Indigenous Peoples and Canadian Constitutional Law

Introduction

The constitutional status of Indigenous peoples in Canada has undergone a fundamental transformation since the enactment of s. 35 of the Constitution Act, 1982. From a position of near-complete legal subordination under the Indian Act regime and the doctrine of terra nullius, Canadian constitutional law has evolved to recognize existing Aboriginal and treaty rights as constitutionally protected, to affirm Aboriginal title as a sui generis proprietary right, and to impose a duty to consult and accommodate Indigenous peoples on the Crown before taking actions that may adversely affect asserted or established rights. This evolution reflects judicial recognition of the historical injustices of colonization and a commitment to reconciliation between the Crown and Indigenous peoples.

Section 35: Recognition and Affirmation

Section 35(1) of the Constitution Act, 1982 provides that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(2) defines the Aboriginal peoples of Canada as including the Indian, Inuit, and Métis peoples. Section 35(3) clarifies that “treaty rights” includes rights that exist by way of land claims agreements or may be so acquired. Section 35(4) guarantees these rights equally to male and female persons.

Unlike Charter rights, s. 35 rights are not subject to the s. 1 reasonable limits analysis. Instead, they may be infringed where the Crown demonstrates a compelling and substantial legislative objective and consistency with the fiduciary duty owed to Indigenous peoples. The leading case remains R v. Sparrow, [1990] 1 SCR 1075, which established the framework for analysing s. 35 claims: first, the claimant must demonstrate an existing Aboriginal right; second, the Crown must justify any infringement. Sparrow articulated a purposive, generous interpretation of “existing,” rejecting the argument that only rights exercised at the moment of proclamation were protected. The “existing” modifier extinguished only those rights clearly and explicitly extinguished prior to 1982. The Court also established that the fiduciary duty requires the Crown to act honourably in its dealings with Indigenous peoples.

Aboriginal Rights: The Van der Peet Test

The criteria for proving an Aboriginal right under s. 35 were established in R v. Van der Peet, [1996] 2 SCR 507. The claimant must demonstrate that the practice, tradition, or custom was integral to the distinctive culture of the Aboriginal group prior to European contact (the “integral to a distinctive culture” test). The practice must be of central significance to the Aboriginal society, a defining feature of that society, not merely incidental or occasional. The Court has applied this test to recognize Aboriginal rights to fish for food, social, and ceremonial purposes (Sparrow; R v. Gladstone, [1996] 2 SCR 723); to engage in commercial fishing where integral to pre-contact culture (Gladstone); and to exercise regulatory authority over lands and resources.

The Van der Peet test has been criticized for freezing Aboriginal rights in their pre-contact form and for requiring proof of pre-contact practices that may be impossible to document. The Court partially addressed these concerns in R v. Sappier; R v. Gray, [2006] 2 SCR 686, which held that the right to harvest wood for domestic purposes could be established at a sufficiently general level of specificity — the practice of harvesting wood for shelter, tools, and fuel, rather than specific species or methods.

Aboriginal Title

Aboriginal title is a sui generis proprietary right to exclusive use and occupation of ancestral lands. The Supreme Court definitively established the test for proof of Aboriginal title in Delgamuukw v. British Columbia, [1997] 3 SCR 1010: (1) the land must have been occupied prior to Crown sovereignty; (2) there must be continuity of occupation between present and pre-sovereignty occupation; and (3) at sovereignty, the occupation must have been exclusive. Aboriginal title encompasses the right to decide the uses to which the land may be put and to benefit from those uses, but is subject to an inherent limit: the land cannot be used in a manner that destroys its value for future generations.

In Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257, the Court for the first time granted a declaration of Aboriginal title to a specific territory (approximately 1,900 square kilometres in British Columbia). The Court clarified that Aboriginal title confers the right to exclusive use and occupation of the land and to enjoy the benefits of the land, including its economic resources. The Crown must justify any infringement of Aboriginal title under the Sparrow framework, and a duty to consult arises before any infringement occurs.

The Duty to Consult and Accommodate

The duty to consult and accommodate is a constitutional obligation arising from the honour of the Crown and s. 35. Established in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, the duty applies where the Crown has knowledge of a potential Aboriginal right or title and contemplates conduct that may adversely affect it. The scope of the duty is proportionate to the strength of the claim and the severity of the potential adverse impact — a spectrum from merely notifying and discussing (at the low end) to deep consultation and accommodation (at the high end, where a strong prima facie case of Aboriginal title is established).

In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, the duty was extended to proven treaty rights. The duty has been elaborated in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 SCR 650 (the duty applies even before proof of the right or title, and may be triggered by strategic, high-level decisions rather than only site-specific conduct) and Clyde River (Hamlet) v. Petroleum Geo-Services Inc., [2017] 1 SCR 1069 (the duty applies to regulatory approvals and may require consent in appropriate circumstances). The duty is Crown’s alone — while the Crown may rely on regulatory processes to fulfil consultation obligations, it cannot delegate the ultimate responsibility for ensuring adequate consultation and accommodation.

Treaty Rights

Historic treaties (primarily the Upper Canada Treaties, the Robinson Treaties, the Numbered Treaties 1–11, and the Douglas Treaties) are constitutionally protected under s. 35. The Supreme Court has held that treaties must be interpreted in a broad, purposive manner consistent with the honour of the Crown, resolving ambiguities in favour of Indigenous signatories (R v. Badger, [1996] 1 SCR 771; R v. Marshall, [1999] 3 SCR 456). The Crown’s fiduciary duty applies to treaty implementation. Treaty rights may be infringed where the Crown justifies the infringement and demonstrates that the infringement is consistent with treaty promises.

Modern treaties and comprehensive land claims agreements have been concluded in parts of Canada where Indigenous title was not historically surrendered. These include the James Bay and Northern Quebec Agreement (1975), the Nisga’a Final Agreement (1998), the Nunavut Land Claims Agreement (1993), and the Tsawwassen First Nation Final Agreement (2007). These agreements typically provide for: the transfer of fee simple title to specified lands; defined self-government powers; resource revenue sharing; wildlife harvesting rights; and the application of federal and provincial laws subject to the agreement. Modern treaties are constitutionally protected under s. 35(3) and enjoy the same status as historic treaties.

UNDRIP Implementation

The United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c. 14, received royal assent on June 21, 2021, requiring the Government of Canada to take all measures necessary to ensure that Canadian laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Act requires the development of an action plan in consultation with Indigenous peoples and annual reporting on progress. UNDRIP recognizes Indigenous peoples’ rights to self-determination, self-government, free, prior and informed consent, lands, territories and resources, and cultural integrity. The constitutional implications of the Act’s implementation remain to be fully worked out, particularly regarding the relationship between s. 35 and the requirement of free, prior and informed consent.

Truth and Reconciliation and MMIWG

The Truth and Reconciliation Commission of Canada (TRC) issued its final report in 2015, documenting the history and legacy of the Indian Residential School system and issuing 94 Calls to Action. These include calls for law reform in areas including child welfare, education, language, health, and justice; the implementation of the United Nations Declaration on the Rights of Indigenous Peoples; and the repudiation of the doctrine of discovery and terra nullius. The National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) issued its final report in 2019, declaring the violence against Indigenous women, girls, and 2SLGBTQQIA+ people to constitute a genocide under international law, and issuing 231 Calls for Justice. Both reports have significantly influenced constitutional discourse, though implementation remains ongoing.

Conclusion

Indigenous constitutional law in Canada has evolved from a doctrine of near-complete Crown sovereignty and legislative supremacy to a pluralist framework recognizing constitutional rights, the honour of the Crown, and the imperative of reconciliation. The framework remains incomplete — the content of the right to self-government under s. 35 has not been fully defined, the division of legislative authority between Indigenous governments and federal and provincial orders remains contested, and the implementation of UNDRIP and the TRC Calls to Action will continue to reshape the constitutional landscape.