Purpose and interpretation of Section 35

The purpose of section 35 has been stated in many ways over the years. At its core, section  35(1) serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty (Desautel, SCC). This purpose has also been described as “the reconciliation of aboriginal people and non-aboriginal peoples and their respective claims, interests and ambitions” (Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 6 ) and “[t]he reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship” (Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53).

Section 35 is to be given a generous, liberal and purposive interpretation (Sparrow, SCC). The interpretation of section 35 must also reflect the nature of the relationship between the Crown and Indigenous peoples.  The courts retain the final word on the scope of section 35, although Parliament and provincial legislatures may affirm their position on its meaning through legislation (Reference, SCC, 2024).

The honour of the Crown is a foundational principle which governs the relationship between the Crown and Indigenous peoples (Mikisew Cree First Nation v Canada, 2018 SCC 40). In all of its dealings with Indigenous peoples the Crown must act honourably, in accordance with its historic and ongoing relationship with the Indigenous peoples in question. The honour of the Crown is not a cause of action in itself, it “speaks to how obligations that attract it must be fulfilled” and it imposes a high standard of conduct (Manitoba Métis Federation Inc. v Canada (Attorney General), 2013 SCC 14; Ontario (Attorney General) v. Restoule, 2024 SCC 27; Quebec (Attorney General v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39). What specifically constitutes honourable conduct will vary with the circumstances of each case, depending on the purpose of the promise or provision at issue. Not all interactions will engage this principle so as to give rise to a substantive duty imposed on the Crown. The honour of the Crown finds application in concrete practices and may give rise to different duties in different circumstances (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73; Manitoba Métis Federation, SCC; Mikisew Cree, 2018, SCC; Reference, SCC; Restoule, SCC; Takuhikan, SCC).

Regardless of the means used by the Crown to advance the process of reconciliation, the principle of the honour of the Crown must be applicable when it is required. The common element among the circumstances recognized as engaging the honour of the Crown is that they relate to the reconciliation of specific Indigenous claims, rights or interest with the Crown’s assertion of sovereignty (Takuhikan, SCC). A breach of the obligations flowing from the honour of the Crown makes available the full range of remedies, including declaratory, damages and other coercive relief (Restoule, SCC; Takuhikan, SCC). Remedies meant to address the breach of an obligation flowing from the honour of the Crown will vary with the circumstances of each case and rests on “reconciliatory justice” which aims to impose a measure to restore and improve the relationship between the Crown and Indigenous peoples and aims to place the parties back on the path to reconciliation (Takuhikan, SCC).

The Government of Canada has affirmed in an Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019 c.24 (CFS Act) that section 35 encompasses the inherent right of self-government, including for jurisdiction over child and family services (sections 8(a), 18), and provided that the CFS Act is binding on the federal and provincial Crown (section 7). The CFS Act is an effort to implement the UN Declaration in Canada through a braiding together of domestic, Indigenous and international law “to form a strong single rope”, reflecting “the specific framework for reconciliation when it comes to Indigenous child and family services, in the spirit of the [UN] Declaration” (Reference, SCC).

The Supreme Court of Canada has recognized the CFS Act as a form of legislative reconciliation intended to “respect, promote, protect and accommodate inherent rights through … statute.” (Reference, SCC). Parliament’s affirmation of an inherent self-government right under section 35 signifies “a promise of rights recognition” and engages the honour of the Crown (Reference, SCC). The Government must accordingly interpret the right broadly and work diligently to implement it, as long as the law remains in effect and pending judicial determination of the issue. Further, one consequence of section 7 is that the Government cannot now assert that no Indigenous right of self-government exists for child and family services in any proceedings or discussions (Reference, SCC).

The Supreme Court itself found it unnecessary to decide whether section 35 encompasses a right to self-government in relation to jurisdiction of over child and family services in upholding the constitutionality of the CFS Act as a valid exercise of Parliament’s jurisdiction under section 91(24) of the Constitution Act, 1867. Rather, courts will ultimately make the determination in future cases based on the evidence provided.