Law 2101 Lecture Notes - Lecture 14: Aboriginal Title, First Nations
ABORIGINAL LAW LECTURE 2
THE CONSTITUTION ACT, 1982
• 35. (1) The existing aboriginal &treaty rights of the aboriginal peoples of Canada are hereby
recognized &affirmed
• 5. )n this Act, aboriginal peoples of Canada includes the )ndian, )nuit and Metis
peoples of Canada
• Section 35 does not have any limitation to it
• Aboriginal rights have to have some degree of uniformity across the country
WHAT IS AN EXISTING ABORIGINAL RIGHT
• R v Sparrow the 1st case to answer this question
• An existing right is the right to carry on an aboriginal custom or practice in a contemporary
manner provided
o )ntegral to the group’s culture at time of st contact w/Europeans
o Not clearly extinguished by plain legislation before 1982
CAN GOVERNMENT VIOLATE S. 35 RIGHTS?
• R v Sparrow
o Yes, if they prove they met a 2 part test
▪ That they had valid legislative objective compelling &substantial not just
in public interest; and
▪ That they acted consistently w/their trust-like relationship w/the
Aboriginal group, that is, they interfered w/the right as little as possible,
consistent w/the hnour of the Crown
• Later cases--&gov’t must show it consulted in advance w/the Aboriginal group claiming a
right &l if appropriate, accommodated their interests &concerns
o Gov’t must act in good faith procedurely &substantively
• Gov’t has the burden of proving they can pass the justification test &that they consulted
w/the Aboriginal group
PROVING SECTION 35 RIGHTS
• Both fed &provincial gov’t must respect s. 5 rights &justify their infringement according to
the 2 part test
• Section 35 must be proved case by case &community by community (Sparrow)
• Thus far, mainly hunting &fishing practices have been recognized by the courts
o For food, not large scale
• Not just First nations, but Metis and Inuit communities enjoy aboriginal rights protected by
s. 35
ABORIGINAL TITLE: A SPECIAL KIND OF ABORIGINAL RIGHT
• English common law—adverse possession over lengthy time created title
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Document Summary
The constitution act, 1982 recognized &affirmed: 35. (1) the existing aboriginal &treaty rights of the aboriginal peoples of canada are hereby peoples of canada. Section 35 does not have any limitation to it: aboriginal rights have to have some degree of uniformity across the country, (cid:885)5. (cid:523)(cid:884)(cid:524) )n this act, (cid:498)aboriginal peoples of canada(cid:499) includes the )ndian, )nuit and metis. What is an (cid:498)existing aboriginal right(cid:499: r v sparrow the 1st case to answer this question, an (cid:498)existing right(cid:499) is the right to carry on an aboriginal custom or practice in a contemporary manner provided. )ntegral to the group"s culture at time of (cid:883)st contact w/europeans: not clearly extinguished by plain legislation before 1982. Can government violate s. 35 rights: r v sparrow, yes, if they prove they met a 2 part test right &l if appropriate, accommodated their interests &concerns, that they acted consistently w/their trust-like relationship w/the.
