connection_depth = 6; current_page_id = 56; canvas_translatey = 0; (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 Constitution Act is difficult to change.For some parts of the Act, the Senate, the House of Commons and all provinces must agree to any amendments (changes). Aki-Kwe/Mary Ellen Turpel, “Aboriginal Peoples and the Canadian Charter of Rights and Freedoms: Contradictions and Challenges.” Canadian Women’s Studies 10.2 & 3 (1991): 149-157.
With the Statute of Westminsterin 19… What Aboriginal rights include has been the topic of much debate and discussion, and they have been defined over time through Supreme Court cases such as R. v. Calder and R. v. Sparrow. Only the British Parliament had the authority to amend (change) the BNA Act. 309-315. First Nations Studies Program. For example, Stó:lo author Lee Maracle considers that Section 35 reinforces colonialism by recognizing Canadian law as supreme, instead of breaking away from it as would be expected under a true nation-to-nation relationship.6 Lawyer and judge Mary-Ellen Turpel also argues that by accepting the Constitution, a colonial form of rule based in Western (non-Indigenous) concepts and ideologies, such as individual rights and private property ownership, one is acknowledging the colonial power as the overarching, supreme law in which “everything has to be adjusted to fit the terms of the dominant system.”7. Given that legal cases have at times upheld Aboriginal rights (e.g., Sparrow) and at other times allowed infringement, the true impact of Section 35 remains to be seen. 9 Borrows, “Measuring a Work in Progress: Canada, Constitutionalism, Citizenship and Aboriginal Peoples.” In Walkem and Bruce, 225. Its contents are an amalgamation of various codified acts, treaties between the Crown and indigenous peoples, uncodified traditions and conventions. Dancing Around the Table, Part One. All rights reserved.

rgraph = rgraphviz_e64eaacab3ede22f5c67709dbc0686f6; Twenty Years of Section 35. Constitution Act, 1982. feature_color = "#dd3333"; canvas_translatex = 0;

Aboriginal Canadians had not been consulted about the new constitution, and there was initially very little reference to Aboriginal rights. The Constitution of Canada is the supreme law in Canada. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. 196. Consolidation. CONSTITUTION ACT, 1982 PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: Guarantee of Rights and Freedoms Rights and freedoms in Canada 1. Aboriginal groups across Canada became concerned that, with the transfer of constitutional powers from Britain to Canada, established agreements affirming Aboriginal rights and title would no longer hold legal weight. rgraph = rgraphviz_e64eaacab3ede22f5c67709dbc0686f6;

Early drafts and discussions during the patriation of the Canadian Constitution did not include any recognition of those existing rights and relationships, but through campaigns and demonstrations, Aboriginal groups in Canada successfully fought to have their rights enshrined and protected. PART I. CANADIAN CHARTER OF RIGHTS AND FREEDOMS. http://scc.lexum.org/en/1990/1990scr1-1075/1990scr1-1075.html. (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. initviz(globalID,drawtocanvas,rgraphviz_e64eaacab3ede22f5c67709dbc0686f6); Dancing Around the Table Part Two. University of British Columbia, Vancouver, B.C. 10. 8 Walkem, Ardith and Halie Bruce, eds. Section 35 to many Indigenous Peoples has remained a powerful yet invisible force. Clauses (3) and (4) section was further developed in 1983-4 as a result of consultations with Aboriginal representatives during the First Ministers’ Conference on Aboriginal Rights in March 1983.5 These clauses were added after lengthy campaigns by women’s groups, who were unrepresented in the initial discussions and experienced systemic gender discrimination from such legislation as Bill C-31. 3 R. v Sparrow, [1990] 1 S.C.R. According to subsection 52 of the Constitution Act, 1982, the Canadian Constitution cons Maurice Bulbulian. node_default_size = 4; Cambridge: Harvard University Press, 2004. Home and Native Land: Aboriginal Rights and the Canadian Constitution.

In response to the proposed patriation, many Aboriginal organizations and activists joined in demonstrations, fundraisers, and campaigns to have their title and rights explicitly recognized in the Constitution. Also included were a series of British constitutional conventions (widely accepted, unwritten rules). Vancouver: Theytus, 2003. The phrase “existing aboriginal rights” must be interpreted flexibly so as to permit their evolution over time.3. The most important of these was the British North America Act (now called the Constitution Act, 1867). Because of the strong fight for recognition by Canada’s Aboriginal peoples, Section 35 was added to the constitution in time to be formally patriated in 1982. 1 Asch, Michael. arrow_type = "line"; Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law: Guarantee of Rights and Freedoms.

The Canadian government did not initially plan to include Aboriginal rights so extensively within the constitution when the Act was being redrafted in the early 1980s. There has been much debate over the effectiveness of Section 35. display_weighted = 1; the part of the Constitution Act that recognizes and affirms Aboriginal rights

Available online here via York University. vizcontainer = "viz_containerviz_e64eaacab3ede22f5c67709dbc0686f6"; 6 Maracle, Lee. canvas_width = 200; var rgraphviz_e64eaacab3ede22f5c67709dbc0686f6; Borrows also feels that recognition of Aboriginal rights in Section 35 places the issue “squarely in the public eye”—crucial for the Canadian public’s acceptance of pre-existing Aboriginal rights.10. node_default_colour = "#dd3333"; There are far more Indigenous people who personally know brothers, sisters, aunts, dads, and uncles who have been stopped, questioned, charged, and convicted for exercising their Aboriginal Rights, than who know of the existence or content of s.35. Asch, Michael. Vancouver:  Theytus, 2003. It is important to understand that Section 35 recognizes Aboriginal rights, but did not create them—Aboriginal rights have existed before Section 35. Section 35 is the part of the Constitution Act that recognizes and affirms Aboriginal rights. Agincourt: Methuen, 1984. The legal text of the Charter is published online as Constitution Act, 1982. Vancouver: Theytus, 2003. canvas_default_zoom = 1; Dir. National Film Board of Canada, 1987. s Juristocracy. drawtocanvas = "infovisviz_e64eaacab3ede22f5c67709dbc0686f6"; In other words, the federal government cannot override Aboriginal rights. use_feature = 1; 1075. T heC an di h rt e of R g sF m gu ar n ts rights and freedoms set out in it subject only to such reasonable The Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms and other provisions, including the procedure for amending the Constitution of Canada. Aboriginal rights have been interpreted to include a range of cultural, social, political, and economic rights including the right to land, as well as to fish, to hunt, to practice one’s own culture, and to establish treaties.1. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. SCHEDULE B. 4 Manuel, Arthur. “The Operation was Successful, But the Patient Died.” In Walkem, Ardith and Halie Bruce, eds. Walkem, Ardith and Halie Bruce, eds. Twenty Years of Section 35. In 1982, the Queen and the Right Honourable Pierre Trudeau, Prime Minister, signed the Constitution Act, 1982, which includes the British North America Act and the Canadian Charter of Rights and Freedoms..
Box of Treasures or Empty Box? This allows Section 35 to be exempt from the “notwithstanding clause” that applies to the Charter.

Dir. Box of Treasures or Empty Box? Canada is one of the oldest constitutional democracies in the world. Twenty Years of Section 35. label_default_size = 8; Agincourt: Methuen, 1984. On the other hand, John Borrows of the Nawash First Nation and Law Foundation at the University of Victoria argues that the Constitution helps settle what was a troubled relationship between the Canadian government and Aboriginal Peoples, with the government initially able to infringe on Aboriginal rights without providing Aboriginal peoples with “the institutional means to resist the violation of their rights.”9 Borrows in fact suggests that the case Calder v the Attorney General of BC, in which Frank Calder lost his case for Aboriginal title in 1973, may have turned out differently had Section 35 been in place at that time. 30. el, “Aboriginal Peoples and the Canadian Charter of Rights and Freedoms: Contradictions and Challenges.” Canadian Women’s Studies 10.2 & 3 (1991): 149-157. An existing aboriginal right cannot be read so as to incorporate the specific manner in which it was regulated before 1982. Rights and freedoms in Canada 1. Section 35 initially consisted of clauses (1) and (2). Download or order a copy of the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights. Section 35 also recognizes that Aboriginal rights are “existing.” The Supreme Court of Canada has stated that this means that any Aboriginal rights that had been extinguished by treaty or other legal processes prior to 1982 no longer existed and therefore are not protected under the Constitution.2 The significance of the term “existing” was further clarified in the case of R. v. Sparrow: Section 35(1) applies to rights in existence when the Constitution Act, 1982 came into effect; it does not revive extinguished rights. Accessed online: http://scc.lexum.org/en/1990/1990scr1-1075/1990scr1-1075.html. The Constitution Act recognizes Indian, Inuit and Métis as all Aboriginal with existing rights, and that recognition has been further defined for each group (as, for instance, for Métis in the decision). It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Copyright © 2009. The Constitution Act, 1982 also contains a schedule of repeals of certain constitu-tional enactments and provides for the renaming of others. One of these demonstrations was the Constitution Express, an action that contemporary activist Arthur Manuel describes as the most effective direct action in Canadian history, as it ultimately changed the constitution.4 It took two years and the raising of concerns before an international audience, including the United Nations and the British Parliament, before the Canadian government finally agreed to include Aboriginal rights in the constitution. PDF Version: 540 Kb. Part I, Canadian Charter of Rights and Freedoms Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: Guarantee of Rights and Freedoms 1. }).