision that lets legislatures declare that a law will operate "notwithstanding" certain Charter provisions.
On the minus side: section 24 of the Charter, which provides remedies for Charter violations, doesn't apply to section 35. If your Charter rights are violated, you can go to court and get a remedy under section 24. If your section 35 rights are violated, you need to find remedies elsewhere in the legal system.
Not Quite Absolute
One might assume that constitutional protection means absolute protection. It doesn't.
In Sparrow, the Supreme Court developed a test for when the government can justify infringing aboriginal rights. If legislation interferes with an aboriginal right, the government bears the burden of justifying that interference. It must show a valid legislative objective. It must demonstrate that the honour of the Crown has been upheld. It must prove that aboriginal interests have been given appropriate priority.
Hogg has noted the similarities between this justification test and the Oakes test used to evaluate limits on Charter rights under section 1. Both require the government to demonstrate that its interference with protected rights is justified in a free and democratic society. Both demand proportionality between the objective pursued and the means employed.
The effect is that aboriginal rights, like Charter rights, exist in a framework of potential justifiable limitation. The government can interfere with them—but only if it can meet a demanding burden of proof.
The Charter Revolution, or Something Else?
Political scientists Ted Morton and Rainer Knopff, in their influential critique of the expanding role of courts in Canadian democracy, treat section 35 as effectively part of what they call the "Charter revolution"—the dramatic expansion of judicial power that followed the Charter's adoption in 1982. Their reasoning is pragmatic rather than technical. Section 35 may sit outside the Charter structurally, but it functions similarly: it constitutionalizes rights that courts must interpret and enforce, it empowers judges to strike down legislation, and it shifts power from elected legislatures to appointed judges.
Whether you view this as revolution or evolution, progress or overreach, depends largely on your broader views about democracy, rights, and the proper role of courts. What's undeniable is that section 35 has fundamentally altered the relationship between Indigenous peoples and the Canadian state.
From Paper Rights to Real Power
The story of section 35 is, in many ways, the story of words on paper slowly acquiring force in the real world. In 1982, the section existed but had never been interpreted. Courts didn't know what "existing" meant. They didn't know what rights were protected. They didn't know how strong the protection was.
Case by case, the picture filled in. Sparrow established the framework. Van der Peet defined aboriginal rights. Delgamuukw elaborated aboriginal title. Haida Nation created the duty to consult. Each decision added another piece to the puzzle.
Today, no major resource project in Canada can proceed without meaningful consultation with affected Indigenous groups. Pipelines, mines, logging operations—all must navigate the duty to consult that flows from section 35. Some see this as appropriate recognition of Indigenous rights and the honour of the Crown. Others view it as an obstacle to economic development. Almost everyone agrees it represents a profound change from the way things were done before 1982.
And still the debates continue. Does section 35 protect self-government? How do Métis rights differ from First Nations rights? What happens when aboriginal rights conflict with environmental protection? These questions await future courts, future cases, future generations.
That short section, sitting quietly outside the Charter in its own corner of the constitution, continues to reshape Canada. The full implications of those thirty-one words—"The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed"—are still being discovered, almost half a century after they were written.