The Conflation of the Justification Framework for Infringement of Aboriginal Rights with the Oakes Test in Tsilhqot’in Nation v British Columbia

In Tsilhqot'in Nation v British Columbia, the Supreme Court of Canada replaced test for justification Aboriginal rights infringements with a framework that is nearly indistinguishable from Oakes test. The goal this paper to show development in law, and thus current framework, undesirable erroneous. This submits four reasons arrive at conclusion. First, proposed mirrors rrequired prove an infringement rights, whose burden proof falls on Indigenous party, hence shifts entire onus proving Crown party. Second, conflation makes effectively impossible, which may cause reluctance amongst courts recognize rights. Third, are fundamentally different Charter should not be subjected designed Charter. Fourth, incorporation into runs contrary established principles constitutional interpretation. These merit abandoning Tsilhqot'in. Otherwise, area law will riddled doctrinal flaws interests suffer.