Runnymede Radio Understanding an Ambiguous Clause: Section 35 and the Drafting of the Constitution
Mar 18, 2026
Michael Scott, project manager and editor at PrimaryDocuments.ca who researches constitutional drafting, traces the history behind Section 35. He maps the 1980s players and shifting politics. He recounts how wording like "existing" was added, debates over title and rights, and why drafting choices left major questions unresolved.
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Four Stages Left Section 35 Ambiguous
- The drafting of Section 35 unfolded across four stages from 1980–1983, producing persistent ambiguity rather than clarity.
- Federal-provincial shifts and changing Indigenous participation created a patchwork process that left key terms undefined.
Initial Exclusion Of Indigenous Voices
- In summer 1980 Indigenous rights were effectively ignored: Section 25's precursor was initially omitted and Indigenous groups were not consulted.
- Provinces unanimously removed the undeclared-rights clause in August 1980, signaling early provincial resistance.
Federal Hesitation Versus Indigenous Demand
- During the federal unilateral phase Indigenous organizations pressed for a positive entrenchment of rights but the Trudeau government delayed a positive clause until after patriation.
- Ottawa feared defining rights too early might narrow them or impose legal chaos on provinces.