R. v. Van der Peet, [1996] 2 S.C.R. 507 is a leading case on aboriginal

Aboriginal peoples in Canada

Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....

 rights under section 35

Section Thirty-five of the Constitution Act, 1982

Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...

 of the Constitution Act, 1982

Constitution Act, 1982

The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...

. The Supreme Court

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 held that aboriginal fishing rights did not extend to commercial selling of fish. From this case came the Van der Peet test for determining if an aboriginal right exists. This is the first of three cases known as the Van der Peet trilogy which included R. v. N.T.C. Smokehouse Ltd. and R. v. Gladstone

R. v. Gladstone

R. v. Gladstone, [1996] 2 S.C.R. 723 is a leading Supreme Court of Canada decision on non-treaty aboriginal rights under section 35 of the Constitution Act, 1982...

.

Dorothy Van der Peet, a member of the Stó:lō Nation, was charged for selling salmon that Steven and Charles Jimmy (Charles being her common-law husband) had lawfully caught under the native food fish licence but was forbidden from selling.

At trial, the judge held that the aboriginal right to fish for food and ceremonial purposes did not extend to the right to sell fish commercially. A summary appeal judge overturned the verdict, but it was subsequently overturned at the Court of Appeal.

The issue before the Court was whether the law preventing sale of the fish infringed Van der Peet's aboriginal rights under section 35.

Opinion of the Court

In a seven to two decision, the Court upheld the Court of Appeal's decision. In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right." The exchange of fish for money or other goods did not constitute a practice, custom or tradition that was integral to Sto:lo culture.


The Court developed an "Integral to a Distinctive Culture Test" to determine how to define an Aboriginal right as protected by s.35(1) of the Constitution Act, 1982. The Test has ten main parts:

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 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 the practices, customs and traditions 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, custom or tradition 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 or 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.
   
10. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples
    

Criticism

Canadian Aboriginal Law scholar John Borrows writes:

"With this test, as promised, Chief Justice Antonio Lamer has now told us what Aboriginal means. Aboriginal is retrospective. It is about what was, 'once upon a time,' central to the survival of a community, not necessarily about what is central, significant, and distinctive to the survival of these communities today. His test has the potential to reinforce troubling stereotypes about Indians."

See also

• The Canadian Crown and Aboriginal peoples
• Numbered Treaties
  Numbered Treaties
  The numbered treaties are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning Monarch of Canada from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements...
  
  
• Indian Act
  Indian Act
  The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
  
  
• Section Thirty-five of the Constitution Act, 1982
  Section Thirty-five of the Constitution Act, 1982
  Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
  
  
• Indian Health Transfer Policy (Canada)
  Indian Health Transfer Policy (Canada)
  The Indian Health Transfer Policy of Canada, provided a framework for the assumption of control of health services by Aboriginal Canadians and set forth a developmental approach to transfer centred on the concept of self-determination in health. Through this process, the decision to enter into...