Section 35 Aboriginal rights and title, duty to consult and accommodate, UNDRIP, treaty rights in Ontario, and FNLMA land management — for Ontario Indigenous and natural resources lawyers.
Section 35(1) of the Constitution Act, 1982 recognizes and affirms the "existing Aboriginal and treaty rights of the Aboriginal peoples of Canada." This constitutional protection covers three groups: Indians (First Nations), Inuit, and Metis. Section 35 rights are not subject to the reasonable limits clause in s.1 of the Canadian Charter of Rights and Freedoms — they have their own infringement and justification framework developed by the Supreme Court of Canada.
The Sparrow test (R v Sparrow, 1990 SCC) established that the Crown may infringe a s.35 right only with (1) a valid legislative objective and (2) in a manner consistent with the Crown's fiduciary duty to Aboriginal peoples. The Haida Nation (2004 SCC) and Taku River (2004 SCC) cases established the procedural duty to consult before infringing rights.
Proprietary right to land based on pre-sovereignty occupation; gives right to exclusive use, control, and benefit from land including subsurface resources; must be surrendered to Crown voluntarily or expropriated with justification and compensation
Key case: Tsilhqot'in Nation v BC, 2014 SCC 44
Rights to practices, customs, and traditions integral to the distinctive culture of the Aboriginal group prior to European contact; includes rights to harvest, fish, trap, gather, and engage in cultural practices on ancestral territory
Key case: R v Van der Peet, 1996 CanLII 216 (SCC)
Rights guaranteed in specific treaties between the Crown and First Nations; in Ontario includes harvest rights (hunt, fish, trap) and reserve land rights under Robinson Treaties, Upper Canada treaties, and numbered treaties
Key case: Ontario v Restoule, 2024 SCC (Robinson Huron annuities)
Section 35 protects Metis Aboriginal rights arising from practices integral to Metis culture that developed after European contact but before effective European control; geographic and historic community-specific
Key case: R v Powley, 2003 SCC 43
Section 35 protects Inuit Aboriginal and treaty rights in northern Canada including land, resource, and governance rights under land claims agreements (Nunavut Land Claims Agreement, James Bay and Northern Quebec Agreement)
Key case: Inuit Tapirisat cases; land claims agreement implementation
The duty to consult is a constitutional obligation on the Crown (federal and provincial), not on private project proponents. However, the Crown may delegate procedural aspects of consultation to proponents. The duty is triggered by three elements:
The Crown has actual or constructive knowledge of the existence or potential existence of an Aboriginal right or title claim
The Crown is contemplating conduct (regulatory decision, approval, legislation) that could potentially affect the right
The contemplated conduct might adversely affect the asserted right — not a high threshold; potential adverse effect suffices
| Claim Strength / Impact | Consultation Obligation | Example |
|---|---|---|
| Weak claim / minor impact | Minimum: Notice, sharing of information, opportunity to respond; no formal consultation process | Preliminary resource license in area where claim strength is low and impact is indirect |
| Moderate claim / moderate impact | Greater consultation: Meaningful dialogue, consideration of concerns, potentially adjustment of Crown conduct; good faith engagement required | Forestry license in treaty territory; moderate infringement on harvest rights |
| Strong claim / serious impact | Deep consultation: Formal process, serious consideration of group's views, strong possibility of accommodation required; may require consent for some decisions | Major resource development on unceded territory with strong title claim; potential extinguishment of right |
Accommodation: Where the Crown's proposed action would infringe a right, accommodation may be required — modifying project timing, scope, terms, or providing mitigation measures or compensation. Accommodation does not require agreement; the Crown must genuinely consider the concerns raised and modify conduct proportionately.
| Treaty | Territory | Rights | Current Issues |
|---|---|---|---|
| Upper Canada Treaties (1764–1862) | Southern Ontario | Land surrender; small reserves retained; harvest rights in most upper Canada treaties | Many of the earliest and most contested treaties; annuity obligations confirmed in Restoule |
| Robinson Huron Treaty (1850) | North shore of Lake Huron | Land surrender; reserves; annuities; right to hunt and fish on ceded territory (subject to settlement) | Ontario v Restoule, 2024 SCC: Crown must increase annuities when Crown derives economic benefit from ceded territory |
| Robinson Superior Treaty (1850) | North shore of Lake Superior | Same structure as Robinson Huron; annuities; harvest rights on ceded lands | Same litigation and decision as Restoule |
| Treaty 3 (1873) | Northwestern Ontario (Kenora/Lake of the Woods area) | Harvest rights on surrendered territory; reserves; annuities | Covers significant resource territory; Anishinaabe Nation in Treaty 3 (AN3) engaged in ongoing implementation claims |
| Treaty 9 (James Bay Treaty, 1905–1906) | Northern Ontario (James Bay lowlands and far north) | Broad land surrender; reserves; harvest rights; annuities | Adhesions made 1929–1930; Mushkegowuk Cree, Oji-Cree, and other Nations; ongoing litigation regarding Treaty 9 interpretation |
| Williams Treaties (1923) | Kawartha Lakes and Lake Simcoe areas | Land surrender; monetary compensation; no express harvest rights (distinguishing factor from earlier treaties) | Canada and Ontario reached settlement with Williams Treaties First Nations in 2018 recognizing outstanding obligations |
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly in 2007. Canada enacted the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) in 2021, committing to align all federal laws and policies with UNDRIP. Ontario has not yet enacted equivalent provincial legislation.
Canadian courts have not yet held that FPIC creates an absolute veto power for First Nations over resource projects. The prevailing view is that UNDRIP and FPIC strengthen the duty to consult and may require consent in cases of serious infringement of Aboriginal title or rights. Federal Impact Assessment and Natural Resources Canada guidance now expressly reference FPIC as an aspiration. The BC DRIPA (2019) and Haida Nation Recognition Agreement (2024) represent the leading edge of FPIC implementation in Canada.
The First Nations Land Management Act (FNLMA) allows signatory First Nations to opt out of the land management provisions of the Indian Act and govern their reserve lands under their own Land Code. Key features relevant to Ontario practitioners:
The Crown's duty to consult arises whenever the Crown has real or constructive knowledge of a potential Aboriginal claim or right and is considering conduct that might adversely affect that right (Haida Nation v BC, 2004 SCC 73). In Ontario, the duty applies to Crown decisions, resource approvals, and legislative action. The duty requires meaningful consultation — not merely information-sharing — and may require accommodation where infringement would otherwise occur. The depth of consultation required is proportional to the strength of the Aboriginal claim and the seriousness of the potential adverse effect.
Ontario is covered by a series of historic treaties, including the Upper Canada treaties (18th-19th century), the Robinson Treaties (1850), and numbered Treaties 3, 5, 9, and the Williams Treaties (1923). These treaties guarantee rights to harvest (hunt, fish, trap) on ceded lands, and rights to reserve lands. Treaty rights are protected under s.35 of the Constitution Act, 1982. The Crown may infringe treaty rights only with compelling justification and after satisfying the duty to consult.
Canada enacted the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) in 2021, committing Canada to align federal laws and policies with UNDRIP. Ontario has not enacted provincial UNDRIP legislation. However, UNDRIP principles — including free, prior and informed consent (FPIC) — increasingly inform Crown consultation practice and court interpretations of s.35 rights. The FPIC standard in UNDRIP Articles 10, 19, 28, and 32 creates an expectation (not yet a veto) that Indigenous peoples be involved in decisions affecting their rights and territories.
Aboriginal title is a proprietary right to land derived from pre-sovereignty occupation and use by Indigenous peoples (Tsilhqot'in Nation v BC, 2014 SCC 44). It gives the title-holding nation the right to use, manage, and benefit from the land — including the right to consent to or refuse development. No final declaration of Aboriginal title has been made in Ontario, though several First Nations have outstanding title claims. Ontario section 35 litigation is active.
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