Section 35: Aboriginal and Treaty Rights and the Duty to Consult

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada, who include the First Nations, Inuit and Métis peoples.

What section 35 protects

• Aboriginal rights: practices, customs and traditions integral to a distinctive Indigenous culture.
• Aboriginal title: rights to land itself.
• Treaty rights: rights in historic and modern treaties.

The duty to consult

The Supreme Court of Canada has held that the Crown must consult, and where appropriate accommodate, Indigenous peoples when it is considering conduct that might adversely affect their rights (for example, in Haida Nation, 2004).

Limits

Governments can sometimes infringe section 35 rights, but only if they can justify it under strict tests set by the courts.

In everyday matters

Section 35 issues often arise in resource development, land use and harvesting. In criminal sentencing, courts must also consider the circumstances of Indigenous offenders (Gladue principles).

Getting help

These are specialized areas of law. Indigenous legal clinics and lawyers with experience in Aboriginal law can help.

Sources

• Constitution Act, 1982
• Haida Nation v. British Columbia, 2004 SCC 73

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General Ontario legal information, not legal advice for your matter, and reading it does not create a retainer. Sources checked 16 October 2026: check the current law, forms and dates before you act.

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This article is general information for people in Ontario, not legal advice. Rules, forms and deadlines change, and every situation is different. Check the current rule or speak to a licensed legal professional before you act.