Infringement and justification

Aboriginal and treaty rights are afforded constitutional protection under section 35. However, these rights are not absolute and can be regulated or limited (infringed) through legislation or executive action as long as the infringement can be justified by the Crown (Sparrow, SCC; Badger, SCC). The federal government and provincial governments must justify infringements of section 35 rights that arise from Crown conduct or legislation within their respective areas of legislative jurisdiction (Grassy Narrows, SCC).

Prima facie infringement

An infringement of a section 35 right can be described as a real interference, limitation, or meaningful diminution of a section 35 right with some specificity (Gladstone, SCC; Tsilhqot’in Nation, SCC; Ahousaht v Canada, 2018 BCSC 633). Generally, the following factors will aid in determining whether an infringement has occurred:

The cumulative effects of existing regulatory regimes and development projects previously authorized by the Crown can be considered under the analytical framework of Sparrow in order to determine whether a subsequent Crown action infringes a right protected under section 35 (Yahey v British Columbia, 2021 BCSC 1287).

Justifying infringements

The general principles governing justification were established in Sparrow, where the SCC set out a two-step process of analysis starting with whether the measure had a valid legislative objective. If yes, the inquiry proceeds to the second stage of inquiry, which is guided by the Crown’s fiduciary relationship with Indigenous peoples and the goals of reconciliation. At this stage of inquiry, the test must be adapted to the legal and factual context in which the infringement arose. While the considerations will vary with the circumstances, they might include whether there was as little infringement as possible, whether fair compensation was provided and whether the collective was consulted.

At the first stage of the justification analysis, a prima facie infringement of section 35 rights can be justified if there is a valid, compelling and substantial objective in the public interest underlying its action. Valid legislative objectives may include:

That said, a general public interest would be insufficient. Relatively recent guidance on the issue of justification is found in Tsilhqot’in Nation. In that case the Supreme Court of Canada noted generally that, in the first stage of justification, the compelling and substantial objective of the government must be considered from the Indigenous perspective as well as from the perspective of the broader public.  Specifically, citing Gladstone and Delgamuukw the Supreme Court of Canada signaled that for something to constitute a compelling and substantial purpose, the broader public goal asserted by the government must further the goal of reconciliation, having regard to both the Indigenous interest and the broader public objective. 

At the second stage of the inquiry, the action taken has to be consistent with the Crown’s fiduciary obligations to the Indigenous group.  Essentially, the Crown must have taken the section 35 right seriously and accorded it the right priority (Sparrow, SCC). In Tsilhqot’in, in describing the Crown’s fiduciary duty in the context of justifying incursions on Aboriginal title, the Supreme Court of Canada identified the following requirements which apply in relation to section 35 rights short of Aboriginal title:

This is not an exhaustive list, and not every factor will apply in all cases.

In Sparrow, the Supreme Court of Canada indicated that in deciding whether an infringement is justified, courts must consider all relevant circumstances. Similarly, in the more recent cases the courts have pointed to a need for courts to look at all the relevant circumstances and be flexible (see Tsuu T’ina Nation v Alberta (Environment), 2008 ABQB 547).

While there is no equivalent to section 1 of the Charter setting out the framework for justifying section 35 rights, the Supreme Court of Canada has drawn significantly on section 1 jurisprudence in developing its justification analysis (see Sparrow).

Based on the obligation to act in a manner that upholds the fiduciary obligation towards Indigenous peoples, the constitutionally entrenched section 35 rights take priority over other rights and privileges which are not constitutionally protected (Sparrow, SCC). For example, in fisheries, section 35 protected Aboriginal fishing rights are second only to conservation, but the burden of conservation should not fall primarily on Indigenous groups. In other words, other fisheries such as commercial and recreational fisheries should also be limited to conserve the resource.