Aboriginal and Treaty Rights
Constitutional protection
Section 35(1) of the Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights. These are not created by the Charter and are not subject to section 1. Section 25 of the Charter ensures Charter rights do not abrogate Aboriginal rights. Section 35(3) extends protection to rights secured by land claims agreements.
Proving rights
Aboriginal rights require proof of pre-contact practices integral to the distinctive culture. Aboriginal title requires exclusive occupation and possession at sovereignty. Treaty rights require proof of the treaty's existence and scope, interpreted generously with ambiguities resolved in favour of the Aboriginal party.
Infringement and justification
The Sparrow test asks whether the right exists, whether the Crown infringed it, and whether the infringement is justified. Justification requires a valid legislative objective, such as conservation, and honour of the Crown, including consultation and, where appropriate, accommodation. The Crown's fiduciary duty and the honour of the Crown inform all dealings.
Traps
Questions often apply the Charter's section 1 to section 35 rights, or treat consultation as a veto. Another trap is confusing Aboriginal rights with title, which carries a sui generis and inalienable character.
Rule of thumb
Ask: does a right exist, was it infringed, and can the Crown justify the infringement through a compelling objective and honourable process?