Some Perspectives on the Origin and Meaning of Section 35 of the Constitution Act, 1982

Of the several amendments that have been made to the Canadian Constitution over the years that directly affect provincial interests, all but one have been achieved as a result of extensive negotiations between the federal and provincial governments. The one exception is Section 35 of the Constitution Act, 1982, which figures so prominently in current treaty-making efforts in British Columbia.

From 1968 to 1992 (except for 1972 to 1975), efforts at constitutional reform in Canada were an almost unremitting process. First, the Victoria Charter round (1996 to 1971); then, the extensive federal-provincial negotiations (October 1976 to 1978); Bill C.60 (1978); another round (November 1978 to February 1979); the Patriation round (1980 to 1981); the Aboriginal Conferences (1983 to 1987); Meech Lake (1987); and the Charlottetown Accord (1992).

The list of subject-matters under discussion at each of these sets of negotiations was lengthy and, in each case, the process involved a great many meetings among federal and provincial officials, ministers and first ministers. For the purposes of this paper, the important point is that the subject of aboriginal rights was not even raised-much less negotiated-in any of the federal-provincial negotiations held over the years until very late in the 1981 Patriation process.

Section 35, as enacted in 1982, read as follows:
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.

As this paper will show, Section 35 (minus the word existing) had been the product of bilateral discussions between the federal government and the aboriginal leadership for many months but the provinces had had no direct involvement in that process. I am suggesting that the proper meaning to be given the Section 35 ought to be conditioned, if not governed, by those circumstances and by the meaning of those words within the contemplation of the parties. The thesis of this analysis is that the expansive meaning given by treaty proponents to Section 35 (as amended in 1983) is not supported either by the circumstances of its passage or its plain meaning.