uring the 1980s, four constitutional conferences were held, at which representatives from four national Aboriginal organizations — the Assembly of First Nations, the Inuit Committee on National Issues, the Native Council of Canada, and the Métis National Council — met with the Prime Minister and the 10 provincial premiers to try to agree on the content of the rights that were recognized and affirmed by section 35 of the Constitution Act, 1982.
No agreement was reached on the content of these rights, other than to confirm that treaty rights include rights in modern-day land claims agreements (added as section 35(3)) and provide that Aboriginal and treaty rights "are guaranteed equally to male and female persons" (added as section 35(4)). The agendas at these conferences were dominated by the issue of the inherent right of self-government and whether it was recognized and affirmed by section 35(1).
Important legal milestones in the 1980s were the Supreme Court's decisions in Guerin v. The Queen, [1984] 2 SCR 335, on the Crown's fiduciary obligations in relation to reserve lands, Simon v. The Queen, [1985] 2 SCR 387, on the legal status and liberal interpretation of treaties, and Dick v. The Queen, [1985] 2 SCR 309, and Derrickson v. Derrickson, [1986] 1 SCR 285, on the federal government's exclusive jurisdiction over "Indians, and Lands reserved for the Indians."
In 1990, the Supreme Court handed down its first decision involving section 35(1) rights, specifically the Musqueam Nation's Aboriginal right to fish for food, ceremonial, and societal purposes. The Court in R. v. Sparrow, [1990] 1 SCR 1075, decided that any Aboriginal rights that had not been extinguished before section 35(1) came into force on April 17, 1982, were recognized and affirmed and could only be infringed thereafter by or pursuant to legislation that had a valid legislative objective and that respected the Crown’s fiduciary obligations. Respect for these obligations requires that the Crown impair Aboriginal rights no more than necessary when pursuing its legislative objectives, pay compensation in appropriate circumstances, and consult with the Aboriginal people whose rights are at stake. This test for justifiable infringement is known as the Sparrow test.
In R. v. Sioui, [1990] 1 SCR 1025, the Supreme Court affirmed and applied the principles of treaty interpretation laid down in Simon v. The Queen and acknowledged that, prior to the 1763 Treaty of Paris (Period 3 above), the British and French had maintained relations with the Indigenous nations very close to those maintained with independent nations and had entered into treaties of alliance with them. The Court thus accepted the historical situation described above in Period 3.
Another important development in this period was the BC government's decision in the early 1990s to enter into a modern-day treaty process to resolve Indigenous land rights and other claims, including self-government claims. The BC Treaty Commission was established in 1992 to facilitate this process.
After Elijah Harper, an Ojibway-Cree member of the Manitoba legislature, successfully blocked ratification of the 1990 Meech Lake Accord (which would have acknowledged the special status of Quebec without addressing Indigenous self-government rights), a further attempt to renew the Canadian Constitution was made when the Charlottetown Accord was negotiated in 1992. If accepted, the Accord would have provided for explicit recognition and implementation of the inherent right of Indigenous self-government. However, the Accord failed when it was rejected by a majority of Canadian voters in a referendum held in October 1992. Since then, further elucidation of Aboriginal rights, including the inherent right of self-government, has depended either on court decisions or negotiated agreements.