Canadian Constitutional Law/Aboriginal peoples

Government jurisdiction

By virtue of section 91(24) of the Constitution Act, 1867 the federal government has exclusive jurisdiction over matters relating to “Indians and lands reserved for the Indians”. On this basis the federal government has sole jurisdiction to negotiate treaties with the aboriginal peoples. Any attempt on the part of the provincial governments to interfere with any of the treaties would be in violation of the Constitution.

The Indian Act is the sole legislation regulating the government oversight of aboriginals. Much of the Act deals with the rights of band members living on reserves, and has little constitutional significance.

Provincial Jurisdiction

Section 88 of the Act provides that the provinces can have jurisdiction over aboriginal matters so long as it does not conflict with the laws of the Act.

88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.

The extent of provincial authority over Indian matters apply only with respect to matters that fall within the provincial jurisdiction. However, in practice five exceptions have been developed.

Aboriginal and Treaty rights

Section 35 of the Constitution Act, 1982 acknowledges the existence of aboriginal and treaty rights, it states:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
(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.
(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.

Often this section is confused as being part of the Charter which ends at section 34. Thus, this section provides an absolute right to aboriginals and is not subject to section 1 or 33.

The word "existing" is key to the understanding of section 35. The Supreme Court acknowledged in R. v. Sparrow[1990] 1 S.C.R. 1075 that, prior to 1982, aboriginal rights existed by virtue of the common law, and therefore could extinguished by an Act of Parliament. However, with the constitutional entrenchment of those rights in section 35, aboriginal rights cannot be extinguished unilaterally by the government.

Broadly speaking, section 35 provides for two types of aboriginal rights: Aboriginal Treaty Rights and Aboriginal Rights. The first is a sui generis right gained through the enactment of treaties between the government and the aboriginal peoples. Proving the existence of these rights can often prove difficult as they are frequently based on oral tradition passed on through the aboriginal peoples. The second type is a right based in the common law.

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