What is the effect of s. 35 (1) of the Constitution on aboriginal rights?
Manitoba, Canada
The following excerpt is from Estate of Samuel Corrigan, 2013 MBQB 77 (CanLII):
[19] The effect of this provision was explained in Delgamuukw v. British Columbia 1997 CanLII 302 (SCC), [1997] 3 S. C. R. 1010 at para. 133: On a plain reading of the provision, s. 35 (1) did not create aboriginal rights; rather, it accorded constitutional status to those rights which were “existing” in 1982. The provision, at the very least, constitutionalized those rights which aboriginal peoples possessed at common law, since those rights existed at the time s. 35 (1) came into force.
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