R. v. Van der Peet
| R v Van der Peet | |
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| Hearing: November 27, 28, 29, 1995 Judgment: August 21, 1996 |
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| Full case name | Dorothy Marie Van der Peet v Her Majesty The Queen |
| Citations | [1996] 2 S.C.R. 507 |
| Docket No. | 23803 |
| Ruling | Van der Peet appeal dismissed |
| Court Membership | |
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Chief Justice: Antonio Lamer Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major |
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| Reasons given | |
| Majority | Lamer C.J., joined by La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. |
| Dissent | L'Heureux-Dubé J. |
| Dissent | McLachlin J. |
| Laws Applied | |
| R. v. Sparrow, [1990] 1 S.C.R. 1075 | |
R v Van der Peet, [1996] 2 S.C.R. 507 is a leading case on Aboriginal rights under section 35 of the Constitution Act, 1982. The Supreme Court 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 NTC Smokehouse Ltd and R v Gladstone.
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 British Columbia 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.
In a 7–2 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:
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."
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