The architecture

Section 35(1) of the Constitution Act 1982 recognises and affirms "the existing aboriginal and treaty rights of the aboriginal peoples of Canada." Section 35 sits outside the Charter — it is not subject to s.1 or s.33.

Three categories of Indigenous peoples are recognised: First Nations, Inuit, and Métis.

The major case sequence

Calder (1973) — recognises Aboriginal title at common law independent of the Royal Proclamation.
Guerin (1984) — fiduciary obligation of the Crown.
Sparrow (1990) — s.35 framework: existing rights, infringement, justification.
Van der Peet (1996) — integral-to-distinctive-culture test for rights.
Delgamuukw (1997) — content and proof of title; oral histories.
Powley (2003) — Métis rights with effective-control timing.
Haida Nation (2004) — duty to consult before proof of right.
Mikisew Cree (2005) — duty applies to treaty rights.
Tsilhqot''in (2014) — first declaration of title.
Daniels (2016) — Métis and non-status Indians within s.91(24).
Mikisew Cree (2018) — duty does not apply to legislative process.

Aboriginal rights

The Van der Peet test. To qualify as an Aboriginal right, a practice, custom or tradition must be:

Integral to the distinctive culture of the group.
Pre-existing the contact with European societies.

The court considers the perspective of Aboriginal peoples themselves and characterises the right at an appropriate level of generality.

For Métis rights, R v Powley modifies the timing element to effective European control rather than first contact.

Aboriginal title

A sui generis interest in land arising from indigenous occupation prior to European assertion of sovereignty.

Content (Delgamuukw):

Right to exclusive use and occupation for a variety of purposes.
Collective — held by the community.
Alienable only to the Crown.
Subject to an inherent limit — uses must not be irreconcilable with the group''s attachment to the land.

Proof:

Occupation prior to assertion of European sovereignty.
Continuity between present and pre-sovereignty occupation.
Exclusivity at sovereignty.

Tsilhqot''in adopted a territorial approach to occupation.

Sparrow infringement and justification

If a prima facie infringement is established:

Valid legislative objective (e.g. conservation; public-interest objectives consistent with the special trust relationship).
Honour of the Crown — including priority for Aboriginal rights, minimal impairment, consultation, possibly compensation.

Treaty rights

Treaties between the Crown and Indigenous nations are interpreted liberally, in favour of Indigenous interpretations. Ambiguities are resolved against the Crown. Oral promises form part of the treaty.

R v Marshall (1999) recognised Mi''kmaq treaty rights to fish for trade up to a moderate livelihood. Modern treaties (Nisga''a Final Agreement 2000) implement comprehensive arrangements.

Duty to consult and accommodate

Triggered when the Crown has actual or constructive knowledge of a potential right and contemplates conduct that may adversely affect it (Haida Nation).

The depth is proportionate to the strength of the case for the right and the seriousness of the potential adverse effect.

The duty is the Crown''s — procedural aspects may be delegated, but the constitutional obligation cannot.

Where Tsilhqot''in changes things

Once title is established, the Crown''s fiduciary obligation generally requires consent. Failing consent, infringement is justifiable only if the Crown demonstrates a compelling and substantial public objective and meets the proportionality demands of the fiduciary relationship.

This is a stronger protection than Sparrow''s general consultation-based justification.

UNDRIP and FPIC

The United Nations Declaration on the Rights of Indigenous Peoples was adopted by Canada in 2010 and implemented federally in 2021 (UNDRIP Act). British Columbia has its own DRIPA (2019).

Both statutes commit governments to align legislation with UNDRIP. FPIC (free, prior and informed consent) features prominently. The exact relationship between FPIC and the Sparrow/Haida architecture is not yet fully resolved.

Indigenous legal orders

The recognition and enforcement of Indigenous legal orders alongside common law and civil law is a growing concern (Borrows, Friedland, Napoleon). Modern self-government agreements implement Indigenous legal authorities in specific domains.

Where the field is going

Restitution (the Robinson treaties annuity litigation, Restoule), self-government, FPIC implementation, and the development of Indigenous legal orders are the current frontier. The constitutional architecture is being filled in by negotiation, legislation, and litigation simultaneously.

A complete analytical sequence

For a rights claim:

Identify the right (rights, title, or treaty).
Establish the right''s existence on the relevant test (Van der Peet, Delgamuukw, Powley).
Establish prima facie infringement (Sparrow Step 1).
The Crown bears the burden of justification (Sparrow Step 2).
Address consultation and accommodation (Haida).
For title cases, consider the Tsilhqot''in fiduciary requirement.
Identify the appropriate remedy.