What is the test for establishing an aboriginal right under s. 35(1) of the Constitution Act, 1982?
British Columbia, Canada
The following excerpt is from R. v. Billy et al, 2004 BCSC 1474 (CanLII):
The appellants also rely on Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (2002), 211 D.L.R. (4th) 89, 2002 BCCA 59 where the majority held at ¶ 183: While it is so that the onus of proving a prima facie infringement of an aboriginal right under s. 35(1) of the Constitution Act, 1982 lies on the individual or group challenging legislation or regulations, it does not logically follow that until an aboriginal right has been established in court proceedings, the right does not exist.
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