What is the test for aboriginal title in s. 35(1)?

247. I cannot agree with the Chief Justice, however, that it is essential that a practice be traceable to pre‑contact times for it to qualify as a constitutional right. Aboriginal rights find their source not in a magic moment of European contact, but in the traditional laws and customs of the aboriginal people in question. As Brennan J. (as he then was) put it in Mabo v. Queensland [No. 2] (1992), 175 C.L.R. 1, at p. 58, "Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory." The French version of s. 35(1) aptly captures the governing concept. "Les droits existants ‑‑ ancestraux ou issus de traités --" tells us that the rights recognized and affirmed by s. 35(1) must be rooted in the historical or ancestral practices of the aboriginal people in question. This Court in Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335, adopted a similar approach: Dickson J. (as he then was) refers at p. 376 to "aboriginal title as a legal right derived from the Indians' historic occupation and possession of their tribal lands". One finds no mention in the text of s. 35(1) or in the jurisprudence of the moment of European contact as the definitive all‑or‑nothing time for establishing an aboriginal right. The governing concept is simply the traditional customs and laws of people prior to imposition of European law and customs. What must be established is continuity between the modern practice at issue and a traditional law or custom of the native people. Most often, that law or tradition will be traceable to time immemorial; otherwise it would not be an ancestral aboriginal law or custom. But date of contact is not the only moment to consider. What went before and after can be relevant too.