Has Constitutionalizing Aboriginal and Treaty Rights Made a Difference?


  • Kent McNeil Osgoode Law




Constitution Express, Constitution of Canada, aboriginal rights, law, treaties


The Constitutional Express was a major impetus behind the recognition of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. This article assesses the impact of inclusion of these rights in the Canadian Constitution. It starts by revealing their vulnerability to legislative infringement and extinguishment prior to 1982. It then discusses the effect of section 35, especially as interpreted and applied by the Supreme Court of Canada. The tests for Aboriginal resource harvesting rights such as fishing rights, Aboriginal title to land, Métis rights, treaty rights, and governance rights are discussed. The continuing vulnerabilty of all these rights to legislative infringement is also assessed and critiqued. The article concludes that the inclusion of section 35 in the Constitution has had a significant impact, but the Supreme Court's interpretation of it falls short of the requirements of the UN Declaration on the Rights of Indigenous Peoples that Canada has endorsed.

Author Biography

Kent McNeil, Osgoode Law

is a distinguished research professor (emeritus) at Osgoode Hall Law School in Toronto, where he began teaching in 1987. He has also taught in the Indigenous Law Centre’s Summer Program in Saskatoon. His research focuses on the rights of Indigenous Peoples in Canada, the United States, Australia, and New Zealand. He is the author of numerous works on Indigenous Rights, including three books: Common Law Aboriginal Title (1989), Emerging Justice? Essays on Indigenous Rights in Canada and Australia (2001), and Flawed Precedent: The St. Catherine’s Case and Aboriginal Title (2019). He has held visiting positions in Australia, France, Italy, and the United States, and has acted as a consultant and expert witness for Indigenous Peoples. His work has been relied upon by the Supreme Court of Canada and the High Court of Australia in leading cases on Indigenous Rights.