Revised and updated July 10, 2018.
Aboriginal Rights and Section 35
Section 35 of the Constitution Act, 1982 “recognizes and affirms” the existing Aboriginal and treaty rights of Aboriginal peoples, that is, Indian, Inuit and Métis peoples. Determining what those rights are has been the work of courts across Canada since 1982.
Before 1982, the Constitution did not protect Aboriginal and treaty rights. Aboriginal and treaty rights were only recognized in through decisions made by the courts. Section 35, which was added to the Constitution in 1982, is a tool that Indigenous groups can now use to enforce their rights in the courts when they are infringed by government.
It is important to emphasize that section 35 of the Constitution Act, 1982 only protects Aboriginal rights that existed at the time it came into effect. Hence the term, ‘existing’ Aboriginal and treaty rights. Prior to 1982, the federal government could extinguish an Aboriginal right through legislation or through signing treaties. If the right was extinguished prior to 1982, section 35 cannot revive the right. To recognize a right as being extinguished, the government must have used clear and plain language to do so. If a right was merely regulated but not removed entirely, then it was not extinguished. For example, in the case R v Sparrow (1990) the Supreme Court held that the Fisheries Act and its accompanying regulations, which required fishermen to have permits and limited the methods by which a fisherman could fish, among other things, did not extinguish the Aboriginal Right of the Musqueam band to fish.
Since 1982, the federal government can no longer extinguish Aboriginal rights.
Section 35 recognizes two types of rights: Aboriginal rights and treaty rights. Aboriginal rights are rights to engage in specific activities in certain places, like hunt or engage in a ceremony, or to occupy land. Treaty rights come from agreements between Indigenous groups and the Crown.
Enshrining existing Aboriginal and treaty rights in section 35 of the Constitution has not made them absolute. The Supreme Court established a test in the R v Sparrow (1990) case for determining when Aboriginal (or treaty) rights can be infringed by the government. Where the government has, or should have, knowledge of an existing or yet-to-be-proven Aboriginal or treaty right, the government has a duty to consult the Indigenous group whose rights may be impacted. If the government does not fulfil its duty to consult before it infringes an Aboriginal or treaty right, the court can order a variety of remedies such as reversing approval for a project until proper consultation has occurred, or ordering money be paid to the Indigenous group as compensation.
Aboriginal rights referred to in section 35 include Aboriginal title as well as rights to engage in particular activities. In order for an Aboriginal group to have the court recognize something as an Aboriginal right using section 35, the group must show that certain criteria, as defined by the courts, are met.
The Court has described Aboriginal title as a right to occupy and possess land. However, the Crown retains underlying title to the land and Aboriginal title land can only be sold to the Crown. According to the Royal Proclamation of 1763, these restrictions on title were created so that the Crown could act as a as an interlocutor between Indigenous groups and settlers and so that the Indigenous groups could not be exploited by settlers.
The definition of Aboriginal title has evolved since its recognition. In the case of Calder v British Columbia (1973), the Supreme Court described the nature of Aboriginal title as being based on the historic occupation and possession of the land by Indigenous people. After Aboriginal and treaty rights were enshrined in the Constitution, the Supreme Court further elaborated on the features of Aboriginal title in the case Delgamuukw v British Columbia (1997). Chief Justice Lamer, writing for the majority of the Justices, described Aboriginal title as having the following features:
- Aboriginal title land is held communally; and
- the land is subject to a limit. Aboriginal title land cannot be used in a manner that is irreconcilable with the nature of the Aboriginal group’s attachment to the land (i.e. one cannot strip mine in a hunting area), but can otherwise use the land for whatever purpose the group chooses.
In the Delgamuukw case (1997), the Supreme Court also articulated the test for establishing Aboriginal title. To prove that an Aboriginal group has a title claim to land, the group must show that occupation of that land was exclusive at the time of sovereignty (1867, when Canada became a country). Exclusive occupation does not mean that land cannot have been shared. Indigenous groups can make joint claims if they occupied the land together and excluded all others. Or, if a group historically permitted another to share their resources, this could be evidence that the group considered itself to have the right to decide who could come on to the land.
The first and only successful Aboriginal title claim was made by the Tsilhqot’in First Nation, a group of six semi-nomadic bands that claimed title over 4400 square kilometers of land to the south-west of Williams Lake in British Columbia (the area over which Aboriginal title was successfully made out is about 1,700 square kilometres). The Supreme Court clarified in this case in 2014 what factors need to be in place to establish title.
The Supreme Court decided that traveling and living in multiple locations at different points in the year could satisfy the “exclusive occupation” requirement for making an Aboriginal title claim. To found a claim, the Court ruled there must be an historical intention to occupy the land, communicated to other groups through action or law/custom, combined with actual regular use. The Court said that In determining whether occupation is sufficiently intense, courts should take into account the uses to which the relevant land can be put, as well as the technological capacity and mode of life of the group historically. In this case, the land was quite barren and could not have easily supported a larger population.
Aboriginal title is the most well-developed right recognized in section 35 as an Aboriginal right.
Rights to Activities
Aboriginal rights can arise from the occupation of land, but also from the prior social organization and distinctive cultures of Indigenous peoples on the land. Aboriginal rights are elements of practices, customs, or traditions integral to the distinctive culture of an Aboriginal group. In order for a court to recognize an Aboriginal right, the practice, custom, or tradition must have existed before European contact.
Although a practice, custom, or tradition must predate European contact to receive constitutional recognition, the courts have said that a practice, custom, or tradition can evolve into a modern form. For example, if the practice is to fish, and before European contact fishing was done with simple hooks or nets, people today may use powered fishing boats and modern fishing equipment.
The Supreme Court makes a distinction between Aboriginal title and Aboriginal rights. Aboriginal title is a specific type of Aboriginal right. Therefore, even where a title claim cannot be made out (for example, if occupation was not exclusive), an Aboriginal rights claim to engage in a practice or activity (such as hunting and fishing) can be made out on the land in question, resulting in the right receiving the protection of section 35.
Treaty rights are those rights listed in formal agreements between an Indigenous group or groups and the Crown. Beginning in the early 1700s, the British Crown, and later Canada, formed treaties with Indigenous peoples. Under these treaties, the government took control of large areas of land and, in exchange, promised to provide certain benefits. The promised benefits vary from treaty to treaty, but commonly include reserve lands, fixed yearly payments, and rights to hunt and fish. Many of the numbered treaties (Treaties 1-11 signed between 1871 and 1921) also include the provision of agricultural implements, livestock, ammunition, and clothing.
The Supreme Court of Canada has said that courts should interpret treaties liberally. Anything that is unclear in the treaty should be interpreted in a way favourable to the Indigenous group. In the case of R v Badger (1996) the Court held that oral promises made at the time of the treaty signing were to be considered in interpreting it. The Court said in the Ermineskin Indian Band and Nation v Canada (2009) case that it would be “unconscionable” to ignore oral terms of a treaty.
The Supreme Court has further held that terms that do not appear in the written treaty may be “read in.” “Reading in” is a practice where the Court decides that something not written down should have been included in the written treaty, so the Court reads the treaty as if the term is there.
In the case of R v Marshall (1999) for example, the 1760 Treaty of Peace and Friendship between the British Crown and the Mi’kmaq was interpreted to include an implied right to hunt, even though that was not made explicit in the document. The Treaty said that the Indians agreed to trade only at the government “truck-house” – a type of trading post. The Court referred to a document that described a meeting between the Crown and a different Indigenous group in the same area that had taken place a few weeks before the Treaty was signed which described a promise by the government to establish a truck house at a particular location, “for furnishing them with necessaries, in Exchange for their Peltry.” In order to trade for necessities, the Court held, there must be an implied term that there is a right to hunt for a meager living. The Court read in this right to the Peace and Friendship Treaty between the British Crown and the Mi’kmaq because similar promises likely would have been made to both the Mi’kmaq and the group who the promise is recorded as having been made to.
The Court uses these rules of interpretation because of a principle called “Honour of the Crown” which means that the Crown must act honourably in relation to Indigenous peoples and the commitments it has to them. The Supreme Court has said that treaties should be interpreted liberally because it should be assumed that the Crown was acting honourably when making these treaties and was not engaged in “sharp dealing.”
Therefore, when an Aboriginal group makes a specific claim regarding an unfulfilled treaty promise using section 35 of the Constitution, there is much room for the courts to recognize rights beyond the written words of the treaty.
Infringing Aboriginal or Treaty Rights, and the Duty to Consult
Enshrining Aboriginal and treaty rights in section 35 of the Constitution has not made Aboriginal and treaty rights absolute. Since section 35 is not a part of the Charter of Rights and Freedoms, it is not subject to section 1 of the Charter, a section that allows the courts to balance government justifications for infringement of rights against the severity of the infringement. The Supreme Court has therefore established a unique test in the Sparrow case for determining when Aboriginal or treaty rights can be infringed by the government.
First, government action that infringes an Aboriginal or treaty right must be done for a compelling and substantial objective that furthers the goal of reconciling the rights of Indigenous peoples (Aboriginal or treaty) with the assertion of Crown sovereignty.  These purposes include conservation, and economic and regional fairness.
If the purpose of the law passes the test – that is, if it furthers the goal of reconciling the rights of Indigenous people with the assertion of Crown sovereignty – then the court must determine if the government is acting in accordance with its fiduciary obligation to Indigenous people. The fiduciary obligation of the government is to give priority to the claims of Indigenous groups over non-Indigenous groups, and to take the group’s existing and potential Aboriginal and treaty rights seriously. The Supreme Court first recognized the fiduciary obligation of the Crown in the Guerin case in 1984. It held that the surrender of land to the Crown gave rise to the fiduciary obligation. The Court said in the Sparrow case in 1990 that the words, “recognized and affirmed” in section 35 confirm this fiduciary duty.
Duty to consult
As a part of this fiduciary duty, the Crown has a duty to consult and accommodate Indigenous groups when the groups Aboriginal (existing or potential) or treaty rights can be affected. The duty to consult is triggered where the Crown has actual or constructive knowledge of a potential or existing Aboriginal right that may be affected by their conduct or decision making.
The duty to consult exists on a spectrum, depending on the circumstances of the claim. The Court said in the Haida Nation v British Columbia (Minister of Forests) (2004) case that the government may be required to do as little as give notice to the group affected where the claim is weak, or the right infringement is minimal. The Court has said that only for very serious issues, consent may be required. In a case decided later in the same year as Haida, the Taku River Tlingit First Nation v British Columbia (Project Assessment Director) case, the Court clarified that the government is able to fulfil its duty even when no agreement has been reached with Indigenous peoples so long as they consult and accommodate, in accordance with their fiduciary duty.
Conclusions – Looking Forward
While the constitutional protection afforded to Aboriginal and treaty rights in section 35 has been a useful tool for Indigenous groups to enforce their rights in the courts, challenges remain. While Aboriginal title is now recognized, it comes with an inherent limit imposed by the state. The state retains underlying title to the land, and land can only be sold to the Crown (it cannot be mortgaged, for example). The state can infringe on the rights that are protected in its Constitution, so long as they can justify the infringement according to the Sparrow test that the Canadian courts have created.
Further, use of courts to assert rights is expensive and time consuming. Indigenous legal scholar John Burrows has critiqued the Aboriginal title claim process in particular for being unworkable. The Tsilquot’in case took 16 years and $40,000,000 to be resolved in the courts. This case was publicly funded as a test case. Burrows argues that the price tag for acquiring court-recognized Aboriginal title is unattainable to most.
Indigenous groups have experienced many successes in litigating Aboriginal and treaty rights using section 35 of the Constitution, however there is much room for the law to continue to evolve.
 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35.; R v Sparrow,  1 SCR 1075 at 1105, 70 DLR (4th) 385 [Sparrow].
 Calder et al. v. Attorney-General of British Columbia,  SCR 313, 34 DLR (3d) 145 [Calder]; R v Van der Peet,  2 SCR 507 at 538, 137 DLR (4th) 289 [Van der Peet].
 Sparrow, supra note 1 at 1091.
 Sparrow, supra note 1 at 1097; Delgamuukw v. British Columbia,  3 SCR 1010 at para 180, 153 DLR (4th) 193 [Delgamuukw].
 Sparrow, supra note 1.
 Van der Peet, supra note 2 at para 28.
 Van der Peet, supra note 2 at para 46.
 R v Badger,  1 SCR 771 at para 76, 133 DLR (4th) 324 [Badger].
“The Crown” refers to the British monarchy. Because Canada is a constitutional monarchy in which the British King or Queen is the head of state, the Government of Canada acts on behalf of the Crown. Early treaties were formed between the British Crown and First Nations. After Canada became a country, the Government of Canada stepped into the role of the British Crown in Canada-First Nation relationships.
 Note: Indigenous is the preferred international term to describe, “communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them.” Aboriginal is the constitutionally enshrined term to describe Indigenous people in Canada.
See: United Nations, Economic and Social Council, Study of the Problem of Discrimination Against Indigenous Populations, by Jose R. Martìnez-Cobo, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, catalogue number E/CN.4/Sub.2/1983/21 (New York: United Nations, Economic and Social Council, 1983).
 Calder, supra note 2 at 328; Guerin v The Queen,  2 SCR 335 at 378, 382, 13 DLR (4th) 321 [Guerin]. See also St. Catharine’s Milling and Lumber Co v R (1887),  13 SCR 577,  14 AC 46 (PC) [St. Catharine’s].
 Guerin, supra note 11 at 379; see also St. Catharine’s, supra note 11.
 Guerin, supra note 11 at 365.
 George R, Proclamation, 7 October 1763 (3 Geo III), reprinted in RSC 1985, App II, No I; Patrick J Monahan, Byron Shaw & Padraic Ryan, Constitutional Law, 5th ed (Toronto: Irwin Law Inc, 2017) at 475.
The Royal Proclamation is a document issued by King George III after the Seven Years War to proclaim ownership over the territory in North America. The Royal Proclamation also includes statements governing the relationship between settlers and Indigenous peoples.
 Calder, supra note 2 at 376; Guerin, supra note 111 at 399; Van der Peet, supra note 2 at 540, 577.
 Delgamuukw, supra note 5 at para 115.
 Delgamuukw, supra note 5 at 124.
 Delgamuukw, supra note 5 at para 117.
 Delgamuukw, supra note 5 at para 142.
 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at para 48,  2 SCR 257 [Tsilhqot’in].
 Tsilhqot’in, supra note 21 at para 38.
 Tsilhqot’in, supra note 21 at para 42.
 Tsilhqot’in, supra note 21 at para 33-44.
 Van der Peet, supra note 2 at para 46. See Van der Peet, supra note 2 at paras 48 – 75 for a discussion of factors to be considered in determining if an element is integral to the distinctive culture of the group.
 Van Der Peet, supra note 2 at para 61.
 Sparrow, supra note 1 at 1093.
 Van der Peet, supra note 2 at para 74.
 Treaties with Aboriginal people in Canada, online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca/eng/1100100032291/1100100032292>.
 Monahan, supra note 14 at 481.
 See Monahan, supra note 14 at 482: After the Calder decision in 1973, the government announced a willingness to settle claims with Indigenous peoples. As of June 2016, 1235 specific claims (this includes cases of non-fulfilled treaty promises and cases related to administration of land under the Indian Act) have been concluded, with approximately 350 under negotiation.
 See Anthony J Hall, “Treaties with Indigenous Peoples in Canada,” Canadian Encyclopedia (06 June 2011), online: < https://www.thecanadianencyclopedia.ca/en/article/aboriginal-treaties/>.
Van der Peet, supra note 2 at para 25.
 Badger, supra note 9 at para 52.
 Ermineskin Indian Band and Nation v Canada, 2009 SCC 9 at para 54,  1 SCR 222.
 R v Marshall,  3 SCR 456 at para 29, 177 DLR (4th) 513 [Marshall].
 Marshall, supra note 36 at para 35.
 Marshall, supra note 36 at para 67.
 See R. v. Lefthand, 2007 ABCA 206 at para 75, 222 CCC (3d) 129 for a discussion of the principle of the “Honour of the Crown.”
 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 19,  3 SCR 511 [Haida].
 Sparrow, supra note 1 at 1113.
 Sparrow, supra note 1 at 1114.
 Sparrow, supra note 1 at 1119.
 Guerin, supra note 11 at 389.
 Sparrow, supra note 1 at 1109.
 Haida, supra note 40 at para 35; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at para 34,  3 SCR 388. See also Beckman v Little Salmon/Carmacks First Nation  3 SCR 103, in which the majority found that the duty to consult is an implied term in regard to all rights in modern, comprehensive treaties that specifically call for consultation with regards to particular rights and not others.
 Haida, supra note 40 at para 35; Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 at para 31,  2 SCR 650.
 Haida, supra note 40 at para 37.
 Haida, supra note 40 at paras 43-45.
 Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at para 22,  3 SCR 550.
 John Burrows, “Aboriginal Title in Tsilhqot’in v. British Columbia  SCC 44,” Māori Law Review (August 2014), online: < http://maorilawreview.co.nz/2014/08/aboriginal-title-in-tsilhqotin-v-british-columbia-2014-scc-44/>.