The Supreme Court ruled in R. v. Sparrow[4] that, before 1982 (when section 35 came into effect), Aboriginal rights existed by virtue of the common law.
This was developed in R. v. Van der Peet[5] where Chief Justice Lamer's majority decided that to be considered an Aboriginal right, a practice must have been integral to the distinctive nature of the culture prior to contact by Europeans.
As part of the historical relationship between them, any time the government is interacting with Aboriginal people the honour of the crown is said to be at stake.
[6] Flowing from the honour principle is a duty on the Crown to consult with Aboriginals in any industry activities.
[8] The duty is engaged when "the Province has knowledge, real or constructive, of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect them.
"[9] The determination of such a duty depends both on the strength of the right that is being encroached upon as well as the negative impact and gravity of the government's conduct.
Professor Kent McNeil has written it could be seen as meaning section 35 allows for Aboriginal self-government, while the Charter is concerned with more individual rights.
[12] Professor Peter Hogg has argued there are negative and positive effects of excluding section 35 from the Charter.