ABSTRACT
Aboriginal rights have always been regarded as different from other common law rights. They do not take their source or meaning from the philosophies that underlie the western canon of law. The judiciary's understanding that Aboriginal rights do not necessarily correspond to other common law rights is not an entirely recent phenomenon. In fact, judicial recognition of the unique nature of Aboriginal rights may be traced back to the earliest origins of North American Aboriginal rights jurisprudence. In observing that non-native people could hold title to land under Indian law, the court recognized the continued existence of indigenous law, even in the face of Crown assertions of sovereignty. The Supreme Court of Canada settled upon an appropriate interpretive tool to reconcile indigenous and non-native legal perspectives a decade later in Guerin. The courts have sited a small, but perceptible, clearing in the common law for Aboriginal conceptions of their rights.
