[Previous] [Contents] [Next]

The Meaning of Section 35

On a plain reading of the language of the section, the existing aboriginal and treaty rights and, in addition, the rights contained in land claim agreements entered into after April 16, 1982, are recognized and affirmed. Two questions arise: what is the effect of the section and what are its contents?

The Effect of Section 35

To provide in the Constitution that certain things are "recognized and affirmed" can mean a great deal or mean very little. At the one extreme, it can be interpreted as nothing more than a symbolic recognition expressing a high regard for the subject in question. An example of this is the clause contained within the preamble of our Constitution that we recognize the supremacy of God; an expression of noble sentiment but not interpreted (as yet anyway) as in any way to guide or restrain individual or governmental conduct. At the other extreme, the words "recognized and affirmed" could be interpreted to almost mean "guaranteed" or "inviolate" and thereby beyond the reach of ordinary legislation at either the federal or provincial level.

It becomes readily apparent that at what point on the spectrum a judge comes down is, in the absence of other factors that bear on the interpretation of the words, a highly subjective matter. As we know, the Supreme Court of Canada, first in the Sparrow case and then in the Delgamuukw case, has gone a long way to giving an expansive meaning to the words. As I understand the Sparrow decision, the Court found that these words do not automatically render legislative action unconstitutional, if that action affects the exercise of aboriginal rights, provided the legislative action can pass a justification test that the Court in Sparrow described as a "strong check on legislative power." For the purposes of this paper, it is not necessary to set out the justification test contained in Sparrow and elaborated upon by the Court in Delgamuukw. In my view, I believe it is fair to say that the effect of a practical site-specific application of the test laid down (as distinct from the concept in a mere theoretical setting) is seriously to impair, at great cost to the taxpayer, the exercise of legislative action and the management of the public lands.

In my view, the Court has gone too far along the spectrum of interpretations to be given to the words "recognized and affirmed." Subsequent efforts will have to be made in future cases, by governments and their advocates willing to advance provincial interests fully, to induce the Court to pull back from its present position. Without question, provincial interests have not been aggressively advanced—or even mildly advanced in some cases—before the courts in recent years on aboriginal issues. That must change.

In the vacuum created by the lack of a substantive presentation of provincial interests before the courts in these matters, the sophistry of the reports of the Royal Commission on Aboriginal Peoples has flooded in. Propositions by a coterie of academics who spend all their time spinning fanciful theories largely out of thin air and with little regard to the state of the law and jurisprudence before 1990 have, alas, been adopted by the bright and "progressively minded" young law clerks in the Supreme Court of Canada and, thence, have entered into that Court's judgments.

In those future law suits (and in particular that now initiated by the British Columbia Liberals), more of the history of the origin of this section must be emphasized as outlined in the earlier part of this analysis. There can be no doubt, judging from the lack of provincial involvement in the early stages; minimal deliberation in formulating the words; and reliance on the future aboriginal conferences to negotiate matters of substance, that the formulation of Section 35 was not viewed by the First Ministers, or even by the aboriginal leaders, as being intended to be much more than a symbolic recognition of the rights stated.

But, I am not so much concerned in this paper with the effect of Section 35 as I am with its content.

The Contents of Section 35

Generally

It is obvious from a plain reading of Section 35 that there is no attempt to define the rights to which it refers. The section was generally described at the time it was enacted as being an empty box. What were the existing aboriginal rights referred to? One would have to look to the jurisprudence for an answer. What were the existing treaty rights? One would have to look to the treaties themselves, as interpreted by the courts, for an answer. The section does not expand by one iota the meaning and content of aboriginal and treaty rights. Whatever they are, they are. What the section does do is give those rights (whatever they are) some degree of constitutional status.

"existing"

More than likely the section would not have been agreed to in November 1981 by the requisite number of provinces had not the word "existing" been added. Premier Lougheed, who was its author, describes why it was added in the quotation that appears earlier in this paper (page 12). As Mr Lougheed says, the word was added as it was feared that without it the section "would create new rights that were not previously recognized in law."

The Supreme Court of Canada considered the meaning of "existing" in the Sparrow case and concluded that such rights are those that were in existence when the Constitution Act, 1982 came into force although they may be exercised "in a contemporary form rather than in their primeval simplicity and vigour." The Court in that case also spoke of "flexibility" and permitting "evolution over time."

It is important to emphasize that the Dickson Court in Sparrow gave meaning to the word "existing" that certain academics and perhaps even the Lamer Court would take away. Dickson's talk of flexibility and "evolution" have in some quarters been misconstrued to refer to substantive new rights rather than merely the changing form of existing rights. Efforts to retain this distinction should be made in future litigation.

As is indicated above, the aboriginal leadership was adamantly opposed at the 1983 Conference to the word "existing" and sought to have it removed. Their frontal assault on the word proved unsuccessful in attracting sufficient government support to remove it. However, by virtue of the 1983 modern land-claim agreement amendment, the aboriginal leadership in effect achieved half their objective by having the section apply to future treaty rights as well as to existing rights.

"aboriginal rights"

These rights are those that are determined by a court to be aboriginal rights in site-specific situations. Inasmuch as aboriginal rights, by virtue of their nature, are prior in time to the present, the question arises as to what is the import of the term "aboriginal rights" being qualified by the word "existing"? "Existing" must be given some meaning and effect.

When Lougheed and the other Premiers considered agreeing to Section 35, I believe they did so because they thought that "existing" aboriginal rights would only include those rights that had been determined by a Court to be aboriginal rights prior to the coming into force of the section. That is why in his statement at the 1983 Conference explaining his understanding of the meaning of "existing" he excluded "new rights not previously recognized by law."

Inasmuch as the Supreme Court of Canada in 1982 cases after 1982 and, more particularly, in Delgamuukw, greatly expanded the law on aboriginal rights, could it be successfully argued that these new kind of rights do not have the protection of Section 35 at all? They are aboriginal rights to be sure but they do not fall within Section 35 because they did not exist in 1982. This is a legal argument waiting to be made.

On another issue, some argue that the so-called "inherent" right to self-government is implicit in the words "aboriginal rights" as they appear in this section. There is no judicial support for this view (as yet anyway). This is because it is a fundamental constitutional principle of Canadian federalism that the totality of legislative power is distributed by the Constitution between the federal Parliament and the several provincial legislatures. There is no room for a third order of government having constitutional status, such as the native leadership seeks, short of a constitutional amendment.

This proposition that the "inherent" right to self-government is implicit in the words "aboriginal rights" is trite law. A long line of cases going back as far as 1887 and up to the present day constitute an unbroken line of authority on the point. In Delgamuukw, the trial judge said:

neither this nor any Court has the jurisdiction to undo the establishment of the Colony, Confederation, or the constitutional arrangements which are now in place. Separate sovereignty or legislative authority, as a matter of law, is beyond the authority of any Court to award...

The plaintiffs must understand that Canada and the provinces, as a matter of law, are sovereign, each in their own jurisdictions, which makes it impossible for aboriginal peoples unilaterally to achieve the independent or separate status some of them seek. In the language of the street, and in the contemplation of the law, the plaintiffs are subject to the same law and the same Constitution as everyone else. The Constitution can only be changed in the manner provided by the Constitution itself.

In the same case, on appeal, Macfarlane, J.A., speaking for the majority stated:

With respect, I think that the trial judge was correct in his view that when the Crown imposed English law on all the inhabitants of the colony and, in particular, when British Columbia entered Confederation, the Indians became subject to the legislative authorities in Canada and their laws. In 1871, two levels of government were established in British Columbia. The division of governmental powers between Canada and the Provinces left no room for a third order of government.

Any doubt that aboriginal people are subject to this distribution is eliminated by s.91(24), which awards legislative competence in relation to Indians to Parliament.

The Supreme Court of Canada did not deal with the issue of the "inherent right" to self-government in Delgamuukw but did so in The Queen vs Pamajewon and Jones, in 1996, by upholding a decision of the Ontario Court of Appeal rejecting the inherent-right argument as the basis for conducting gambling on reserves.

Treaty Rights

By virtue of subsection (3) of Section 35 passed at the 1983 Conference, the term "treaty rights" is amended to include rights contained in future land-claim agreements. Schwartz is of the view that this amendment "was a significant step in defining and extending the scope of the constitutional protection given the rights of aboriginal peoples" (1986). And so it is, for before the amendment only pre-1983 treaty rights were covered whereas after the amendment post-1983 treaty rights were also included.

The crucial question is whether self-government regimes can properly be included within land-claim agreements and thereby acquire the protection of Section 35(1).

Schwartz addresses the question thus:

Could any of those agreements acquire the constitutional protection of s.35(3)? If the answer is yes, then by expanding the scope of s.35(1) to include post-April 17, 1982, agreements, s.35(3) may have provided a mechanism whereby Indian self-government in Canada can receive constitutional recognition and protection . . . For now, I will say only that the effect that s.35(3) may have on the constitutional position of aboriginal self-government may be one of the most important outcomes of the March `83 Conference—even if that effect did not occur to many, or even any, of the participants. (1986: 141)

In a closely knit argument that deserves careful study, Schwartz gives both the pros and cons of the legal position and speculates as to whether Section 35(1) amended by Section 35(3) in 1984 could give constitutional protection to agreements on self-government (1986: 280-85). I have no doubt that the speculations of Schwartz have had an influence on the thinking of the Royal Commission on Aboriginal Peoples and may yet have a similar influence on the Supreme Court of Canada when that Court is squarely faced with the issue of whether Sections 35(1) and 35(3) gives constitutional recognition to aboriginal self-government.

In answer to the question, I would argue in the negative for the following reasons.

When the First Ministers agreed to Section 35(3), they did so in the knowledge of the kind of land-claim agreements that existed up to that time. To elaborate on the point: by 1982, two modern land-claim agreements had been concluded in Quebec; four were in progress in the Northwest Territories and a further 14 were in progress in the Yukon. In all of the Northwest and Yukon Territories land-claim negotiations, the matter of self-government was being negotiated through separate agreements outside of, and separate from, the land-claim agreement negotiations. In the case of the two land-claim agreements in Quebec, the measure of self-government extended is largely administrative in nature, under Quebec law and under the control of the Quebec government. No wholesale giving away of legislative power, à la Nisga'a, here.

My point is that when governments agreed to amend Section 35(1) so that it applied to future land-claim agreements, they were entitled to assume that the nature and content of such future agreements would be of the genre of modern land-claim agreements recently concluded and then being negotiated, that is, absent self-government arrangements. Of all the modern land-claim agreements, only British Columbia has allowed itself to be so compromised. It calls for a judicial determination.

(1) To suggest that Section 35(1), as amended, allows senior governments to divest their legislative powers permanently through future land-claim agreements is to suggest that the 1983 amendment had the affect of amending the Constitution's amending formula. That is impossible because to amend the amending formula requires the approval of all provinces. Quebec did not approve the 1983 amendment.

(2) Short of a constitutional amendment, no government or legislature has the constitutional power to give away its legislative power nor can it do so under the guise of a land-claim agreement. A provincial government can give away in land-claim agreements its revenue on virtually any basis it wishes; it can divest itself of public lands for any consideration it deems appropriate; but, it cannot divest itself of legislative power and put it forever beyond its capacity to retrieve that power. No proper reading of Section 35 can help it do so.

[Previous] [Contents] [Next]

info@fraserinstitute.ca You can contact us at the above email address for any comments or information requests. Please report any dead links or technical problems.

If you know someone who would be interested in this web page, please enter their email address below, and we will forward this URL to them: Email Address:

Last Modified: August 23, 2000.