The Constitution Act, 1982 and Section 35
The Constitution Act, 1982 and Section 35
Native Studies 30 | Unit 2, Lesson 8.2 | The Constitution Act, 1982 and Section 35
Native Studies 30 | Unit 2, Lesson 8.2 | The Constitution Act, 1982 and Section 35
Learning Goal: I can explain what Section 35 of the Constitution Act, 1982 says and why it was a significant moment for Indigenous peoples in Canada. I can also describe at least one issue that Section 35 did not resolve and that Indigenous peoples have continued to fight for since 1982.
Before 1982, Canada's Constitution was still British law. Only the Parliament of Westminster in London could amend it, a leftover of Canada's colonial relationship to Britain. In October 1980, Prime Minister Pierre Trudeau introduced a resolution to patriate the Constitution, bringing it fully under Canadian control for the first time. The resolution was drafted with no consultation with First Nations, Inuit, or Métis leaders, and it said almost nothing about their rights.
That changed with Section 35, added to the new Constitution Act, 1982. It states: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed," and defines aboriginal peoples of Canada as including First Nations, Inuit, and Métis peoples. Two more clauses were added in 1983: one confirming that rights gained through land claims agreements count as treaty rights, and one guaranteeing that these rights apply equally to men and women.
Section 35 does not sit inside the Canadian Charter of Rights and Freedoms. It forms its own separate part of the Constitution, Part II, placed right after the Charter ends. That placement matters. The Charter contains a notwithstanding clause, letting a government override certain rights for up to five years at a time. Section 35 has no such override. Once a right is recognized under Section 35, Parliament cannot simply vote to suspend it.
The word "existing" was deliberate, and courts have argued over its meaning ever since. In the 1990 case R. v. Sparrow, the Supreme Court ruled that "existing" means a right had to still be in effect in 1982 and not previously extinguished, but that the word does not freeze rights exactly as they looked that year. Rights can be interpreted and can evolve over time.
Section 35 was not a gift from the federal government. First Nations, Inuit, and Métis organizations forced their way into a process designed to leave them out. The most direct action was the Constitution Express. In November 1980, George Manuel, then president of the Union of BC Indian Chiefs, chartered two trains that carried close to a thousand people from Vancouver to Ottawa to protest the exclusion of Aboriginal rights from the patriation plan. When Ottawa did not change course, a delegation carried the same message to the United Nations in New York, then to the Netherlands, Germany, France, Belgium, and finally England, lobbying members of the British Parliament directly. By late January 1982, after months of sustained international pressure, the federal government agreed to add recognition of Aboriginal and treaty rights to the Constitution.
Saskatchewan has its own direct connection to this moment. In the same week the Constitution Act was signed, Saskatchewan chiefs met and adopted the Provisional Charter of the Federation of Saskatchewan Indian Nations, forming Canada's first Indian legislative assembly on April 16, 1982. The FSIN traces its roots to the Federation of Saskatchewan Indians, which had already spent years building the case for self-government, publishing position papers in 1977 and 1979 arguing that First Nations sovereignty was inherent and had never been surrendered. Section 35's recognition of existing rights and Saskatchewan's push toward self-governing First Nations institutions were happening at the same time, for the same reason.
Section 35 recognizes that Aboriginal and treaty rights exist. It does not say what all of those rights are. Courts have had to define the scope of Section 35 case by case ever since 1982, deciding whether specific rights, such as fishing, hunting, or land title, count and how far they extend.
The bigger unresolved question is self-government. The Constitution Act, 1982 itself required a follow-up constitutional conference, held within a year, to further identify and define Indigenous rights, including self-government. That conference and the ones that followed through the 1980s never produced an agreement First Nations, Inuit, and Métis leaders were willing to accept. Self-government was never entrenched in the Constitution the way the general recognition of rights was. It remains something First Nations across Canada, including the nations that formed the FSIN, continue to negotiate and assert today, the subject of Lesson 9.
patriate: To bring a country's constitution fully under its own legal authority, ending the need for another country's parliament to approve amendments. Canada patriated its Constitution in 1982.
entrench: To place a right directly in a country's constitution, making it far harder to remove or override than an ordinary law.
self-government: The authority of a First Nation to govern its own affairs, land, and people according to its own laws and institutions, rather than under federal control.
Key Idea: Section 35 of the Constitution Act, 1982 was the first time Canada's Constitution recognized Aboriginal and treaty rights, won only after sustained pressure from Indigenous leaders like George Manuel and the Constitution Express. It protects existing rights outside the reach of the Charter's notwithstanding clause, but it never defined what those rights include or entrenched a right to self-government, a fight that continues today.
"Constitution Act, 1982 Section 35." Indigenous Foundations, First Nations and Indigenous Studies Program, University of British Columbia. https://indigenousfoundations.arts.ubc.ca/constitution_act_1982_section_35/
"Constitution Express." Indigenous Foundations, First Nations and Indigenous Studies Program, University of British Columbia. https://indigenousfoundations.arts.ubc.ca/constitution_express/
"Federation of Saskatchewan Indian Nations (FSIN)." The Encyclopedia of Saskatchewan, Canadian Plains Research Center, University of Regina. https://esask.uregina.ca/entry/federation_of_saskatchewan_indian_nations_fsin.html
"Constitution Act 1982 Document." The Canadian Encyclopedia, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/constitution-act-1982-document