aboriginals, treaties, rights, Constitution Act, Canada, provincial law, federal law
It is now well established that federal law and regulatory activity may interfere with the exercise of aboriginal peoples' existing treaty and aboriginal rights, despite s. 35(1) of the Constitution Act, 1982, whenever the federal government can justify the interference. It is not yet clear, though, what power, if any, Canada's provinces have to regulate, even in justified ways, such rights and their exercise. This article argues that the provinces, as a general rule, have no such authority. Except in certain very specific and isolated circumstances, they have no power, even apart from s. 35, to regulate the exercise of s. 35 rights, because such rights lie within the core of exclusive federal authority unders. 91(24) of the Constitution Act, 1867. Nothing in the Constitution Act, 1982 modifies that original incapacity. Section 88 of the federal Indian Act, which sometimes gives limited federal effect to certain provincial laws, itself stands in need of justification when, because of it, such laws do constrain the exercise of such rights. The better view is thats. 88's own impact on such rights cannot be justified.
Kerry Wilkins, "Of Provinces and s.35 Rights" (1999) 22:1 Dal LJ 185.