Indigenous peoples have used section 35 of the Constitution Act to support their rights to resource activities, such as fishing. In the (1990) — the first decision by the Supreme Court to interpret section 35 — an Indigenous person fished contrary to the provisions of federal law. In his defence, he alleged that the right to fish was an immemorial right protected by treaty by virtue of section 35. The Supreme Court upheld the right and set out a code of interpretation for section 35. The court did not set limits on the types of rights that can be categorized as Indigenous rights and emphasized that the rights must be interpreted flexibly in a manner “sensitive to the aboriginal perspective.” The court stated that section 35 only protects rights that were not extinguished (i.e. surrendered) prior to the date the Constitution Act, 1982, came into effect.


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