1 Aboriginal Title Nature of Right:
-an umbrella concept
-livelihood practices attaching to crown land
- 'higher order' right, not tied to particular practices
-harder to ascertain than FN rights
-Delgamuukw:
-title is sui generis: is inalienable and arises from pre-contact occupation and relationship bw CL and FN tenure system; is a right in the land
- aligned w/ concept of reserves Requirements for Proof of Title Reqmts for Proof of Title Pre-contact occupation that is exclusive (Delgamuukw) Exclusive possession in intention to possess and control land (Marshall/Bernard)
- narrows Delgamuukw Translate pre-contact right at time of sovereignty into modern day right that corresponds in CL (Marshall/Bernard)

Argument Pro Govt

Argument Pro FN

-applies to nomadic and semi nomadic groups

Implies a level of self govt (Delgamuukw)> do not need to how specific activity to prove

2 Framework for Aboriginal Rights Issue: (identify as specifically as possible) ____________________________________________________________________________________________________________ _________________________ Interpretive Approach:
? Courts should interpret "recognized and affirmed" in s. 35 generously and liberally - rights expansive approach (Sparrow) o look at it from FN perspective o any doubts should be resolved in favour of aboriginal rights o honour of the Crown is at stake - must make sure that the dealings are fair and in good faith o Crown has a fiduciary duty, held to a high standard (Guerin)
? Purposive analysis: two purposes of s. 35 (Van der Peet) o recognition of FN prior occupancy o reconciliation of prior occupancy with Crown sovereignty State Framework that will be applied: (e.g. I will identify i) the scope of the right to assess if the right falls under s. 35, ii) if it was extinguished, iii) infringed, iv) justified....) ____________________________________________________________________________________________________________ ________________________________ ____________________________________________________________________________________________________________ _______________________________ A. SCOPE OF THE RIGHT Aboriginal Rights

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1. Nature of the Right a. nature of govt reg is not determinative scope, it can only reg exercising of right (Sparrow) b. existing rights must be unextinguished and consistently exercised c. spectrum of FN rights claims, depending on the connection of the right to the land (Van der Peet) i. freestanding (i.e.: customary adoption) ii. site-specific rights (i.e.: fishing in a particular fishery)

2. Van der Peet test- is right to distinctive to culture? (Sparrow)
*** only address those that apply to fact pattern, some are redundant Principle of Test 1) cts must take into account the perspective of FN for reconciliation

2) cts must identify

Argument Pro Govt
-limit: cannot be antithetical to Cdn framework (Mitchell)

Argument Pro FN
- means placing equal weight on FN and CL perspectives
-important recognition of FN law, but enforces colonial regime

ambit of the claim must reflect the evidence

precisely the nature of rights claim

3) practice, custom, ortradition must be of central significance, essential, unique "but for" this practice, culture would not be the same

4) practices, customs, and traditions have

-trade of fish is not a centrally significant practice when the band is too small to have labour division (Van der Peet);
-gaming as it was not done on a large-scale (Pamejawon- but more for context of self govt rights)

-just because the custom is something that any human would do does NOT mean that the activity is not centrally significant to the culture (Sappier)
-cutting wood for shelter or economic survival (Sappier)

- evidentiary difficulties: does not have to be an unbroken chain - some discontinuity is ok, especially if the

4 continuity re precontact

discontinuity is the result of Crown actions
-post-contact influence can be used to draw influences

evidentiary burden remains on FN

5) cts must approach rules of evidence in light of the evidentiary difficulties

6) claims to right must be adjudicated on a specific, case by case, rather than a general, basis

7) practice, custom, or tradition must be of independent significance

8) practice must be distinctive

- just because one band was successful with a claim does not mean that other bands will automatically enjoy the same rights

-recognition that some rights exist thru general application

-cannot be a practice that is incidental to another practice that is more important- needs to be able to stand on its own
> e.g.- trade of fish that is incidental to the practice of cementing family relationships is NOT within the scope of s. 35 (Van der Peet)

- must be a defining feature of the community (ie: centrally significant)

- need not be distinct or unique (Sappier)

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9) cannot be derived

-can have expanded bc of Euro influence, e.g. hunting equipment used

from or integral bc of European influence

10) cts must take into account both the relationship of FN to the land and the distinctive societies and cultures of FN
> identify the right at stake:

- s. 35 involves a spectrum of rights, so both cultural and land related rights are included

____________________________ _________

Metis Rights (Powley)
>Sparrow framework above, applies re interpretive principles
> Van der Peet factors apply to Metis rights but are modified in terms of pre-contact reqmt to "pre-control aspect;" 3 prong test for Metis rights Principle of Test Self identification

Ancestral connection Community acceptance

Argument Pro Govt

Argument Pro FN

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