Duhaime's Law Dictionary

Existing Aboriginal and Treaty Rights Definition:

Canada: those aboriginal and treaty rights as they existed on April 17, 1982.

Referred to in the Canadian Constitution, more properly, the Constitution Act, 1982, (U.K.) c. 11, or the Chatre of Rights and Freedoms, at §35:

"(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada."(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons."

In R v Nicholas, Justice Dickson of the New Brunswick Court of Queen's Bench wrote, at ¶9:

"I am of the opinion that use of the expression existing aboriginal and treaty rights in §35(1) can only be taken to mean those rights as they existed on April 17, 1982..."

In R v Machatis, Justice Andrekson of the Alberta Court of Queen's Bench wrote at ¶24:

"There is general agreement among scholars concerned with the rights of aboriginals in Canada that a treaty right which has not been extinguished, but merely limited by federal legislation, is an existing treaty right within the meaning of s. 35(1). A treaty right that has been extinguished is incapable of revival."


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