Yes. I've heard concerns, but it is not my interpretation of section 2(2). It's the opposite. If you read the first phrase of 2(2) carefully, it says:
This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35
That's pretty clear to me. That's a safeguard of the rights we have currently as indigenous peoples in this country, and not the contrary.
With respect to the other concerns with respect to terra nullius or the doctrine of discovery, I think those are rejected pretty firmly and pretty clearly in the preamble.
In my view, the only thing that's missing in 2(2), to clarify my point, is the fact that we need to add what the Supreme Court of Canada said with respect to aboriginal rights and treaty rights. They are not frozen in time and must continue to evolve.
I would add a section 2(4), after 2(3), that would say the rights of indigenous peoples, including treaty rights, must be interpreted flexibly to permit their evolution over time, and any approach constituting frozen rights must be rejected.
The Supreme Court of Canada in Sparrow said that the phrase “existing" aboriginal rights must be interpreted flexibly to permit their evolution over time. I think, to address the concerns of 2(2), adding a paragraph like this would clarify the situation and the intent of 2(2).