Treaties Origins of Rights
- basis of s. 35(1) treaty rights is post contact relations; they didn't exist precontact (Marshall 2)
- part of CL and constitutional law: law of Ks, protection enshrined in s. 35(1)>
gives recognition historically awarded in colonial times Scope, Nature of Rights (Sparrow)
- are sui generis
- scope is generally within terms of treaty, but can include reasonably incidental activities (Sundown, Marshall 2); can include enforcement of rights not recorded via implied rights (Marshall 1)
- can be both procedural (e.g. consultation) and substantive (e.g. hunting) (Mikisew)
- protection of traditional activities only (Marshall/Bernard)
- treaty rights can evolve over time if essential character is the same (Bernard/Marshall, Marshall 1)
- must have been contemplated by parties at the time of signing (Bernard/Marshall)
- not subject to s. 1 of the CH, but not absolute, must be read w federal powers
- "existing" means unextinguished: constitutionalization does not revive extinguished rights Interpretative Approach-

traditional, narrow approach shifted w White and Bob (1964); Simon (1985): now we take a liberal interpretation, w ambiguities resolved in favour of FN; ct looks for mutually bound intent est, examines parties conduct rights are not frozen: must be interpreted as an evolving, adapting to new contexts (Simon, Sundown, Marshall 1) reflects purposes of s. 35(1) rights protections: recognition of prior occupancy and reconciliation of sovereignties (VDP) o ct should choose interpretation that favours reconciliation (Marshall 1) honour of the crown is at stake in upholding promises (Badger; Marshall 1) takes into account the aboriginal perspective to determine the meaning of the right at stake CRITIQUES of espoused commitment to incorporating FN rights: o 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

Buy the full version of these notes or essay plans and more in our Aboriginal Law Notes.