Parliamentary Research Branch

PRB 99-16E




Prepared by:
Mary C. Hurley
Law and Government Division
8 September 1999
Revised 13 July 2000









Constitutional Affirmation

By the 1970s, Canadian courts had begun to acknowledge that Aboriginal peoples’ occupation of the land from time immemorial gave rise to legal rights not provided for by treaty or statute. The constitutionalization of Aboriginal and treaty rights in 1982 established a new legal framework within which longstanding Aboriginal claims might be addressed. Section 35 of the Constitution Act, 1982 did not create rights; the provision recognizes and affirms the "existing Aboriginal and treaty rights" of the Aboriginal peoples of Canada, and situates those rights outside the Canadian Charter of Rights and Freedoms with its section 1 limitation clause. The absence of terms defining the rights placed the task of interpreting the scope of section 35 squarely in the judicial sphere.

Judicial Interpretation:   Aboriginal Rights

To date, Aboriginal rights cases considered by the Supreme Court of Canada have primarily involved claims to fishing rights in the context of penal charges under various fisheries regulations. These rulings establish general principles, while stressing that the outcome in Aboriginal rights cases depends on findings of fact specific to each case. In 1990, the Court’s landmark Sparrow decision articulated an initial interpretive framework. Sparrow established that: the term "existing" refers to rights that are "unextinguished," or extant; section 35 rights may limit the application of federal and provincial law to Aboriginal peoples, but are not immune from regulation; the Crown must justify any proven legislative infringement of an existing Aboriginal right. Under the Sparrow justification test, the Crown must prove that the infringing measures serve a "valid legislative objective" - such as natural resource conservation - and that they are in keeping with the special trust relationship and responsibility of the government vis-à-vis Aboriginal peoples. Further questions to be addressed, depending on the circumstances, include whether the infringement has been minimal, whether fair compensation has been available in a context of expropriation, and whether the affected Aboriginal group has been consulted.

Several 1996 rulings supplemented the Sparrow guidelines. In the commercial fishing rights trilogy Van der Peet, Gladstone and Smokehouse, a majority of the Court defined Aboriginal rights as flowing from practices, traditions and customs central to Aboriginal societies prior to contact with Europeans; such practices and traditions must - even if evolved into modern form - have been integral to the distinctive Aboriginal culture. Dissenting justices and others viewed this approach as unduly narrow, and as establishing a heavy burden of proof for Aboriginal claimants to meet. The trilogy also established that the constitutionalization of Aboriginal rights was intended to reconcile the prior occupation of North America by Aboriginal peoples with the assertion of Crown sovereignty over Canadian territory. In the Côté and Adams fishing rights decisions, section 35 protection of Aboriginal rights was held not to be conditional on Aboriginal title, or on post-contact recognition of those rights by colonial powers. In Pamajewon, a case raising self-government issues in relation to high stakes gambling, the Court ruled that, assuming section 35 covers self-government claims, they are subject to the same analytical framework as other Aboriginal rights claims.

In December 1997, the Court’s groundbreaking Aboriginal title ruling in Delgamuukw outlined principles applicable to this category of Aboriginal rights claim. Although the decision did not resolve the merits of the case before the Court, Delgamuukw confirmed that common law Aboriginal title had been fully constitutionalized by section 35, and distinguished Aboriginal title from other Aboriginal rights based on the connection it represents between an Aboriginal group and land. The Court saw this aspect as pivotal in determining the scope of Aboriginal rights. These were described as falling along a spectrum, with Aboriginal title representing the broadest entitlement because it confers a right to the land itself.

Having defined criteria for proving Aboriginal title (relatively exclusive occupation prior to Crown sovereignty that has been relatively continuous to the present), the Court outlined a justification test for infringements of Aboriginal title based on general principles established in its previous section 35 decisions. Thus, the range of legislative objectives capable of justifying infringements of Aboriginal title is relatively broad, while the nature of the government’s fiduciary duty is determined by the nature of title. The fact that Aboriginal title encompasses the right to exclusive use and occupation of the land is relevant to the degree of scrutiny of the infringing measure or action; the fact that it also encompasses the right to choose how the land is used influences the nature and scope of the Crown’s obligation to consult the Aboriginal group(s) whose title is infringed; and the fact that title has an economic component affects the amount of compensation due.

A further noteworthy aspect of the Delgamuukw decision concerns its confirmation that courts are required to adapt rules of evidence when adjudicating Aboriginal rights. That is, they must accommodate the oral histories of Aboriginal societies, which may provide the only record of their past, and place such histories on an equal footing with documentary historical evidence.

Judicial Interpretation:   Treaty Rights

The Supreme Court of Canada’s relatively few section 35 treaty rights decisions to date interpret the scope and modern status of hunting and fishing rights provisions in historic land-related or "peace and friendship" treaties. These questions typically arise, as in Aboriginal rights cases, in relation to penal charges under provincial legislation prohibiting hunting or fishing activities that are claimed, in defence, as treaty rights. And, as in Aboriginal rights cases, the Court has emphasized the importance, in deciding section 35 treaty rights cases, not only of respecting general interpretive principles, but also of a contextual, case-by-case approach.

In its 1996 and 1999 hunting rights decisions in R. v. Badger and R. v. Sundown, the Court reviewed applicable principles of treaty interpretation under which:

  • treaties are sacred agreements in which exchanges of solemn promises are made and mutually binding obligations created;

  • because the honour of the Crown is always at stake in its dealings with Aboriginal peoples, treaty interpretation having an impact on treaty rights must be approached so as to maintain the Crown’s integrity, based on the assumption that the Crown intends to fulfil its promises;

  • textual ambiguities are to be resolved in favour of Aboriginal peoples, and restrictions of treaty rights narrowly construed, while the Crown bears the burden of strict proof that a treaty right has been extinguished based on evidence of a clear government intention to do so;

  • although treaty rights, like Aboriginal rights, are not absolute, it is equally if not more important to justify prima facie infringements of treaty rights, in most cases under the test developed by the Court in relation to infringement of Aboriginal rights discussed above;

  • treaty rights are specific and may be exercised only by the First Nation(s) that signed the treaty in question.

In the Court’s September 1999 fishing rights ruling in R. v. Marshall, the application of these interpretive principles and factual considerations resulted in confirmation of unextinguished treaty rights for Mi’kmaq and Maliseet First Nations in the Atlantic provinces and Québec and ensuing, persisting controversy as to how and by whom these rights might be exercised.

Unfinished Business

Judicial interpretation of section 35 is still in its relative infancy. Numerous questions as to the scope of "existing Aboriginal and treaty rights" remain to be resolved. Issues relating to Aboriginal title, such as the timing and extent of governments’ duty to consult Aboriginal peoples, to the scope of governmental authority to regulate the exercise of treaty rights, to the inherent right of self-government, and other matters of fundamental concern to Aboriginal peoples, come before Canadian courts with regularity.

The question of how expansive section 35 protection must be in order to foster a just settlement for Canada’s Aboriginal peoples remains a subject for debate. Some take the view that a broad approach may lead to inequality of treatment among Canadians, or other consequences perceived as negative from a public policy perspective. Others are concerned that a narrow approach by government or the judiciary risks stripping the constitutionalization of Aboriginal rights of substantive effect. These issues are likely to continue to be raised in the political and judicial spheres for some time to come.

Selected References

Allain, Jane May. Aboriginal Rights. CIR 89-11E. Parliamentary Research Branch, Library of Parliament, Ottawa.

Allain, Jane May. Aboriginal Fishing Rights: Supreme Court Decisions. BP-428E. Parliamentary Research Branch, Library of Parliament, Ottawa, October 1996.

Hurley, Mary C. Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. British Columbia, BP-459E. Parliamentary Research Branch, Library of Parliament, Ottawa, revised February 2000.