Trade and commerce Constitutional Law. Aboriginal rights Constitution Act, 1867, Section 35(1): “The existing aboriginal and treaty rights of the aboriginal.

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Presentation transcript:

Trade and commerce Constitutional Law

Aboriginal rights Constitution Act, 1867, Section 35(1): “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” © Copyright 2013 Tolga R Yalkin

Claimant must prove that … the aboriginal practice, custom or tradition: –was carried out prior to European contact; –has continued to present (perhaps intermittently) in some shape or form (some evolution is permissible); and –was and is currently integral to the distinctive (but not necessarily distinct) culture of the community, and there is prima facie infringement of the aboriginal practice, custom or tradition. © Copyright 2013 Tolga R Yalkin

Crown must prove that … the right was extinguished before 1982; or the infringement is justified. © Copyright 2013 Tolga R Yalkin

Aboriginal rights An aboriginal right is a custom, practice, or tradition that: predates European contact; has been substantially continuous in a specific location; was and is integral to the aboriginal community in question; and has not bee extinguished. The Constitution does not permit prime facie infringements of aboriginal rights unless justified. © Copyright 2013 Tolga R Yalkin

END © Copyright 2013 Tolga R Yalkin