R v Van der Peet
Court: Supreme Court of Canada
Citation:  2 S.C.R 507
TAGS: Aboriginal Rights; Fisheries
The test for defining Aboriginal rights recognized and affirmed in s.35(1) of the Constitution Act 1982 must identify the practices, traditions and customs integral to distinctive Aboriginal societies that existed in North America prior to contact with Europeans.
Constitution Act 1982 s. 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
A member of the Sto:lo First Nation, Dorothy Van der Peet, was charged with selling fish caught under the authority of an Indian food fish license. At the time, British Columbia fishery regulations prohibited selling or bartering any fish caught under the authority of an Indian food fish license. Van der Peet did not contest these facts. Her defense was that in selling fish she was exercising an existing Aboriginal right to sell fish and that the regulations prohibiting selling fish under the authority of an Indian food fish license are invalid because they violate s. 35(1) of the Constitution Act 1982.
A majority of the Supreme Court of Canada held that the Aboriginal rights of the Sto:lo First Nation do not include the right to sell or barter fish. Following the test set out in this case, selling fish was not found to be a practice, tradition or custom integral to the distinctive Sto:lo First Nation. Van der Peet was convicted for selling fish caught under the authority of a food fish license contrary to British Columbia fishery regulations.
Why this Case Matters:
R v Van der Peet sets out the elements to be considered in defining Aboriginal rights recognized and affirmed in s.35(1) of the Constitution Act 1982.
In order to determine if a claim for s.35(1) Aboriginal rights meets the test of being integral to the distinctive culture of the Aboriginal Group claiming the right, the court in R v Van der Peet gave the following factors:
(1) Courts must take into account the perspective of Aboriginal peoples themselves,
(2) Courts must identify precisely the nature of the claim being made in determining whether an Aboriginal claimant has demonstrated the existence of an Aboriginal right,
(3) In order to be an integral, a practice, custom or tradition must be of central significance to the Aboriginal society in question,
(4) The practices, customs and traditions which constitute Aboriginal rights are those which have continuity with traditions, customs and practices that existed prior to contact,
(5) Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating Aboriginal claims,
(6) Claims to Aboriginal rights must be adjudicated on a specific rather than general basis,
(7) For a practice, tradition or custom to constitute an Aboriginal right it must be of independent significance to the Aboriginal culture in which it exists,
(8) The integral to a distinctive culture test requires that a practice, custom of tradition be distinctive; it does not require that that practice, custom or tradition be distinct,
(9) The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence, and
(10) Courts must take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and culture of Aboriginal peoples.
R v Van der Peet also stipulates that a purposive approach to s.35(1) of the Constitution Act 1982 must be undertaken. Due to the Crown’s fiduciary duty to Aboriginal peoples and its implications for the honour of the Crown, legislation protecting the interests of Aboriginal peoples must be given a generous and liberal interpretation.
Supreme Court Judgment: