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Indigenous Law Bulletin 4:2


Measured by judicial decisions, 1996 was by far the most significant year for Aboriginal rights in Canada since 1990, when the Supreme Court of Canada, in R v Sparrow, first examined the effect of recognition and affirmation of Aboriginal and treaty rights in section 35(1) of the Constitution Act 1982. The Sparrow decision acknowledged that section 35(1) provides unextinguished Aboriginal rights with constitutional protection against legislative infringement, unless the infringement can be justified by a strict test, outlined below, which the Supreme Court created. However, that decision did not address the vital question of how Aboriginal rights are to be identified and defined. In 1996, the Court was confronted with that question, and answered it in a way that has very serious consequences for Aboriginal rights.