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Law Notes > Aboriginal Law Notes
This is an extract of our Meta Framework document, which we sell as part of our Aboriginal Law Notes collection written by the top tier of University Of Victoria; University Of Toronto students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Aboriginal Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Meta Framework Interpretative Approach to s. 35 (Sparrow)
- rights are not frozen: must be interpreted as an evolving, adapting to new contexts
- the court must take a purposive, liberal approach to ensure rights claims are not static: must look at the analysis in light of the underlying reasons behind se. 35(1) rights protections: recognition of prior occupancy and reconciliation bw aboriginal peoples living in distinctive societies, with their own practices, traditions and cultures, and the sovereignty of the crown (VDP)
- hence there is a generous and liberal interpretation in favour of aboriginal peoples
- this stems from the fiduciary relationship between aboriginal people and the crown
- takes into account the aboriginal perspective to determine the meaning of the right at stake
- CRITIQUES of espoused commitment to incorporating FN rights: o This is limited as the perspective must be framed in terms that are cognizable to the Canadian legal and constitutional structure which such is the decision in Marshall and Bernard, are not serving reconciliation very well o There is a question on how it is to be cognizable to the Canadian system of common law, especially if common law can change and be fluid and dynamic, and is supposed to include 'customary' law o True reconciliation is supposed to align the two systems together, so fitting one into the other is not reconciling o Macklem and Ash: cts relying on an contingent as opposed to inherent approach to rights, e.g. in Sparrow Origins of Rights (Sparrow)
- basis for s. 35(1) rights do not come from the constitution; they existed prior to CA 1982; existed pre contact
- rights exist because they come from aboriginal law, governance, practices and traditions
- rights were independent and existing and did not depend on the recognition of them by Canadian authorities (Calder, Cote, Adams, VDP)
- they exist in Canadian law not because of governmental recognition but because they were not extinguished or conquered
- part of common law and constitutional law
- rights were affirmed through the original treaty process Scope, Nature of Rights (Sparrow)
- aboriginal rights cover a spectrum of rights from practices, traditions and customs, integral to the distinctive cultures of aboriginal peoples to activities that must take place on the land which confer to the land itself (title), or rights that fall on a spectrum with respect to their degree of connection to the land (VDP)
- are sui generis
- scope and content not determined by govt reg
Buy the full version of these notes or essay plans and more in our Aboriginal Law Notes.
