Section 35Edit
Section 35
Section 35 of the Constitution Act, 1982 is a foundational element of Canada’s legal order when it comes to the rights of Indigenous peoples. The provision states that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” In practical terms, this has meant that Indigenous rights predate modern law, but are now enshrined in the supreme law with a constitutional status that courts and governments must respect. Over the past several decades, a large body of jurisprudence has interpreted what those rights entail, how they interact with Parliament and provincial legislatures, and how they should be reconciled with economic development and provincial interests. The conversation around Section 35 sits at the intersection of property rights, treaty obligations, natural-resource policy, and the governance of lands and resources that have long been central to Canadian politics.
The reach of Section 35 is not a single, fixed catalog. Rather, its scope has been shaped by courtroom decisions that distinguish between aboriginal rights based on historical practices and contemporary treaty rights enacted through negotiation. In this sense, the section functions as a framework for recognizing and affirming rights that were in existence before Confederation, while also acknowledging the promises embedded in negotiated treaties. The Crown’s obligation to honor the Crown and the duty to consult and accommodate are often invoked in this context, tying Section 35 to standards of good faith, fair dealing, and procedural fairness in how governments manage projects that may affect Indigenous rights.
Historical context
Before 1982, Indigenous rights in Canada were understood through common law, statute, and treaty; the modern constitutional embedding came with the patriation of the Constitution in 1982 and the addition of the Charter of Rights and Freedoms alongside provisions like Section 35. The inclusion of Section 35 reflected a legislative and political consensus that pre-existing rights should not be dismissed in a new constitutional framework. The idea was to create a stable and principled platform for constitutional recognition that could endure changes in political leadership and shifting public attitudes toward Indigenous issues.
Legal framework and key concepts
Aboriginal rights versus treaty rights: The framework distinguishes between rights that arise from long-standing Indigenous practices and those negotiated through treaties. The two categories have different evidentiary origins and legal consequences, but both fall under the umbrella of Section 35 as “existing” rights that require respect in policy and law.
Aboriginal title: A related but distinct concept, Aboriginal title refers to a right of exclusive use and occupancy of land based on ancestral occupation. The Supreme Court has defined and refined this concept in cases such as Tsilhqot’in Nation v. British Columbia, linking it to substantial and exclusive use of land and to the obligation of the Crown to manage rights in a manner consistent with the honour of the Crown.
The duty to consult and accommodate: A procedural obligation that arises when the Crown contemplates actions that might affect Aboriginal rights. The duty to consult is not a veto right, but it requires meaningful engagement and, when warranted, accommodations to address potential harms or infringements to rights.
The honour of the Crown: A constitutional principle that underpins the Crown’s conduct in managing rights and negotiating settlements. It serves as a standard for fairness, good faith, and fiduciary-like responsibility in dealings with Indigenous communities.
Jurisprudence as a policymaking engine: With many questions left to interpretation, court decisions have become a major source of policy direction. This has produced a steady stream of decisions that refine what counts as an “existing right,” how infringements are justified, and what constitutes adequate consultation.
Major provisions and rights recognized
Recognition and affirmation of existing rights: Section 35 protects rights that existed at the time of constitutional recognition, including treaty rights that have been preserved through negotiation. This has provided a constitutional floor for Indigenous claims and has legitimized ongoing negotiations over land, resources, and governance.
Treaty rights and harvesting rights: Treaty rights to hunt, fish, and gather have been prominent in case law and policy debates. Courts have emphasized that such rights are not static; they may be subject to reasonable limits and to regulation in the interests of conservation and public health, so long as these limits are justified and minimally impair the rights.
Aboriginal title and land claims: The doctrine of Aboriginal title, while not exhaustively codified in Section 35 itself, has been developed through jurisprudence as a form of recognized Indigenous rights to land. In practice, this means that on lands where Aboriginal title is established, the Crown must consult and may need to accommodate or compensate for infringements tied to resource development or other uses.
Practical implications for development: The framework yields a system in which governments and projects must consider Indigenous rights in the planning and execution of major undertakings, from pipelines and mines to infrastructure and urban development. The aim is to balance Indigenous interests with broader public and economic objectives, guided by the principle that rights are protected but not an obstacle to reasonable progress.
Controversies and debates
Economic and development concerns
Uncertainty for investment and permitting: Proponents of a more predictable development regime argue that Section 35 jurisprudence has created uncertainty about land rights and the timing of approvals. They contend that the need to engage in comprehensive consultation, negotiate accommodations, and navigate overlapping rights can slow projects and raise costs.
The value of settlements: Critics of drawn-out negotiations emphasize the economic and strategic costs of long-running land claims and settlements. They argue that predictable regimes for resource access and land use are essential for attracting investment, financing large projects, and ensuring energy and infrastructure security.
Co-management versus clear title: A recurring debate centers on whether Indigenous rights should be managed through co-management arrangements or clarified through streamlined governance frameworks. Supporters of clearer, more predictable arrangements say this reduces regulatory risk and fosters a favorable climate for development.
Governance, reconciliation, and policy design
Negotiations versus litigation: Section 35 has driven a heavy reliance on negotiation and treaty settlements. Advocates note that negotiated agreements can yield durable, tailor-made arrangements but worry about the time and cost of settlements, especially where multiple Indigenous groups have overlapping or conflicting claims.
The scope of rights and modern treaties: The meaning and reach of “existing rights” in practice has become a subject of debate. Some argue for tighter, more explicit definitions tied to historical practice and treaty language, while others defend a flexible interpretation that accommodates evolving Indigenous governance and economic needs.
Jurisprudence and the rule of law: Critics sometimes claim that courtroom-driven developments undermine democratic processes or create ad hoc standards that are difficult to translate into policy. Defenders counter that a robust, court-guided framework provides legitimacy, accountability, and uniformity in government action related to Indigenous rights.
Controversies about policy framing and critique from critics of progressive framing
Left-of-center critiques often emphasize historical wrongs and advocate bold reform to address inequality and automatic deference to Indigenous governance. Proponents of the Section 35 framework respond by stressing the practical necessity of clear rules for development, the importance of property rights, and the need for durable settlements that provide certainty for business, communities, and taxpayers.
Critics of expansive interpretations argue that rights should be anchored in explicit treaties or narrowly defined to prevent ongoing disputes that stall national objectives. Supporters say that the constitutional framework reflects centuries of reality on the ground and that the Crown’s duty to consult is a principled tool to balance interests without erasing Indigenous heritage or bargaining power.
Woke criticisms that the framework is “unworkable” or inherently biased against development are addressed by pointing to successful settlements, clarified regimes for consultation, and outcomes where projects proceed after appropriate accommodations. The core claim is that recognizing rights does not equal paralysis; rather, it creates a platform for predictable, fair, and cooperative development that respects the constitutional order.
See also