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The word "existing" in section 35(1) has created the need for the Supreme Court of Canada to define what Aboriginal rights "exist". The Supreme Court ruled in R. v. Sparrow [4] that, before 1982 (when section 35 came into effect), Aboriginal rights existed by virtue of the common law. Common law could be changed by legislation.
Section 35 also provides protection of aboriginal title which protects the use of land for traditional practices. Subsection 35(2) provides that aboriginal and treaty rights extend to Indian, Inuit, and Métis peoples and subsection 35(4), which was added in 1983, ensures that they "are guaranteed equally to any male and female persons ...
Musqueam flag. The Van der Peet test is a legal framework used by Canadian courts to determine the scope and content of Indigenous rights. The test was established by the Supreme Court of Canada in the 1996 case of R v Van der Peet, which involved the Musqueam First Nation in British Columbia and their traditional fishing practices.
R v Van der Peet, [1996] 2 S.C.R. 507 is a leading case on Aboriginal rights under section 35 of the Constitution Act, 1982. The Supreme Court held that Aboriginal fishing rights did not extend to commercial selling of fish. From this case came the Van der Peet test for determining if an Aboriginal right exists.
Asserts the indigenous peoples' right to own type of governance and to economic development (articles 17–21, 35–37) Health rights (articles 23–24) Protection of subgroups ex. elderly, women, and children (article 22)
The framework is intended to "enshrine Section 35 of the Constitution Act, 1982— which affirms Indigenous rights — in federal law" and to "fill the gap between federal government policies and multiple court decisions on Indigenous rights." [3]
MELBOURNE (Reuters) -Western Australia will overturn its 2021 Aboriginal cultural heritage protection laws, introduced after the destruction of the ancient Juukan Gorge rock shelters, in response ...
R v Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35(1) of the Constitution Act, 1982.