The Test
(1) N n EXISTING ABORIGINAL RIGHT
Appellant must demonstrate that she/he is acting pursuant to an existing aboriginal right.
**Onus on claimant**
Requires:(i) aboriginal right
…rejection of rights frozen into patchwork…interpreted flexibly to permit evolution
(ii) unextinguished right in 1982
…test of extinguishment is that sovereign’s intention is clear and plain that is to extinguish
…thus existing means unexinguished, NOT exercisable at a certain time in history
(2) PRIMA FACIE INTERFERENCE
The appellant must establish that there has been a prima facie infringement of such right, that is, does the purpose or effect of the restriction infringe the interests protected by the fishing rights?
**Onus on claimant**
--is the limitation unreasonable?
--does the regulation impose undue hardship?
--does the regulation deny to holders of the right their preferred means of exercising that right?
(3) JUSTIFICATION OF INFRINGEMENT
**Onus on Crown**
Points to consider…
1. is there a valid leg objective… test of compelling and substantial…
For example: conservation…otherwise priority to aboriginal right
Public harm or harm to aboriginal community
Not public interest
2. must act in keeping with the honour of Crown…government’s fiduciary duty to aboriginal peoples
Plus…little infringement as possible to effect objective
fair compensation
consultation
…non-exhaustive list of factors…sensitivity to and respect for rights of aboriginal people