Provision and context

Section 35 of the Constitution Act, 1982 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.

The effect of section 35 is to give constitutional status and protection to the existing “AboriginalFootnote 1 rights and treaty rights” of the Indigenous peoples of Canada (R. v. Sparrow, [1990] 1 SCR 1075). Section 35 protection can extend to Indigenous collectives located outside Canada where they are modern day successors of Indigenous societies that occupied Canadian territory at the time of European contact or, presumably, for Métis, communities that were present in Canada at the time of effective European control (R v Desautel, 2021 SCC 17).  

Section 35 did not create rights. Rather, it affirmed rights that existed, some of which were recognized at law long before the coming into force of section 35 (Sparrow, SCC). The word "existing" indicates that the rights to which section 35(1) applies are those that were in existence when the Constitution Act, 1982 came into effect.  Prior to 1982, Aboriginal and treaty rights had no constitutional protection, but were recognized in the common law (Calder et al. v Attorney-General of British Columbia, [1973] SCR 313 Delgamuukw v British Columbia, [1997] 3 SCR 1010). As such, they were subject to regulation and extinguishment by unilateral government action. However, the constitutional protection of Aboriginal and treaty rights that applies post-1982 means that there is now an obligation on the Crown to justify infringements of these rights according to the test outlined below (Sparrow, SCC; R v Van der Peet, [1996] 2 SCR 507; Shot Both Sides v Canada, 2024 SCC 12). This primer provides an overview of court decisions that have considered section 35, focusing primarily on Supreme Court of Canada decisions. The jurisprudence with respect to the scope and content of rights that are protected by section 35 continues to evolve.

For a general overview of the location of Indigenous communities and information pertaining to their potential or established Aboriginal or treaty rights, you may wish to consult the Aboriginal and Treaty Rights Information System (ATRIS), a Web-based information system hosted by Crown-Indigenous Relations and Northern Affairs Canada.