What rights do Indigenous peoples have in the Constitution?

Indigenous constitutional rights in Canada come from a layered set of instruments that long predate the Constitution Act, 1982. The Royal Proclamation of October 7, 1763, issued by King George III after the British conquest of New France, recognised that Indigenous lands could only be acquired by the Crown through treaty and that no private settlement on Indigenous lands was permitted. Section 25 of the Charter of Rights and Freedoms preserves the rights flowing from the Royal Proclamation. The British North America Act of 1867 assigned 'Indians and Lands reserved for the Indians' to federal jurisdiction under section 91(24), creating the constitutional foundation for federal-Indigenous relationships.

The Constitution Act, 1982 brought the most significant additions. Section 35 recognised and affirmed existing Aboriginal and treaty rights. Section 35(2) explicitly listed First Nations, Inuit, and Métis as the three Aboriginal peoples of Canada. Section 35.1, added in 1983, requires First Ministers' Conferences with Indigenous representatives before any amendment affecting Indigenous matters. Section 25 of the Charter ensures that no Charter right can abrogate Indigenous rights, treaty rights, or rights preserved by the Royal Proclamation. The Daniels v. Canada decision of April 14, 2016 confirmed that the federal government's section 91(24) responsibility extends to Métis and non-status Indians.

Treaties are a parallel source of constitutional rights. The historic numbered treaties (Treaties 1 to 11, signed 1871 to 1921) cover most of the prairies and Northern Ontario. The Robinson-Huron and Robinson-Superior Treaties of 1850 cover much of Northern Ontario. The Douglas Treaties of 1850 to 1854 cover parts of southern Vancouver Island. Modern comprehensive land claims agreements include the James Bay and Northern Quebec Agreement of 1975 (Cree and Inuit), the Inuvialuit Final Agreement of 1984, the Nunavut Land Claims Agreement of 1993 (covering 350,000 square kilometres of Inuit-owned land), the Nisga'a Final Agreement of 2000 (the first modern BC treaty), and many others. These treaties have constitutional protection under section 35 and section 35.1.

Modern federal commitments build on this constitutional foundation. The federal Inherent Right Policy of 1995 acknowledges that self-government is an existing section 35 right. Stephen Harper's June 11, 2008 federal apology for residential schools acknowledged the harms done. The Truth and Reconciliation Commission's 94 Calls to Action of June 2, 2015 set the current reconciliation framework. The federal United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14, in force June 21, 2021, commits Canada to ensuring federal laws are consistent with UNDRIP. Provincial UNDRIP legislation has followed in British Columbia (2019) and is under consideration in other provinces. The constitutional structure makes Indigenous rights one of the most active areas of Canadian law.