Section Thirty-five of the Constitution Act, 1982

Section 35 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 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. Aboriginal 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.

The provision provides that:

(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.

In 1982, when Delbert Riley the National Leader of the National Indian Brotherhood or later known as the "AFN" or "Assembly of First Nations", entrenched section 35 into the Canadian Constitution was quoted as saying "Aboriginal Rights are what First Nations define them as. Their rights are what they were before European contact, and remain the same after European contact".

Aboriginal rights refer to the activities, practice, and traditions of the Aboriginal peoples in Canada that are integral to the distinctive culture of Aboriginal peoples.

The word "existing" in section 35(1) has created the need for the Supreme Court to define what Aboriginal rights "exist". The Supreme Court ruled in R. v. Sparrow that, before 1982 (when section 35 came into effect), Aboriginal rights existed by virtue of the common law. Common law could be changed by legislation. Therefore, before 1982, the federal Parliament could extinguish Aboriginal rights, whereas now it can no longer extinguish any rights that still existed in 1982. Extinguishment of rights can only occur through an act that showed "clear and plain intention" on the government to deny those rights.

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