In 1980, then Canadian Prime Minister Pierre Trudeau announced his intention to repatriate the Canadian Constitution from Britain, complete with a Charter of Rights and an amending formula. Two years of intensive negotiations between the federal government and the provinces followed. One contentious issue threatened to stall the negotiations a number of times: the inclusion of Section 35. This section and its four subsections provided for the recognition of existing aboriginal and treaty rights, defined who the aboriginal people of Canada were, and recognized existing treaty rights and those that may in the future be obtained vis-à-vis land claims, while indicating that treaty rights were guaranteed equally to both sexes.
Originally, the British North America Act of 1867 listed Indians under Section 91 (federal responsibility), subsection 24, "Indians and lands reserved for Indians." Section 91(24) did not define what "Indian" meant or what the federal responsibilities to Indians were. The term "Indian" took on legal significance under the auspices of the Indian Act of 1876, which legally defined who an Indian was and, in particular, how to gradually do away with that status until Indians no longer existed, legislatively, in Canada. The Indian Act, which is still the prevailing piece of legislation guiding the federal government in its day-to-day interactions with Indians, did not legally reconcile the unique cultural status of Canada's Métis and Inuit populations, nor did it accept nations such as the Anishinaabes, the Haudenosaunees, or the Niitsitapis, to name a few, as distinct cultural groups. This failure to accept the unique political statuses of different groups of Indians resulted in the government's ignoring the Inuit or Métis and therefore renouncing any responsibility for their well-being. This changed in 1939 with a Supreme Court decision that interpreted the federal government's power to make laws affecting "Indians, and Lands reserved for the Indians" as extending to the Inuit. The Métis did not achieve similar recognition.
Prior to the Constitutional discussions of the late 1970s, the aboriginal population in Canada began aggressively to object to the continued use of the term "Indian." Historically utilized by Europeans and the British to identify North American indigenous populations, many "Indian"' organizations of the late 1970s changed their names to include the word "Native" or the phrase "First Nation." Many aboriginal leaders also began to describe their ancestors as founding members of Canada, perhaps a "third tier" of confederation. The political influence of aboriginal leaders of the 1970s led federal officials in 1978 to invite the National Indian Brotherhood, the Native Council of Canada, and the Inuit Committee on National Issues to participate in the constitutional discussions. Not satisfied to watch from the periphery, eleven additional aboriginal organizations initiated an influential lobbying effort, the goal being to secure, among other things, the constitutional recognition of aboriginal people and their rights.
Aboriginal leaders sought distinct status for these groups within the proposed Canadian Constitution. Section 35 was the product of bilateral discussions between the federal government and the aboriginal leaders that excluded provincial involvement. Section 35 contains four subsections. Section 35(1) recognizes and affirms existing aboriginal rights arising from both common law and treaties. Thus this section grants constitutional protection of aboriginal rights. Section 35(2) recognizes aboriginal people as consisting of the "Indians, Inuit, and Métis" peoples of Canada. Section 35(3) specifically includes modern land claim agreements in treaty rights. Section 35(4) guarantees that the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. In theory, Section 35(2) provides the description of Canada's aboriginal people, permitting a greater definition and understanding of subsections (1), (2), and (4). However, the ambiguous nature of the definition often means that the Canadian court system is employed to provide clarification, an expensive and time-consuming process.
For instance, in 1993, a Métis father and his son, Steve and Roddy Powley, were charged with hunting moose without a license and unlawful possession of moose meat, contrary to Ontario's Game and Fish Act. A two-week trial in 1998 resulted in the judge's determining that the Métis community at Sault Ste. Marie had an existing aboriginal right to hunt, a decision that was upheld by the Supreme Court of Canada. The case took nearly one decade to complete. In the end, Métis people were recognized as aboriginal people according to Section 35(2) and as possessing aboriginal rights according to Section 35(1).
Yale D. Belanger
Belanger, Yale, and David Newhouse. 2004. "Emerging from the Shadows: The Pursuit of Aboriginal Self-Government to Promote Aboriginal Well-Being." Canadian Journal of Native Studies 24, no. 1: 129–222.; Walkem, Ardith, and Halie Bruce, eds. 2003. Box of Treasures or Empty Box: Twenty Years of Section 35. Penticton, BC: Theytus Books.