Within the tangled web of Indigenous rights that has been weighing down the Canadian economy lies Section 35 of the 1982 Constitution, which guarantees Indigenous rights. This provision has become the nation's own Gordian Knot, making it a promising sign that Alberta Premier Danielle Smith is willing to take decisive action.
Smith's stance on constitutional change
Speaking at a news conference on Friday, Smith expressed openness to discussing a constitutional amendment to further define Section 35 if other premiers share that interest. She indicated that such conversations could begin as early as this week, signaling a potential shift in how Indigenous rights are interpreted and applied across Canada.
The impact of Section 35
Section 35 has been at the center of numerous controversies. In British Columbia, it has created uncertainty around private property rights since last summer, contributed to the demise of pipeline projects, and provided a rationale for weak governments to avoid action when Indigenous fishers engage in illegal harvesting on the East Coast. Earlier this month, an Alberta judge invalidated a citizens' petition on secession because Indigenous people were not consulted, highlighting how Section 35 can become a barrier to democratic processes.
Since its inclusion in the Constitution in 1982, Section 35 has expanded far beyond its original intent of acknowledging treaties and ensuring traditions are considered in state decisions. The courts have interpreted it broadly, granting it increasing power over time. In 2004, the Supreme Court ruled that Section 35 imposes a duty on the Crown to consult with potentially affected Indigenous peoples whenever a government decision could impact their interests.
Leverage for anti-development groups
This interpretation has given anti-development factions within Indigenous communities significant leverage to obstruct economic progress. They are more likely to succeed in court if they deem consultations insufficient. Even weak arguments that ultimately fail—such as the 2017 claim that a grizzly bear spirit would be disturbed by a new ski resort—can delay projects for years and create such political turmoil that projects never materialize.
Last year, a British Columbia judge applied the duty to consult retroactively to colonial officials from a century ago in the Cowichan Tribes case. Unsurprisingly, these long-deceased officials did not meet her standards, tainting early land transactions in the Richmond area. In August, current landowners were informed that the Cowichan Tribes also hold exclusive property interests over the region. According to Aboriginal law lawyer Thomas Isaac, this has caused significant distress for landowners.
Isaac recounted two commercial purchases in the tens of millions of dollars that fell through in Richmond due to uncertainty in the land title system stemming from the Cowichan decision. Both deals collapsed because buyers walked away, citing the lack of certainty as the primary reason.
