COW - Section 35 of the Constitution Act 1982 - Background - June 10, 2021

Key messages

• The Constitution is the supreme law of Canada.
• Canada’s Constitution includes the Constitution Act, 1867, and the Constitution Act, 1982. It sets out the basic principles of democratic government in Canada, and includes Canada’s Charter of Rights and Freedoms.
• Section 35 of the Constitution Act, 1982 explicitly recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. Section 35 also indicates that the term “Aboriginal peoples of Canada” includes the First Nation, Inuit and Métis peoples of Canada.
• Further, section 25 of the Constitution Act, 1982 protects the Aboriginal and treaty rights that are recognized in section 35 and ensures that no other provision of the Charter can take away or supersede those rights.
• The revised text of the Oath uses wording that aims to mention in a succinct way the broad range of rights applied equally to diverse Indigenous peoples, as described in the Constitution Act, 1982.

Supplementary messages

Wording not identical to Section 35 of the Constitution Act, 1982

• Aboriginal and treaty rights are recognized and affirmed by the Constitution Act, 1982 in section 35(1), which states “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
• Although the Constitution refers to “the existing Aboriginal and treaty rights,” nothing should be read into the absence of the word “existing” in the proposed text modifying the Oath of Citizenship.  Its absence will not – and cannot – have any effect on the scope of section 35(1) of the Constitution Act, 1982. 
• The proposed oath aims to mention the constitutionally-protected Aboriginal and treaty rights of the Indigenous peoples in a way that is succinct, and in a way that minimizes the use of words – such as “existing.”

Why refer to the Constitution in the proposed wording of the Oath?

• The Constitution is the supreme law of Canada; including a reference to the Constitution does not change the existing commitment in the Oath to respect the “laws of Canada”.
• All governments in Canada, federal and provincial, are legally subject to the Constitution, including the recognition of Aboriginal and treaty rights therein. The proposed change to the Oath allows new Canadians to share in this recognition regardless of where they live in Canada.
• Section 35 of the Constitution Act, 1982 specifically recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada. In section 35, the term “aboriginal peoples of Canada” refers to the First Nation, Inuit and Métis peoples of Canada.
• The proposed wording of the Oath mentions the rights that are covered by section 35, and mentions the fact that the Constitution recognizes those rights. These features of the wording would, in substance fulfill the Truth and Reconciliation Commission’s Call to Action # 94.

Use of “Aboriginal” versus “Indigenous”

• Although the term “Indigenous” is the accepted term currently used to describe First Nations, Inuit and Métis, the language proposed in the bill refers to “Aboriginal rights” because that is the term used in Section 35 of the Constitution Act, 1982.
• Further, this language is consistent with the text that introduces the Call to Action #94, which states that “Canada’s Oath of Citizenship must include a solemn promise to respect Aboriginal and Treaty rights.”

Background

Section 25 of the Constitution Act, 1982 reads as follows:

• 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
  1. any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
  2. any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

Section 35 of the Constitution Act, 1982 reads as follows:

• 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Definition of “aboriginal peoples of Canada”

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

Land claims agreements

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

Aboriginal rights and Treaty rights

• Aboriginal rights (commonly referred to as Indigenous rights) are collective rights of distinctive Indigenous societies flowing from their status as the original peoples of Canada. These rights are recognized and affirmed by Section 35 of the Constitution Act, 1982.
• The Constitution Act, 1982 does not define Indigenous rights under Section 35, but they vary from group to group depending on the customs, practices and traditions that have formed part of their distinctive cultures and can include:
  • Aboriginal title (ownership rights to land)
  • rights to occupy and use lands and resources, such as hunting and fishing rights
  • self-government rights
  • cultural and social rights
• Treaty rights are rights set out in either a historic or modern treaty agreement and are recognized and affirmed by Section 35 of the Constitution Act, 1982. Treaties define specific rights, benefits and obligations for the signatories that vary from treaty to treaty. Treaties and treaty rights also vary depending on the time and circumstances in which they were negotiated.
• Historic treaties (signed before 1975) often, but not always, include land to be set aside for First Nation use only, money to be paid to a First Nation every year, hunting and fishing rights on unoccupied Crown land, and schools and teachers on reserves to be paid for by the government.
• Modern treaties negotiated with Indigenous groups (after 1975) may include consultation and participation requirements, ownership of lands, wildlife harvesting rights, financial settlements, participation in land use and management in specific areas, and self-government.