Van der Peet Case
In the R. v. Van der Peet case (1996), the Supreme Court of Canada defined and restricted what constitutes Indigenous rights, as previously defined by the R. v. Sparrow case (1990). Criticized for narrowing the scope of Indigenous rights, the Van der Peet test — a set of criteria established by the court to prove Indigenous rights — stipulates that the Indigenous custom, practice or tradition in question must be integral to the distinctive culture of the Aboriginal group claiming the right and originate from before contact with the Europeans.
Dorothy Van der Peet, a Stó:lō woman from British Columbia, was charged with illegally selling salmon caught under a fishing licence intended only for food and ceremonial purposes. Section 27(5) of the British Columbia Fishery (General) Regulations prohibits the sale of fish caught under this licence to non-Indigenous people.
Van der Peet believed that section 35(1) of the Constitution Act, 1982, which states that “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed,” enshrined her right to sell fish. Van der Peet subsequently challenged the charges in court.
Court Cases and Rulings
A magistrate of the provincial court ruled that Van der Peet’s rights were not infringed upon because section 35(1) of the Constitution Act, 1982, does not include the right for Aboriginal people to sell fish. The judge convicted Van der Peet, who eventually took the case to the Supreme Court of Canada.
In 1996, the majority of the Supreme Court upheld that, while the Stó:lō have the right to fish, their ancestral rights do not include selling fish. In the R. v. Sparrow case (1990), the Supreme Court established criteria for proving Indigenous rights, but the court has since narrowed that definition. It created the Integral to a Distinctive Culture Test, or the Van der Peet test, to prove an Indigenous right. “To constitute an Aboriginal right, an activity must be an element of a custom, practice or tradition forming an integral part of a distinct culture of the Aboriginal group that claims the right in question,” according to the criteria of the test. The Supreme Court also ruled that, in future cases, courts must take into consideration oral histories and Indigenous peoples’ relationship to the land.
Two judges, McLachlin and L’Heureux-Dubé, disagreed with the final ruling and argued that the Stó:lō did have the right to sell fish. They did not feel that it was necessary for the practice of selling fish (or any other custom) to have been established before European contact — it was enough for the custom or practice to have been part of the culture for a substantial period of time. Nevertheless, Van der Peet lost her case.
Like McLachlin and L’Heureux-Dubé, some critics argue that the Van der Peet test narrows the scope of Indigenous rights while simultaneously providing the Crown with the opportunity to extinguish Indigenous rights. Furthermore, the test concentrates on cultural practices of the past rather than those of the present. It ignores the dynamic nature of Indigenous cultures by assuming that only pre-contact practices are vital to the society.
The Van der Peet case is important in Canadian law because the Supreme Court ruling controversially defined and restricted the scope of Indigenous rights in section 35(1) of the Constitution Act, 1982. It also narrowed the definition of rights as established by the Sparrow precedent.
Avigail Eisenberg, “The Distinctive Culture Test,” Human Rights Dialogue: “Cultural Rights.” (2005)
Michael Asch, “From Calder to Van der Peet: Aboriginal Rights and Canadian Law, 1973–1996,” in Indigenous Peoples’ Rights in Australia, Canada & New Zealand, edited by Paul Havemann (Oxford University Press, 1999)