What is the Aboriginal Right Claimed?
14. Before we can address the question of whether an aboriginal right has been established, we must first characterise the right claimed. The event giving rise to litigation merely represents an alleged exercise of an underlying right; it does not, in itself, tell the scope of the right claimed. Therefore it is necessary to determine the nature of the claimed right. At this initial stage of characterisation, the focus is on ascertaining the true nature of the claim, not assessing the merits of this claim or the evidence offered in its support. 15. In Van der Peet, supra, at p 53, the majority of this Court provided three factors that should guide a court’s characterisation of a claimed aboriginal right: (1) the nature of the action which the applicant is claiming was done pursuant to an aboriginal right; (2) the nature of the governmental legislation or action alleged to infringe the right, ie the conflict between the claim and the limitation; and (3) the ancestral traditions and pract
