What is the test for establishing an aboriginal right under Section 35 of the Constitution?
British Columbia, Canada
The following excerpt is from R. v. Sauls, 2002 BCPC 638 (CanLII):
As well reference is made to Taku River Tlinglit First Nation v. Chief Mine Project (2002) B.C.C.A. Number 59 where at paragraph 183 the court said: While it is so that the onus of proving a prima facie infringement of an aboriginal right under Section 35(1) of the Constitution Act, 1982, lies on the individual or group challenging the 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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