Constitution Act 1982
Implementation of Section 35 (1) and (2)
This document provides an examination of Section 35 (1) and (2) in order to provide the
perspective of what Section 35 (1) and (2) recognizes and why it is a Full Box.
Prepared by: Sol Sanderson
Senator Consultant
FSIN Office of the Senate First Nations Forum
100 – 103A Packham Ave PO Box 262
Saskatoon SK S7N 4K4 Muskoday SK S0J 3H0
P: (306) 665-1215 P: (306) 960-3023
Date: May 1, 2017
Constitution Act 1982, Section 35
PART II
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
Recognition of existing aboriginal and treaty rights
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 and treaty rights are guaranteed equally to both sexes
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights
referred to in subsection (1) are guaranteed equally to male and female persons.
The scope of the impact of Section 35 (1) and (2) requires comprehensive concurrent
agendas and political/legal plans and strategies of the Crown in Right of Canada as
represented by the Federal Government and the First Nation/Indigenous Nations and
their respective Governments.
What is Section (35) based on?
Why is Section (35) a full box?
What is the impact of section 35(1) and (2)?
This document provides an examination of Section 35 (1) and (2) in order to provide the
perspective of what Section 35 (1) and (2) recognizes and why it is a Full Box.
Constitution Act 1982: Implementation of section 35 (1) and (2) 1
1. Status of Section 35 (1)
Section 35 (1) provides the Constitutional recognition of Inherent Rights/Aboriginal
Rights, Treaties and Treaty Rights.
Section 35 (1) and (2) impacts on both of the House of Commons and the Senate.
The Office of the Prime Minister, Privy Council, Treasury Board, all
Federal Departments and/or Agencies.
2. Why is Section 35 a full box?
Section 35 (1) and (2) is a “full box” that recognizes the following:
a. First Nations/Indigenous Nations have “inherent sovereignty”, inherent rights
and power of self-determination that exists now and for the future.
b. Inherent Rights and Title of First Nations/Indigenous Nations are “granted by
the Creator”; they are not granted by any agreement, Treaty, Constitutions or
Law and include:
Inherent rights to language, spirituality and culture.
Inherent rights of education, social and health.
Inherent rights to justice and economics.
Inherent rights to citizenship/citizens and membership.
Inherent right for fishing, hunting, trapping and gathering.
Inherent rights to Air and Water.
Inherent rights to Lands and Resources. (Renewable and Non-Renewable
Resources, etc.)
Inherent rights and powers to self-determination.
c. The Royal Proclamation of 1763 “issues royal instructions” that recognizes
Inherent Rights and Title, Sovereignty of Indian Nations, National Treaty
Making Powers of Indian Nations and the Treaty Making Process between
Indian Nations and the Crown.
Section 25 (2) of the Constitution Act 1982 recognizes the Royal instructions
and the Royal Proclamation of 1763. The Honorable Judge Dixon advised
during a meeting that the Royal Proclamation of 1763 is the Crown’s Charter of
Rights recognizing our inherent rights and title, “but you will still need your own
Charter of Rights under your laws”.
d. Treaties One to Eleven:
The “Treaties One to Eleven are International Treaties” between First
Nations and the Crown in Right of England and Ireland. The “Novation of
Constitution Act 1982: Implementation of section 35 (1) and (2) 2
the Crown Theory” transfers the responsibility of the Crown in right of
England and Ireland to the Crown in Right of Canada.
Both the Treaties and Treaty Rights exist and the Treaties provides for
Treaty Relations.
Treaties One to Eleven forms one major Treaty between Indian Nations and
the Crown.
e. Inherent Rights and the Treaties:
Inherent (Aboriginal) Rights are “reserved” by Treaty Making and the
Treaties.
Inherent (Aboriginal) Rights are “recognized” by Treaty Making and the
Treaties.
Inherent (Aboriginal) Rights are “confirmed” by Treaty Making and the
Treaties.
f. Impact of Inherent (Aboriginal) Rights and Title, Treaties and Treaty Rights are
recognized by Section 35 (1) and they have to be implemented in every sector.
g. Section 35 (1) and (2) expanded the federal legal, political and fiscal obligations
under section 91(24) of the British North America Act 1867.
The Federal Government and Parliament are obligated to give Legal Effect to
Inherent (Aboriginal) Rights, Treaties and Treaty Rights under a schedule of
new Federal laws by sector that lawfully identifies the federal legal, fiscal, trust
and jurisdiction by sector.
3. Section 35(2) recognizes Indian, Inuit and Métis peoples of Canada
This is a constitutional recognition under the Constitution Act 1982.
This is also citizenship recognition in the form of dual Canadian citizenship for
Indians that will require amendments to the Citizenship Act of Canada and the
Indian Act: Membership” provisions respecting:
The First Nations/Indigenous Nations government, jurisdiction and laws that
implement and enforce citizenship under the First Nations/Indigenous Nations
Citizenship Acts and Citizens Codes.
The Federal Government and Parliament’s Treaty and Constitutional
requirements includes the need for new Federal Laws respecting the federal
legal, fiscal, jurisdiction and trust obligations for the Inherent (Aboriginal)
Rights, Treaties and Treaty Rights and enact laws for the lawful registration of
Indians, Métis and Inuit with recognition of their respective status under their
Citizenship Acts. Federal registration and laws must include recognition of
the special status and rights with full benefits for Indians, Inuit and Metis.
Constitution Act 1982: Implementation of section 35 (1) and (2) 3
4. Section 35 (1) and (2) provides for the recognition of the portability of the
sovereignty, inherent rights and treaty rights of Indians (Metis/Inuit) nationally and
internationally.
5. The comprehensive legal and political framework of “inherent rights and title,
treaties, Royal Proclamation of 1763, the Constitution Act 1982, the British North
American Act 1867, the International Laws and the United Nations Declaration on
the Rights of Indigenous Peoples includes section 35 (1) and (2).
New legal and political institutions and structures of parliament, the federal
government and Aboriginal governments are required.
6. The comprehensive legal and political framework that includes the treaties and
section 35 recognizes the formal government-to-government bilateral relations
having to be implemented between the Crown and Aboriginal Governments.
Constitution Act 1982: Implementation of section 35 (1) and (2) 4
