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Indigenous Sovereignty: The Constitution Act, 1982

PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS

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

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

PART II RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

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

The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

"Section 35(1) applies to rights in existence when the Constitution Act, 1982  came into effect; it does not revive extinguished rights" (1076).

R. v. Sparrow, [1990] 1 S.C.R. 1075

"[T]hat other great mystery of the common law system . . . is that, even when judges change their minds, they simply declare the law as it always has been. So it may not matter that the courts have hitherto set their faces against tribal sovereignty. It can be revived and can qualify as an 'existing' Aboriginal right under s. 35(1) because it has always been there, had we only the wit to see it" (385-386).

Foster, Hamar. "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases." Manitoba Law Journal, vol. 343, 1992, pp. 343-389.

"The actual words of section 35 are 'the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.' The language used is not very specific and is the type that provides a field day for lawyers. However, the context of 1982 is surely enough to tell us that this is not just a codification of the case law on aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown" (100).

Lyon, Noel. "An Essay on Constitutional Interpretation." Osgoode Hall Law Journal, vol. 26, no. 1, 1988, pp. 95-126.

"While entrenchment may have given a small measure of legal and political legitimacy to aboriginal rights, a strong case can be made that entrenchment has placed aboriginal rights in a legal and political quicksand. As a consequence of entrenchment, Indians have essentially forfeited their prerogative to define these rights. Because entrenched aboriginal rights can be constitutionally defined only by amendment, if and when there is a constitutional amendment that defines aboriginal rights it will say what the eleven governments of Canada want it to say. If there is no constitutional amendment, then Canadian courts will define aboriginal rights. Either way, whether the definition is made by political process or by judicial process, Indians will be spectators (euphemistically termed 'consultants'), not decision makers or arbitrators" (Menno Boldt qtd. 81).

Monture-Angus, Patricia A. The Familiar Face of Colonial Oppression: An Examination of Canadian Law and Judicial Decision Making. Royal Commission on Aboriginal Peoples, 1994.

"The purpose of s. 35(1) of the Constitution Act, 1982 is to facilitate the ultimate reconciliation of prior Aboriginal occupation with de facto Crown sovereignty" (571).

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550

"[A]lthough Aboriginal peoples have the inherent legal right to govern themselves under section 35, this constitutional right is exercisable only within the framework of Confederation. Section 35 does not warrant a claim to unlimited governmental powers or to complete sovereignty, such as independent states are commonly thought to possess. Aboriginal governments are in the same position as the federal and provincial governments: their powers operate within a sphere defined by the Constitution" (36).

Partners in Confederation: Aboriginal Peoples, Self-Government, and the Constitution. Royal Commission on Aboriginal Peoples, Canada, 1993.

"[T]o hold that section 35(1) recognizes unextinguished aboriginal rights in their original form . . . leads to extreme consequences. It suggests, for example, that regulations implementing basic safety precautions in hunting, or protecting a rare species of animal might be invalid. It seems, moreover, inconsistent with the word 'existing', which suggests that the rights in question are affirmed in a contemporary form rather than in their primeval simplicity and vigour" (782).

Slattery, Brian. "Understanding Aboriginal Rights." The Canadian Bar Review, vol. 66, no. 4, 1987, pp. 727-783.