Constitutional Rights
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. The section does not define the term "aboriginal rights" or provide a closed list; some examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land (cf. aborginal title) and the right to enforcement of treaties. There remains a debate over whether the right to aboriginal self-government is included within section 35. As of 2006 [update] the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.Text
The provision provides that:
| “ | 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. (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. (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. |
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