“EXISTING” ABORIGINAL RIGHTS IN SECTION 35 OF THE CONSTITUTION ACT, 1982
AbstractThe Supreme Court recognises Métis rights, and Aboriginal rights in the former French colonies, without regard for their common law status. This means that “existing aboriginal rights” in section 35 of the Constitution Act, 1982 need not have been common law rights. The Supreme Court recognises these rights because section 35 constitutionalised the common law doctrine of Aboriginal rights, and not simply individual common law Aboriginal rights. As such, section 35 forms a new intersection between Indigenous and non-Indigenous legal systems in Canada. It is a fresh start – a reconstitutive moment – in the ongoing relationship between Indigenous and non-Indigenous peoples.
Keywords:Section 35, Existing Rights, Metis
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