Aboriginal Peoples of Canada

Section 35(2) states that the “aAboriginal Peoples of Canada” includes the “Indian, Inuit and Métis peoples of Canada”.

The section 35 jurisprudence has not expressly considered the meaning of Indian and Inuit peoples of Canada. The meaning of the “Métis peoples of Canada” has been considered. The term “Métis” in section 35 has been defined as not encompassing all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears (R v Powley, 2003 SCC 43). Additionally, Métis and non-status Indians are “Indians” under section 91(24) of the Constitution Act, 1867 (Daniels v Canada, 2016 SCC 12).

Indigenous groups located outside of Canada can be recognized as “aAboriginal Peoples of Canada” since section 35 protection can extend to these Indigenous collectives 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 (Desautel, SCC).