Federal Power and Federal Duty: Reconciling Sections 91(24) and 35(1) of the Canadian Constitution

From 1867 to 1982, the relationship between the Crown and the Aboriginal peoples of Canada unfolded primarily through section 91(24) of the Constitution Act, 1867, which provides Parliament with exclusive legislative authority over "Indians, and lands reserved for the Indians.'" Indeed, s. 91(24) was the only reference to Aboriginal peoples in the Canadian Constitution until s. 35(1) of the Constitution Act, 1982 came into force, recognizing and affirming the aboriginal and treaty rights of Aboriginal peoples in Canada. In the words of Charlotte Bell, s. 35(1) "was profoundly important in strengthening and protecting the rights of Aboriginal peoples in Canada and demanded a new model for the relationship between governments and Aboriginal peoples."

Since 1982, a question has arisen as to whether s. 35(1) superseded s. 91(24) in terms of "mediating the relationship of Aboriginal peoples with the Crown - including rights protection - or whether section 91(24) of the Constitution Act, 1867 remains relevant in this relationship." This paper proposes that s. 35(1) has not superseded s. 91(24) in the context of Crown-Aboriginal relations in Canada. In R. v. Sparrow, the Supreme Court of Canada held that the two provisions are to be read together; "federal power must be reconciled with federal duty". This statement by the Court reveals that s. 91(24) is by no means irrelevant in the context of Crown-Aboriginal relations after 1982. Indeed, this paper argues that the coexistence of s. 91(24) and s. 35(1) translates into an obligation upon the federal government to exercise its exclusive legislative jurisdiction over Aboriginal peoples in Canada in order to fulfill the constitutional promise embedded within s. 35(1), namely the affirmation and recognition of aboriginal and treaty rights. This federal obligation comes into clearer focus when one considers the duty of the Crown to act honourably in all its dealings with Aboriginal peoples and the responsibility of the Crown to act as a fiduciary towards Aboriginal peoples in particular circumstances.