What is Section 35 of the Constitution Act, 1982?

Section 35 of the Constitution Act, 1982 is the constitutional provision that recognises and affirms Indigenous rights in Canada. Section 35(1) reads: 'The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed'. Section 35(2) defines 'aboriginal peoples of Canada' as the Indian, Inuit, and Metis peoples of Canada. Section 35 sits in Part II of the Constitution Act, 1982, outside the Canadian Charter of Rights and Freedoms (which is Part I), and is not subject to the section 1 limitation clause or the section 33 notwithstanding clause.

Section 35 protects two distinct rights. Aboriginal rights are inherent rights arising from the prior occupation and use of the land by Indigenous peoples before European contact. They include hunting, fishing, gathering, cultural practices, the use of language, and Aboriginal title to land. The leading case on Aboriginal rights is R. v. Van der Peet (1996), which set out the integral-to-distinctive-culture test. Treaty rights arise from negotiated agreements between Indigenous nations and the Crown, including the historic numbered treaties (1 to 11, signed 1871 to 1921), the pre-Confederation Robinson and Douglas treaties, and modern comprehensive land claims agreements.

Section 35 is constrained by the Sparrow framework. R. v. Sparrow (1990) established that section 35 protects existing rights, that those rights are not absolute, and that the Crown can justify infringements by demonstrating a valid legislative objective and consultation with the affected Indigenous group. Subsequent cases have refined the test: R. v. Badger (1996) on treaty rights, R. v. Marshall (1999) on Mi'kmaq treaty fishing, Delgamuukw v. British Columbia (1997) on Aboriginal title, and Tsilhqot'in Nation v. British Columbia (2014) on the recognition of declared Aboriginal title.

The Crown's duty to consult and accommodate Indigenous peoples on government decisions that may adversely affect their rights flows from section 35 and was set out by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests) (2004), Taku River Tlingit First Nation v. British Columbia (2004), and Mikisew Cree First Nation v. Canada (2018). The depth of consultation depends on the strength of the right and the severity of the impact. Major resource projects including the Trans Mountain Expansion, Coastal GasLink, and Energy East have generated significant duty-to-consult litigation. Section 35 is the constitutional anchor for the Truth and Reconciliation Commission's 94 Calls to Action of 2015 and the federal United Nations Declaration on the Rights of Indigenous Peoples Act of 2021.