aboriginal rights:
refer to practices, traditions or customs ("activity[ies]") which
are integral to the distinctive culture of an aboriginal society and were
practiced prior to European contact, meaning they were rooted in the pre-contact
society (the date is no longer prior to 1846, the date British sovereignty
was asserted in B.C.);
must be practiced for a substantial period of time to have formed an integral
part of the particular aboriginal society's culture;
must be an activity that is a central, defining feature which is independently
significant to the aboriginal society;
must be distinctive (not unique), meaning it must be distinguishing and characteristic
of that culture;
must be based on an actual activity related to a resource: the significance
of the activity is relevant but cannot itself constitute the claim to an aboriginal
right;
must be given a priority after conservation measures (not amounting to an
exclusive right);
must meet a continuity requirement, meaning that the aboriginal society must
demonstrate that the connection with the land in its customs and laws has
continued to the present day;
may be the exercise in a modern form of an activity that existed prior to
European contact;
may include the right to fish, pick berries, hunt and trap for sustenance,
social and ceremonial purposes (for example, ceremonial uses of trees and
wildlife locations);
may include an aboriginal right to sell or trade commercially in a resource
where there is evidence to show that the activity existed prior to European
contact "on a scale best characterized as commercial" and that such
activity is an integral part of the aboriginal society's distinctive culture;
may be adapted in response to the arrival of Europeans if the activity was
an integral part of the aboriginal society's culture prior to European contact;
do not include an activity that solely exists because of the influence of
European contact; and
do not include aspects of aboriginal society that are true of every society
such as eating to survive.
Aboriginal rights arise from the prior occupation of land, but they also
arise from the prior social organization and distinctive cultures of aboriginal
peoples on that land. Treaty negotiations will translate aboriginal rights
into contemporary terms.