CONTRADICTIONS OF Constitution Act, 1867-1982: Section 35(1)
Located under Part I, Canadian Charter of Rights and Freedom, in Canada’s Constitution Act (1867-1982), the following phrase can be read, “Canada is founded upon principles that recognize the supremacy of God and the rule of law.” Within this section and the subsequent section, Part II, Rights of Aboriginal People in Canada, one can locate the sections pertaining to this specific population group. At first glance, it can be argued that Aboriginal peoples in Canada receive special or distinct rights from those granted to other Canadians. However, given their unique history with Canada, Aboriginal Peoples have a vested interest in preserving their rights to the land. Section 35, under the heading, Rights of Aboriginal People in Canada, does just this. Yet, a question presents itself: how does using a colonial tool created by the colonizer benefit the colonized? One example of a colonial tool that was utilized by the colonizer was the Indian Act, 1867. This act was created to get rid of the Indian problem through forced assimilation and treating Indigenous peoples as inferior beings, as wards of the state (Shaw, 2008). The institutions, namely the church and residential schools, that sanctioned the violence against Indigenous Peoples proved to be fatal for Indigenous systems of being, specifically Indigenous women. The forced removal of children from their homes reduced Indigenous women’s roles in the community to nothingness, both as Indigenous people and women. Both the supremacy of God and the rule of the law legitimized this violence. Does Section 35 also follow the same lineage, as a tool developed by the colonizer to dominate and control Indigenous lands and access to their lands? This paper will outline the contradictions of the Constitution Act, 1867-1982, specifically the inconsistencies of Section 35(1) that deal specifically with Aboriginal right and title. I will argue that this is an extension of Canada’s colonial agenda to control and dominate Aboriginal People’s land and access to land, which in turn further subordinates Aboriginal women. First, I will outline the history of how this section was developed and adopted. Then, I will move into a discussion of Section 35(1), its scope, limitations, and contradictions. Although one might argue that this section is a step to reconcile relations between Aboriginal people and Canada, contrary examination provides evidence that this is another colonial tool to further the colonial agenda.
History of Section 35(1)
Section 35 of the Constitution Act states the following:
(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 Metis people of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” include rights that no 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 (Isaac, 2012, p. 19).
In the late 1970s, the then-Trudeau government began to introduce Constitutional reforms, namely to patriate the Canadian Constitution (Dupras, 1992). At this time, the decision to patriate the Canadian constitution was without consultation from Aboriginal peoples and it was not until 1981 to have discussions with Aboriginal leaders relating to these constitutional reforms soon commenced (Isaac, 2012, p. 19). The decision to include Aboriginal Peoples in the discussions relating to these reforms, however, were not due in part to the diplomacy or tact on behalf of the Canadian government. After vigorous lobbying at national and international levels in 1980, Aboriginal people were able to delay the quiet passing of these reforms and finally have their concerns recognized (Union of British Columbia Indian Chiefs UBCIC, n.d.). Aboriginal People’s concerns over these reforms specifically pertained to their fear that it would violate treaty commitments, damaging other rights through ending federal responsibility entirely (Dupras, 1992; UBCIC, n.d.). The initial constitutional amendments also did not include Section 25, which states that “the Charter would not derogate from Aboriginal or treaty right” (Smith, 2000). By the very action of ignoring Aboriginal People’s concerns only until after their intense lobbying demonstrates the Canadian government continued to see and treat Indigenous Peoples as inferior beings.
In January 1981, after Aboriginal Peoples shared their concerns with respect to treaties, their rights, and federal responsibility with the Canadian government via parliamentary committee, Section 25, 35, and 37 were soon drafted (Isaac, 2012, p. 19; Smith, 2000). After expressing concerns with the parliamentary committee, the original draft of Section 35 included the following, “the Aboriginal and treaty rights of the Aboriginal people are hereby recognized and affirmed” (Smith, 2000). However, after these discussions, these sections were not included in the draft amendment presented at a ministers’ conference later in 1981 (Isaacs, 2012, p. 19). In fact, true to form, the Canadian government excluded Aboriginal leaders from federal-provincial negotiations, which occurred over a period of four-days, wherein concern for Aboriginal rights was never raised (Smith, 2000). The decision to not include these sections that were developed in consultation, albeit after concentrated lobbying on behalf of Aboriginal leaders and excluding them from negotiations, is indicative of the colonizer’s paternalistic perspective of the colonized. Specifically, it highlights differential power relations between the colonizer and the colonized, and continues to see Indigenous people once again as inferior beings.
Eventually, by the time Section 35 was included within these constitutional amendments, the section included a specific reference to existing Aboriginal and treaty rights. This inclusion of the word “existing” was a last minute, long-distance conference call and included only conversations among the Premiers (Smith, 2000). The last minute, long-distance call underlines these differential power relations. Alberta’s Premier Lougheed expressed his concern over his suggestion to include the word existing “would create new aboriginal rights that were not previously recognized in law” [emphasis in original] (Smith, 2000). On November 18, the final resolution was introduced into parliament, was passed by the Commons on December 2, and then passed by the Senate on December 1981 (Smith, 2000). Finally, after being transmitted to the Parliament of the United Kingdom for passage, the amendments came into effect on April 15, 1982 (Smith, 2000).
Interpretation of Section 35
Thomas Isaac (2012), in Aboriginal Law: Commentary and Analysis, illustrates, on one hand, that Section 35 “had the effect of dramatically shifting Canada’s legal and constitutional regime regarding Aboriginal peoples, how their Aboriginal and treaty rights are to be protected, and the effect of such rights on Canadian society generally” (p. 16). However, on the other hand, Melvin H. Smith (2000) and Christina Yui Iwase (2012), respectively, describe it as an “empty box” (n.p.) and “confines Aboriginal rights claims and ultimately subordinate Aboriginal peoples to Crown Sovereignty” (p. 99). Further, Indigenous feminist Lee Maracle and lawyer and judge Mary-Ellen Turpel both agree that Section 35 rather “reinforces colonialism by recognized Canadian law as supreme” and that it is an “acknowledgement of colonial power as the overarching, supreme law” (Hanson, n.d.). This section will take a closer examination into the way this section is interpreted. This examination will show how these interpretations developed from case law is subjective which suggest a differential in power relations by having to rely on Canadian law and its interpretations. The specific cases that will be referenced include Delgamuukw v. British Columbia,  3 S.C.R. 1010, R. v. Van der Peet,  2 S.C.R. 507, R. v. Guerin  2 S.C.R. 335, and R. v. Sparrow,  1 S.C.R. 1075
Aboriginal rights and title, as developed through the interpretation of Section 35, is rather subjective and dependent on the court’s interpretation of such definitions. Again, the colonized are forced to rely on colonial powers and colonial tools in order to assert rights and title which could be seen as counteractive to Indigenous sovereignty. In relation to Canada’s criminal justice system, in Staring through the Blues Eyes of Justice, Sharon McIvor states the following,
How can we, as aboriginal people, be expected to see the forest for the trees, when patriarchy and paternalism have been planted around our communities like a fence, and implanted in our mindset so that we no longer see that we are becoming the colonizer. After all, when we agree to enforce the settlers laws on our own people, in our own communities, how does that make us any different from a brown colonizer. (p. 166).
These are powerful words are in reference to Canada’s criminal justice system. It can be counter-argued that regardless of where the justice arises from, whether it is through Section 35 interpretations or criminal justice, it is all one in the same. It is the colonizer that creates and defines justice, and how it will be applied. This is where one encounters the first issue with respect to relying on colonial interpretations of Aboriginal right and title.
A working definition for Aboriginal right and title are both derived out of the court’s interpretation of same concepts. For instance, in R. v. Van der Peet, Aboriginal rights are defined as “those rights held by Aboriginal peoples that relate to the activities that are an element of a practice, custom, or tradition integral to the distinctive culture of the Aboriginal group claiming such rights” (Isaac, 2012, p. 24). This definition, however, continues on to highlight that Aboriginal rights pertaining to Section 35 will “have not otherwise been extinguished prior to April 17, 1982 or by treaty” (para. 46). The inclusion the word existing to Section 35 becomes evidentially clearer with this definition of Aboriginal rights. Further to this, the definition of Aboriginal title arises out of the same section, albeit from R. v. Delgamuukw. In R. v. Delgamuukw, the definition for Aboriginal title is asserted as “a subcategory of Aboriginal rights and encompasses the right to exclusive use and occupation of the land for a variety of purposes, although those protected uses must not be irreconcilable with the nature of the Aboriginal group’s attachment to such land” (para. 159). By relying on a court’s interpretation to develop the definition of Aboriginal right and its subcategory, Aboriginal title, it points out the fact that the colonizers are still exercising colonial control over their colonized subjects. It suggests that the colonizer outline both the scope and the limitations of such definitions, which were similarly outlined above in reference to the history of Section 35. It can be argued that if we rely on individual nations’ definition of Aboriginal right and title, then the legal issues might become too complicated to manage. Thus, a pan-Aboriginal approach to such definitions, including scope and limitations, is more appropriate. However, this highlights the agenda of the colonizers, to control and dominate the colonized subjects’ land and access to land under the colonizer’s terms.
Delgamuukw v. British Columbia,  3 S.C.R. 1010
As described above, Delgamuukw v. British Columbia (hereinafter referred to as Delgamuukw) provides the courts with a definition, including its scope and limitations, of Aboriginal title specific to Section 35(1). Aboriginal title has been described as a unique or a sui generis interest. Aboriginal title is described in this manner for three reasons. First, Aboriginal title is non-transferable to anyone but the Crown (para. 68). Second, Aboriginal title is held collectively (para. 68). The third and final reason that Aboriginal title is a unique or a sui generis interest is due to the source results from occupancy before Crown asserted sovereignty. In the decision, it states, “the time for the identification of aboriginal title is the time at which the Crown asserted sovereignty over the land” (p. 1017). Incongruously, the very aspect of Aboriginal title arises out of Crown sovereignty. If it were not for the colonizers’ assertion of sovereignty, then it suggests that the interest of Aboriginal title would not exist. Similar to Frantz Fanon’s (1965) argument in Wretched of the Earth, the colonized does not exist without the colonizer. Justified through enactment of the constitution, the colonizer asserts their title is based on their assertion of sovereignty and that the colonized subject’s title did not exist prior to it. Again, this highlights the agenda of the colonizers, to control and dominate the colonized subjects’ land and access to land under their own terms.
Moreover, not only does the sui generis interest arise out of Crown asserting sovereignty, but Crown can also infringe on Aboriginal title. As outlined in the same decision, Aboriginal title, like other Aboriginal rights, is not absolute (p. 1021). Grounds for infringement on Aboriginal title include, “…if the infringement (1) furthers a compelling and substantive legislative objective and (2) is consistent with the special fiduciary relationship between the Crown and the aboriginal peoples” (p. 1021). Such examples for infringement include development of agriculture, forestry, mining and hydroelectric power (p. 1021). This is disconcerting for Indigenous nations since much of their lands occupy areas that are excessively developed for economic reasons. Once more, the colonizer’s interests and access to land are prioritized above the colonized, Aboriginal’s interests and access.
R. v. Guerin  2 S.C.R. 335 & R. v. Sparrow,  1 S.C.R. 1075
The two cases, R. v. Guerin and R. v. Sparrow, (hereinafter referred to as Guerin and Sparrow, respectively), will be discussed in this section. Together, these two cases provide the framework for determining the fiduciary relationship within the scope and limitations of the Crown-Aboriginal relationship. The former is also important in that it decided Aboriginal rights are pre-existing rights not derived from executive actions or legislative stipulations, and that Aboriginal rights were considered independent legal interests. Thus, there would be a legal duty to protect them (Iwase, 2009, p. 100). In Guerin, the decision set apart the sui generis Crown-Aboriginal as fiduciary (Iwase, 2012). The majority decision in Guerin highlighted that this relationship was derived out of the inherent Aboriginal title, while the minority argued that this relationship was “based on the surrender of the land by the Band to the Crown” (Iwase, 2012, p. 99). Yet, as described above, Aboriginal title is both derived and infringed upon through Crown sovereignty. This begs the question, how can a relationship that is supposed to be based upon a fiduciary relationship be allowed to infringe on the same right that it is derived out of? True to form, this demonstrates the differential power relations that exist within the Crown-Aboriginal fiduciary relationship. One might argue that these differences in power relations are expected within fiduciary relationships. Yet, in Fiduciary Relationship as Contemporary Colonialism, Christian Yui Iwase (2012) describes the relationship between these cases eloquently. She writes, “these two decisions confine aboriginal rights claims and ultimately subordinate Aboriginal peoples to Crown sovereignty” (p. 99) This difference in power relations is counteractive to what the legal tools were intended to do – to enhance Aboriginal rights. This highlights the colonial agenda: exercising dominance and control over Indigenous lands.
Further, if these the fiduciary relationship is derived out of Aboriginal title, either inherent or surrendered, which is derived out of Crown asserting sovereignty, then from that moment forward, Aboriginal sovereignty must be ignored for all purposes and intent in keeping within this fiduciary relationship. Iwase also raises concerns with respect to the Crown-Aboriginal fiduciary relationship and specifically, how it is left unspecified. Referencing these cases, Iwase (2012) outlines that the nature and scope of the Crown-Aboriginal fiduciary relationship were left undefined as both being “axiomatic and embryonic” (p. 100). This relationship is then open to more interpretation but through the lens of the colonizer and within the means of its colonial tools, the courts.
The Sparrow case added more substance to the Crown-Aboriginal fiduciary relationship (Iwase, 2009). Sparrow also expressly stated the Crown-Aboriginal relations as fiduciary (R. v. Sparrow, 1990). Iwase (2012) describes that the fiduciary relationship is a “legal relationship generally defined as one in which a party has rights and powers that he or she must exercise for the benefit of another person and more importantly the fiduciary is not allowed himself to benefit in any way from the position he holds” (p. 101). Given that the Crown must act with economic interests of other Canadians, including Canada, in mind, then it suggests that they are not acting within the limitations of a fiduciary relationship. In fact, it highlights that the Crown is acting in direct conflict within the limitations of the fiduciary relationship. Additionally, Iwase (2012) demonstrates the idea of the Crown-Aboriginal fiduciary relationship is rooted in the concept of Aboriginal title. Thus, then this relationship arises out of the colonizer’s interest in controlling and dominating Indigenous access to these lands.
Controlling and Dominating Indigenous Lands
Since settlers arrived in Canada, their goal has been to “Get rid of the Indian Problem” (Shaw, 2008). Through analysis of the tools, including Section 35, that the colonizer constructs and determines its scope and limitations, it reveals that the Crown is interested in getting rid of this problem through controlling and dominating Indigenous lands. In the chapter entitled “Violences of Sovereignty,” Karena Shaw (2008) writes, “Once Indigenous peoples were no longer useful to the colonists, they were also in the way: colonists wanted access to their land” (p. 51). The access to their land is developed through Crown’s assertion of sovereignty over Indigenous lands, and by infringing on Aboriginal rights and title to land through Section 35. In addition to this, Shaw also highlights the legal paradox created via the Indian Act, which created Indians as third class citizens by first describing them as non-citizens. How this legal paradox is connected to Section 35 and Crown’s sovereignty is emphasized when Shaw (2008) writes, “the legal paradox is an expression of the practice of sovereignty: the ‘Indians’ must be defined as different in order to establish the identity and sovereignty of Canada” (53). Crown’s vested interest to control and dominate Indigenous lands and bodies has been clear with the enactment of the Indian Act. This vested interest extends into Section 35 when Crown’s sovereignty arises out of the very definition of Aboriginal right and title. From the perspective of the colonizer, the colonized subject’s sovereignty comes into existence once colonizer asserts sovereignty, but the Crown can still infringe on the colonized subject’s rights and title. The colonial agenda, through Section 35, to dominate and control Indigenous lands and their access Indigenous lands is dependent on the Crown’s sovereignty, which nullifies Indigenous sovereignty.
In Home/Land, Turpel (1991) stresses the power of the law over Indigenous peoples. Turpel writes, “The law constructs authoritative visions of a social and political world, sanctioning its particular images of that reality while effectively silencing other (namely aboriginal) visions” (p. 336) As described in the history of Section 35 above, even after Indigenous leaders met with the parliamentary committee to offer input, it was eventually ignored. They were also excluded from the negotiations of the constitutional reform. Trupel highlights that silencing the Indigenous voice serves to advance the colonial agenda, to dominate and control Indigenous lands and bodies. Premiere Lougheed suggestion to also include the word existing as a last-minute decision also highlights the intentions to silence Indigenous voices even further, and by limiting the extent of Section 35 to only address rights existing at the time the Constitution Act, 1982 received assent.
In addition to this, Iwase (2012) argues that the once the Crown-Aboriginal fiduciary relation was created, “it can also be said that Aboriginal sovereignty was cancelled” (p. 102). The nulling of Aboriginal sovereignty is also supported by the word existing in this section. In fact, at the conference that commenced in 1983 between the Canadian government and Aboriginal leaders, the topic of self-government was placed on the agenda but it never was addressed (Smith, 2000). Even though Loughheed states that existing was not meant to maintain the status quo, in light of these facts and the political context of Indigenous peoples as colonized subjects, the word existing suggest that the government has a committed interest in ensuring that Indigenous peoples never attain self-government. By the very fact that Crown sovereignty both grants and infringes upon Aboriginal rights and title, it also suggests that the government control the terms on which these rights are founded upon. Thus, the colonizer has (a deliberate) interest and concern in maintaining the status quo and in asserting sovereignty rooted in Aboriginal title to eventually infringe on these rights for the benefit (namely economic) of Canadians, or more correctly, Canada.
Controlling and Dominating Indigenous bodies
In Towards a new research agenda?, Alleen Moreton-Robinson (2006) argues that the discussion of sovereignty does not include Indigenous subjects. The context and interpretation of Section 35(1) is indicative of this silencing of Indigenous voices, while at the same revoking Indigenous sovereignty. When Indigenous voices are silenced, it sends the message that they do not matter and that only certain issues will be heard. For example, the human rights issue of the high rate of missing and murdered Indigenous women in Canada is ignored by the Federal government, even after all Premiers called for a national inquiry (Fekete, De Souza, Woods & Thomson, 2013). By ignoring this issues it exemplifies that the government would like violence against Indigenous people to continue. Moreton-Robinson (2006) also argues that “rights should not be understood as the establishment of legitimacy but rather the method by with subjugation is carried out” (p. 390). The establishment of Section 35(1) and the definition of Aboriginal rights arising out of assertion of Crown sovereignty, similar to Iwase’s argument, highlight the nullifying of Indigenous sovereignty. It subjugates Indigenous Peoples by denying their right to sovereignty and this subjugation of Indigenous people as a whole, pushes Indigenous women and their issues to the margins even further. Silencing Indigenous voices is colonial violence and ignoring the issue of missing and murdered Indigenous women is colonial violence.
The power to define and control Aboriginal rights and title is also the power to define and control Indigenous issues. The silencing of Indigenous voices and the ignoring of Indigenous issues speaks to the fact that it prioritizes possession of their land more important than anything else. This is traditional and neo-colonialism, the controlling and dominating of Indigenous lands. The government has a stake in controlling and dominating Indigenous lands. The government also has a stake in the ability to infringe on Aboriginal rights and title. Section 35(1) is a colonial tool that was developed by the colonizer to further dominate and control Indigenous lands, which further subjugates Indigenous people as a whole and pushes Indigenous women and their issues to the margins of society. Andrea Smith (2008) writes, “the goal of colonialism is not just to kill colonized people, but also to destroy their sense of being people” (p. 312). Through the further subjugation of Indigenous women by ignoring the issues that faces them, it highlights that Canada is choosing to ignore the violence that Indigenous people are facing. The marginalization of Indigenous women in Canadian society through the high rate of missing and murdered Indigenous women demonstrates Canada is complicit in this violence. While the goal of Section 35 was meant to enhance Aboriginal rights, it rather enhances Canada’s colonial agenda, to control and dominate Indigenous lands.
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