[para19] In R. v. Sparrow, [1990] C.N.L.R. 160 (S.C.C.) at pp. 160-1, the following observations are noteworthy:
"The approach to be taken with respect to interpreting the meaning of s. 35(1) is derived from general principles of constitutional interpretation, principles relating to aboriginal rights, and the purposes behind the constitutional provision itself. The nature of s. 35(1) itself suggests that it is to be construed in a purposive way. When the purposes of the, affirmation of aboriginal rights are considered, it is clear that a generous, liberal interpretation of the words in the constitutional provision is demanded.Ó (My emphasis)
[para20] Courts have applied a purposive analysis in combination with several general principles when dealing with the legal relationship between the Crown and Aboriginal peoples. These principles include
(a) a court must give a generous and liberal interpretation when analyzing the purposes underlying s. 35(1), all treaties, s. 35 itself, and other statutory and constitutional provisions protecting the interests of Aboriginal peoples;
(b) the nature of the relationship between the Crown and Aboriginal peoples is fiduciary thereby placing the honour of the Crown at stake;
(c) any doubt or ambiguity must be resolved in favour of the Aboriginal peoples;
(d) courts must be sensitive to the Aboriginal perspective with respect to the rights at stake and
(e) since 1982, rights cannot be extinguished but can only be regulated or infringed with the justificatory test as laid out by the Supreme Court in Sparrow and subsequent cases.
(See: R. v. Van der Peet, [1996] 4 C.N.L.R. 177 at 192-193; R. v. Sparrow (supra) at 179 and 182; Simon v. The Queen [1986] 1 C.N.L.R. at 153 and 167; Nowegijick v. The Queen, [1982] 2 C.N.L.R. 89 and 94; and R. v. Sutherland [1980] 3 C.N.L.R. 71 at 80.)
[para21] Chief Justice Lamer in Van der Peet (supra) at p. 200 expressed the dual purpose of s. 35 as follows: "... the Aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognize, the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive Aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. The content of Aboriginal rights must be directed at fulfilling both of these purposes;."
[para22] Aboriginal rights are collective rights although each member of the group has a personal right to exercise them. In Sparrow (supra), it was held that Aboriginal hunting rights are not traditional property rights. They are rightsheld by a collective and are in keeping with the culture and existence of the group. (See: Pasco v. C.N.R. Co. (1989), 56 D.L.R. (4th) 404 at 410 (B.C.C.A.); Twinn v. Canada, [1987] 2F.C. 450 at 462 (F.C.T.D.); and Sparrow (supra) at 182.)
[para23] Metis have been recognized as an Aboriginal people under
the Constitution Act, 1982.
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