Constitutional Protections

The Constitution is the highest law of all Canadian laws. It protects:

• Aboriginal and Treaty Rights that existed in 1982
• Aboriginal and Treaty Rights acquired before and after 1982 through a Land Claim Agreement

Treaties and Canadian laws about Aboriginal Rights determine the scope of these rights and what is protected. For information about what these rights are see the Aboriginal Rights and Treaties pages.

Aboriginal Peoples of Canada include Indian, Inuit and Métis Peoples. These rights are guaranteed equally to both male and female persons.

The inclusion of these rights in the Constitution means…

• A law that infringes a right can be declared invalid unless the infringement can be justified. For example, a law that infringes Treaty hunting or fishing rights could be challenged as infringing a recognized Aboriginal or Treaty Right. If the infringement cannot be justified, a charge under the law would be invalid.
• The government must consult with Indigenous communities if they are taking an action that could negatively affect an Aboriginal or Treaty Right. This is called the duty to consult. If the duty to consult has not been met the court can find the government action invalid. The court can order the government to take steps to fulfill the duty to consult or to pay money to an Indigenous group that they did not properly consult.

The Constitution protects rights that the government had not already taken away in 1982. Before this, under Canadian law, the government could pass a law that ended an Aboriginal or Treaty Right. This generally had to be a federal law, not a provincial law. The government could also enter into a Treaty that ended an Aboriginal Right of an Indigenous community.

The government must prove that a right was ended by a law. The law must be intended to end the right. A law that controls how a right is used does not end the right. This is the case even if the right is so heavily controlled that it cannot be exercised. 

A right that existed in 1982 is not frozen in time. It can continue to change to meet changing circumstances of the community.