5 The Constitution Act, 1982, and Court Cases from the 1970s to the 2010s

The Constitution Act, 1982 (passed in the United Kingdom as the Canada Act) was a document that took the UK’s authority to amend Canada’s constitution and gave it to Canada. It is the second of Canada’s two constitutions (the first being the Constitution Act, 1867, commonly known as the British North America Act, 1867).

Section 35 of the Constitution Act, 1982, has the following provision:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

This has several important effects:

1. It recognizes already existing rights. Note that the Constitution Act, 1982, does not create any new Aboriginal rights.
2. It is up to the Supreme Court of Canada to determine what the specifics of those rights are.
3. Rights enshrined in the Numbered Treaties are affirmed. Rights extinguished by the Numbered Treaties, including to land, are not resurrected. This is a reason why Indigenous groups argue that the Numbered Treaties were a right-of-way rather than a land grant, but the Canadian government argues otherwise. (Hogg, 2010)

The extent and effect of these Aboriginal rights have been debated for decades. Typically, the content of these rights has to do with privileges regarding usage of the land, including hunting, fishing, and not having traditional land spoiled by industrial activity. However, these specific rights are decided on a case-by-case basis according to the traditional usage of that land. The first modern case to hit the Supreme Court of Canada was Calder et al. v. Attorney-General of British Columbia in 1973. Since then, the leading case of Delgamuukw v. British Columbia in 1997 established the legal test for Aboriginal title and the Crown’s duty to consult.

All rights in the Canadian Charter of Rights and Freedoms — including the rights to freedom of expression and freedom of religion and the rights in section 35 of the Constitution — are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” While section 35 is not part of the Canadian Charter of Rights and Freedoms, the government can still infringe Aboriginal rights if it justifies the infringement. In 1990, in R. v. Sparrow, the Supreme Court of Canada affirmed Aboriginal rights, but also created a framework that the government must use if they seek to legally justify an infringement of those rights.

More information on the content and duties surrounding Aboriginal rights can be found in the section The Nature of Aboriginal Title.