LMF P&S and IJI S. 91(24) and s.

35 ABORIGINAL

Table of Contents
1. FEDERAL JURISDICTION .................................................................................................... 1
2. PROVINCIAL JURISDICTION ............................................................................................. 2
3. IJI ................................................................................................................................................ 3
3.1 SECTION 35 FRAMEWORK: THE SPARROW TEST................................................................... 4
4. CASES ........................................................................................................................................ 5
4.1 FEDERAL ................................................................................................................................ 5
R v Sparrow, 1990 SCC (Sparrow test, s. 35(1) rights are not absolute, can be limited if in
furtherance of a valid fed objective) ....................................................................................... 5
Daniels v Canada, 2016 SCC (s. 91(24) Mtis & FN w/o Indian Act status are Indians)
................................................................................................................................................ 9
4.2 PROVINCIAL......................................................................................................................... 10
Delgamuukw v British Columbia, 1997 SCC (Theres always a duty to consult, & it must be
in good faith; prov can regulate but not extinguish aboriginal rights) ................................ 10
Tsilhqotin Nation v British Columbia, 2014 SCC (Use s. 35 not IJI; to establish Aboriginal
title, group must prove that its possession was 1) sufficient, 2) continuous, and 3) exclusive)
.............................................................................................................................................. 12

1. Federal Jurisdiction
S. 91(24): Parliament has jurisdiction over Indians and lands reserved for Indians
Aboriginal rights, treaties, land

Definition of Aboriginal People in s. 35 of the Constitution Act, 1982

s. 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
Mtis peoples of Canada.

Section 35 of the Constitution Act, 1982 provides constitutional protection for

Aboriginal Rights (hunting, fishing, etc), Aboriginal Title (relationship to the land),
and Treaty Rights (rights negotiated through treaties).
All of these rights are constitutionally guaranteed, like our charter rights. S39 does
not contain a limitation clause expressly (unlike S1 of the charter), but the court has
read limitations into aboriginal rights and title.
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

We state the existence of the S35 test for infringement (of aboriginal rights), but we
will not apply the test.

Who are Indians for the purposes of the section?

Includes First Nations people with status under the Indian Act
Reference whether "Indians" includes "Eskimo" (SCC/1939) 91(24) extends
federal jurisdiction to include Inuit people
Daniels v. Canada (SCC/2016)): Mtis people and First Nations people without
Indian Act status people are Indians within the meaning of the Constitution Act,
1867, s 91(24 ).

2. Provincial Jurisdiction
Provinces cannot pass laws that are in pith and substance about Indians, or Lands
reserved for Indians. BUT provinces can pass laws that are in pith and substance
within provincial jurisdiction and have incidental effects on Indians, or lands
reserved for Indians.
o Historically, IJI protected core of Indianness from application of valid
provincial laws
o But the feds passed s. 88, which allows provincial laws to be applicable to
aboriginals.

A provincial law cannot in pith and substance be about 91(24) if it is then it is

ultra vires the province. A provincial law that says Indians cannot hunt, which
singles out aboriginal peoples (R v Sutherland, 1980 SCC), puts its dominant purpose
within 91(24), so ultra vires.
But province can pass laws about property and civil rights hunting laws, for
example, which says no person can hunt. Its about hunting, well within civil
rights. This would be valid.
o This would have incidental effects on aboriginal people, but those
effects would not change the intra vires status of the provincial law.
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

o Examples:
Indians cant hunt = 91(24) = ultra vires invalid
people cant hunt = 92(13) = intra vires valid (this is a law of
general application)
See more info under IJI.

3. IJI
In Tsilhqotin Nation v. British Columbia the SCC said IJI shouldnt be used when
we are talking about Aboriginal rights and Aboriginal title. Instead, we should
use section 35 of the Indian Act for provincial laws that interfere with Aboriginal
rights and Aboriginal title. Approach it as a question of rights, not a question of title.
Limited scope of IJI.
o Provincial legislation that has this kind of effect on s. 91(24) legislation
must now be justified pursuant to the Sparrow test developed for
allowing infringement of Aboriginal rights under s. 35 of the
Constitution Act, 1982. -> Look at 3.1 for Sparrow Test.
o Its more likely that the SCC is limiting when were using IJI by
stripping down what indianeness means. Wed still use it for 91(24),
but not if the provincial law is touching on 1) aboriginal rights, 2)
aboriginal title, or 3) treaty rights.
o Look under cases for more info.

If we were to look at IJI:

If the provincial law is valid, we must move onto IJI (cores protected from
interference).
92(24) has a core, which is indianness, and it has historically received
interjurisdictional immunity. This means that laws inapplicable.
Indian status, band council, reserve land, aboriginal rights, aboriginal title are at the
core of 91(24).
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

The core of 91(24) is no longer aboriginal rights, aboriginal title, or treaty rights.
So its unlikely that any law is going to trench the core of s91(24).
E.g. the law says people cant hunt. Its a law of general application, so its valid. But
aboriginal rights to hunt are part of aboriginal rights. So its inapplicable under IJI.
This creates a policy problem because provinces cant regulate any things that might
affect aboriginals. The feds responded to this problem by passing S88.
88. Subject to the terms of any treaty and any other Act of Parliament, all laws
of general application from time to time in force in any province are applicable
to and in respect of Indians in the province, except to the extent that those laws
are inconsistent with this Act or the First Nations Fiscal Management Act, or
with any order, rule, regulation or law of a band made under those Acts, and
except to the extent that those provincial laws make provision for any matter for
which provision is made by or under those Acts.
If its a provincial law of general application, it will apply to indian people.
Essentially, the feds are taking any provincial law and passing it through S88. In
effect S88 is turning provincial laws into federal laws, in order for them to apply.
o S88 is a way to get valid laws of generally applicability to pass the IJI test.
o Exceptions: You cant use S88 if the law applies to a treaty.
o You likely cant use S88 to invigorate a provincial law that touches on
aboriginal land or reserves. It seems only to apply to peoples.

As a result of Tsilhqotin Nation v. British Columbia , we also dont need s. 88

anymore.
o Valid provincial laws of general application will now apply to things like
aboriginal rights of their own force. They do not need to go through s88
anymore, because those things are no longer at the core of indianness.

3.1 Section 35 Framework: The Sparrow Test

Legislation affecting the exercise of aboriginal rights will be valid if it meets a test of
justification which arises from the fiduciary relationship; there is nothing in "recognized
and affirmed" which makes such rights absolute.
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

The Sparrow Test Test for the application of section 35(1) of the Constitution Act,
1982. Interference with Aboriginal or Treaty Rights Aboriginal Rights. Look at Sparrow
under Cases for guidance on how to do the test (thats the full test; below is what we need
to know for the exam).
1. Is the limit imposed by the legislation unreasonable?
2. Does the legislation impose a hardship?
3. Does the legislation deny the aboriginal rights holders their preferred means of
exercising their rights?

What existing means under S 35:

o It means those rights existing in 1982; Rights extinguished prior to 1982 are
not revived by S 35; But those rights that are existing and that havent been
extinguished are not limited by regulations; aboriginal practice, custom and
tradition are protected in its unregulated form by S 35
What extinguished means under S 35:
o Only extinguished if there was a clear and plain intention to extinguish
expressed by the sovereign.

4. CASES

4.1 Federal

R v Sparrow, 1990 SCC (Sparrow test, s. 35(1) rights are not absolute,
can be limited if in furtherance of a valid fed objective)
Facts: Sparrow was charged under the Fisheries Act (federal) for fishing with a drift net
that was longer than was permitted with his Indian fishing license. Sparrow admitted the
facts, but claimed that he had an existing aboriginal right to fish and thus the Act is
inconsistent with 35(1) of the Constitution Act, 1982 and invalid. He was unsuccessful in
the lower courts which he appealed to the Supreme Court.
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

Issue: Are s. 35(1) rights absolute?

Holding: SCC held s. 35(1) rights were not absolute could be limited/ restricted by the
Crown but only if restriction was in furtherance of a valid federal objective AND in
keeping with the honor of the Crown. SCC creates framework and send the test back to
be re-tried.
Rule: Legislation affecting the exercise of aboriginal rights will be valid if it meets a test
of justification which arises from the fiduciary relationship; there is nothing in
"recognized and affirmed" which makes such rights absolute.
Section 35 Framework: The Sparrow Test Four-part test for the application of
section 35(1) of the Constitution Act, 1982.
1. Claimant must demonstrate that he or she was acting pursuant to a right
protected by section 35;
o Onus is on the claimant to prove that she had a right
o Proof of a protected Indigenous right is governed either by the terms of a
treaty or in accordance with the test elaborated in Van der Peet. Van der Peet
decided that the determination of whether there is a protected Indigenous right
involves two elements.
The first is to identify precisely the nature of the claim being
made. The court will look to the nature of the particular activities
that were being engaged in by the Indigenous claimant, as well as
the nature of the impugned government regulation, and the nature
of the custom or tradition that is being relied on to establish an
Indigenous right. It is also essential to take into account the
perspective of the Indigenous people claiming the right.
The second element in the determination of whether the claim
qualifies as a protected Indigenous right is whether it is based on a
practice, custom, or tradition integral to the distinctive culture of
the aboriginal group claiming the right. The relevant period of time
for determining whether the activity or practice in question was
integral to the distinctive culture is generally prior to contact
with Europeans.
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

2. The right in question must be an existing right, which the Court in

Sparrow defined as a right that had not been extinguished by Parliament
prior to 1982;
o Can the government extinguish aboriginal rights unilaterally?
o Pre 1982, the feds can extinguish rights unilaterally if they if expressed clear
and plain intention to extinguish prior to 1982 it has been extinguished
o Analysis of clear and plain intention is strictly interpreted --> high threshold
o Post 1982, there cannot be unilateral extinguishment. It is not enough for feds
to express clear and plain intention to extinguish
o What is sufficient for extinguishment?
Crowns intent to extinguish the right must be clear and plain;
intention simply to regulate or control the exercise of the right is not
sufficient.
3. There must be an infringement of the protected Indigenous right (onus on
claimant).
4. If there has been an infringement, it must be determined whether the
infringement can be justified (onus on the Crown).

Even the rights that are protected by s. 35(1) are not absolute; government can regulate
the right as long as it is in keeping with S 35. This is similar to the purpose of s. 1 of the
Charter. Any regulation of that right is an infringement, but can be limited or justified in
the following way:
If aboriginal right still exists, but is regulated, does that regulation prima facie interfere
with the aboriginal right?
Onus on claimant of aboriginal right
Is the limit unreasonable/does it impose undue hardship?
Must take account of aboriginal perspectives.
Look at both the purpose and the effects of the legislation
If a regulation prima facie interferes with aboriginal right, can this be justified?
Onus on the Crown
Valid legislative objective?
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

If yes, does the regulation reflect fiduciary relationship? There is a

fiduciary duty on the part of the Crown. Relationship is trust-like
rather than adversarial; large and liberal interpretive approach to
aboriginal and treaty rights

What existing means under S 35:

o It means those rights existing in 1982; Rights extinguished prior to 1982 are
not revived by S 35; But those rights that are existing and that havent been
extinguished are not limited by regulations; aboriginal practice, custom and
tradition are protected in its unregulated form by S 35
What extinguished means under S 35:
o Only extinguished if there was a clear and plain intention to extinguish
expressed by the sovereign

Reasoning: The SCC held that Sparrow was exercising an "inherent" Aboriginal right
that existed before the provincial legislation and that was guaranteed and protected by
section 35 of the Constitution Act, 1982. They interpreted each of the words of section
35(1) (see rules for interpretation).
Based on historical records of the Musqueam fishing practices over the centuries and
into colonial time, the Court found that the band had a clear right to fish for food.
Extinguishment of rights can occur only through an act that showed "clear and plain
intention" on the government to deny those rights. Here, the Court found that the
Crown was not able to prove that the right to fish for food were extinguished prior to
1982. The licensing scheme was merely a means of regulating the fisheries, not
removing the underlying right, and no historical government policy towards fishing
rights amounted to a clear intention to extinguish.
The words "recognized and affirmed" incorporate the government's fiduciary duty to
the Aboriginal people, which requires it to exercise restraint when applying its
powers in interference with Aboriginal rights. It further suggests that Aboriginal
rights are not absolute and can be encroached upon given sufficient reason.
Notes:
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

The SCC set out a framework and principles for deciding an existing aboriginal and
treaty right and whether or not it has been extinguished. They send the case back to
be re-tried using the framework they set out.
Only Feds can give treaty rights and only Feds can extinguish aboriginal and treaty
rights
Aboriginal Rights are rights not circumscribed in a treaty; they are inherent; the
cultural and economic practices of the aboriginal people and help form their identity
Aboriginal rights are entrenched and government cant interfere with them unless
they have some constitutional basis (i.e. pass oakes test)
Constitution doesnt grant aboriginal rights but recognizes existing rights and affirms
them
Source of aboriginal rights: inherent --> they were on the land first

Daniels v Canada, 2016 SCC (s. 91(24) Mtis & FN w/o Indian Act
status are Indians)
Facts: The appellants sought three declarations in Daniels: 1) that Mtis and non-status
Indians (First Nations) are Indians pursuant to s. 91(24) of the Constitution Act, 1867;
2) that the Federal Crown owes a fiduciary duty to Mtis and non-status Indians; and 3)
that Mtis and non-status Indians have the right to consultation and negotiation.
Issues: Does Indians under s. 91(24) include Metis and First Nations w/o Indian status?
Holding: Appeal allowed in part. The Supreme Court dismissed the second and third
requests, but granted the first (Metis and FN w/o status are Indians under s. 91(24)).
Rule: Mtis & First Nations people without Indian Act status are Indians for the
purposes of s. 91(24), and it is the federal government to whom they can turn. Federal
jurisdiction over Mtis and non-status Indians doesnt mean that all provincial legislation
pertaining to Mtis and non-status Indians are inherently ultra vires (laws of general
application are valid; need to look at Sparrow test).
Reasoning: Delineating and assigning constitutional authority between the federal and
provincial governments would have enormous practical utility for non status Indians and
Mtis who had, until now, found themselves having to rely more on noblesse oblige than
on what was obliged by the Constitution. The historical, philosophical, and linguistic
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

contexts established that "Indians" in s. 91(24) included all Aboriginal peoples,

including non-status Indians and Mtis. "Indians" had long been used as a general term
referring to all Indigenous peoples, including mixed-ancestry communities like the Mtis.
The jurisprudence also supported the conclusion that Mtis were "Indians" under s.
91(24). A broad understanding of "Indians" under s. 91(24) as meaning "Aboriginal
peoples" resolved the definitional concerns raised by the parties in this case. Since s.
91(24) included all Aboriginal peoples, including Mtis and non-status Indians, there was
no need to delineate which mixed-ancestry communities were Mtis and which were non-
status Indians. They were all "Indians" under s. 91(24) by virtue of the fact that they
were all Aboriginal peoples. Non-status Indians and Mtis were "Indians" under s.
91(24), and it was the federal government to whom they could turn. Federal
jurisdiction over Mtis and non-status Indians did not mean that all provincial
legislation pertaining to Mtis and non-status Indians was inherently ultra vires.

4.2 Provincial

Delgamuukw v British Columbia, 1997 SCC (Theres always a duty to

consult, & it must be in good faith; prov can regulate but not extinguish
aboriginal rights)
F: The appellants claimed title to a plot of land of more than 58,000 square kilometers on
the basis of aboriginal title that was never extinguished. There were 71 individual
plaintiffs claiming title. In the original trial the plaintiffs tried to obtain "ownership",
however upon appeal this was changed to "aboriginal title and self government". BC
govt claims aboriginal title was extinguished.
I: Does the province of BC have the power to extinguish Aboriginal title before 1982?
H: Provinces cannot extinguish aboriginal title; only the feds couldve done it.
Rules: Provinces can only regulate aboriginal rights (through laws of general
application); they cannot extinguish them.
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

There is always a duty to consult. Whether the aboriginal group has been consulted is
relevant to determining whether the infringement of aboriginal title is justified.
Consultation must be in good faith
Nature and scope of the duty will vary according to the circumstances
If relatively minor, no more than a duty to discuss important decisions that will be
taken with respect to lands held pursuant to Aboriginal title.
Accommodation is achieved through consultation
Core of indianness
Laws which purport to extinguish aboriginal rights touch the core of Indianness which
lies at the heart of s. 91(24), and are beyond the legislative competence of the provinces
to enact. The core of Indianness encompasses the whole range of aboriginal rights that
are protected by s. 35(1). Those rights include rights in relation to land; that part of the
core derives from s. 91(24)'s reference to "Lands reserved for the Indians". But those
rights also encompass practices, customs and traditions which are not tied to land as
well; that part of the core can be traced to federal jurisdiction over "Indians". Provincial
governments are prevented from legislating in relation to both types of aboriginal rights.
Reasoning: The core of Indianness has been described as matters touching on
"Indianness" or the "core of Indianness". The core of Indianness at the heart of s. 91(24)
has been defined in both negative and positive terms. Negatively, it has been held to not
include labour relations (Four B) and the driving of motor vehicles (Francis). The only
positive formulation of Indianness was offered in Dick. Speaking for the Court, Beetz J.
assumed, but did not decide, that a provincial hunting law did not apply proprio
vigore to the members of an Indian band to hunt and because those activities were "at
the centre of what they do and what they are" (at p. 320). But in Van der Peet, the SCC
described and defined the aboriginal rights that are recognized and affirmed by s. 35(1) in
a similar fashion, as protecting the occupation of land and the activities which are
integral to the distinctive aboriginal culture of the group claiming the right. It
follows that aboriginal rights are part of the core of Indianness at the heart of s. 91(24).
Prior to 1982, as a result, they could not be extinguished by provincial laws of general
application.
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

Tsilhqotin Nation v British Columbia, 2014 SCC (Use s. 35 not IJI; to

establish Aboriginal title, group must prove that its possession was 1)
sufficient, 2) continuous, and 3) exclusive)
F: Provincial law was about tree cutting licenses. It applied to lands that Aboriginal
people had claimed title to and perhaps Aboriginal treaty lands.
I: Was the provincial law valid under land use? If it is, is it applicable to First Nations
people?
H: unimportant. The court ruled in favor of Tsilhqotin but it was because of Section 35.
Rule: To establish Aboriginal title, group must prove that its possession was 1)
sufficient, 2) continuous, and 3) exclusive. #2 is optional but #1 and 3 are required.
Aboriginal title may be violated for a pressing and substantive objective, provided
there is consultation proportionate to the claim, and the violation is consistent
with the Crown's fiduciary duties (I.e. does not seriously harm future
generations).
Aboriginal title entitles group to exclusive use and occupation of land (can go
beyond traditional uses), but cannot be inconsistent with future generations
enjoyment.
Reasoning: Aboriginal titles flows from occupation in regular and exclusive use of the
land and uses the test for occupation to determine so. This compares aboriginal practices
to common law practices and can extend to hunting, fishing, or other resource land. The
tribe has direct evidence of current and historic occupation. They have repelled others
from the land and demanded that outsiders seek permission when wanting to pass
through. They treat the land as if it was exclusively theirs. The Aboriginal title confers on
the group the exclusive right to decide how the land is used and the right to benefit from
those uses. The issuance of timber licence on Aboriginal land is a direct transfer of
Aboriginal property and is not valid. Section 35 could possible justify the incursion onto
Aboriginal Title.
Notes: This is where SCC first recognizes the title, but were concerned with the DOP
implications (from comments made in obiter).
The provincial law authorizes the government to issue tree-cutting licenses. It
could include aboriginal lands, and land aboriginals had claimed title to.
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL

Validity analysis
This law is valid under provincial jurisdiction over land use. (Copa, Lacombe).
The law did not single out Aboriginal Title Lands. It was general in application.
It did have incidental effects on 91(24) because it included Aboriginal title lands.

IJI analysis
Court changed the law and said IJI shouldnt be used when we are talking about
Aboriginal rights and Aboriginal title. Instead, we should use section 35 of the Indian Act
for provincial laws that interfere with Aboriginal rights and Aboriginal title. Approach it
as a question of rights, not a question of title. Limited scope of IJI.
The court says we shouldnt use IJI when were talking about aboriginal rights
or aboriginal title. Rather, our real problem is the provincial law interfering with
aboriginal rights/ title. We should look at S35 infringement, not an interference with
federal jurisdiction. It is an aboriginal RIGHTS question, not a DOP question.
Its unclear whether the court is saying never use IJI for 91(24) or if AR, AT, TR
are not at the core of 91(24).
If theyre saying no IJI for 91(24) thats a HUGE change. Weve always had IJI for
this purpose. If they were taking this view theyd need to articulate it better. Theyd
have to expressly come out and say it.
Its more likely theyre limiting when were using IJI by stripping down what
indianeness means. Wed still use it for 91(24), but not if the provincial law is
touching on 1) aboriginal rights, 2) aboriginal title, or 3) treaty rights.
It might be the case that regulation of reserves is still at the core of 91(24), in
which case wed still be allowed to use IJI. In any event, we will see IJI much less.

As a result of this ruling, we also dont need S88 anymore.

o Valid provincial laws of general application will now apply to things like
aboriginal rights of their own force. They do not need to go through s88
anymore, because those things are no longer at the core of indianness.
LMF P&S and IJI S. 91(24) and s. 35 ABORIGINAL