How have aboriginal rights been treated in common law in Canada?
British Columbia, Canada
The following excerpt is from Delgamuukw v. British Columbia, 1993 CanLII 4516 (BC CA):
I turn now to the third consideration. Indian people in Canada, now and belatedly, have all the same rights as the settling peoples under the Canadian legal system. Aboriginal rights are additional rights which only the aboriginal peoples have. Those additional rights originate through aboriginal occupation, possession, use and enjoyment of land, and through the institutions of aboriginal society. They became part of the common law at the time of Sovereignty. In their modern form, they are rights which Indian people have, which no one else has. The recognition, affirmation and guarantee of aboriginal rights under s.35 of the Constitution Act, 1982 does not take away from indigenous people the common law rights enjoyed by every Canadian. (See Mabo v. Queensland per Brennan, J. at pp. 25-30).
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