R v Van der Peet

Van der Peet established the test for what counts as an Aboriginal right under s.35(1). To qualify, the practice, custom or tradition must be integral to the distinctive culture of the Aboriginal group claiming the right and must have existed prior to European contact.

Van der Peet, a member of the Sto:lo Nation, was charged with selling salmon contrary to her food-fishing licence. She claimed an Aboriginal right to sell salmon for commercial purposes.

What is the test for an Aboriginal right under s.35(1)?

Sale of salmon in this case did not meet the test. Conviction upheld.

To qualify as an Aboriginal right, the practice, custom or tradition must (1) be integral to the distinctive culture of the Aboriginal group claiming it, and (2) have existed prior to contact with European societies. The court must take into account the perspective of Aboriginal peoples themselves and characterise the right at an appropriate level of generality.

Lamer CJ articulated a 10-factor framework. Pre-contact origin distinguishes Aboriginal rights from rights generally; integral-to-distinctive-culture distinguishes them from incidental practices. The court rejected commercial sale on the facts because the Sto:lo had not engaged in commercial sale of fish at a level that made it integral to their culture pre-contact.

Foundational rights-test case. Heavily criticised by L'Heureux-Dubé and McLachlin JJ in concurrence/dissent for "frozen rights" effect. Subsequent cases (Mitchell, Sappier, Lax Kw'alaams) refine application but Van der Peet remains the framework.

R v Van der Peet, [1996] 2 SCR 507, 1996 CanLII 216 (SCC).

Lamer CJ, La Forest J, L'Heureux-Dubé J, Sopinka J, Gonthier J, Cory J, McLachlin J, Iacobucci J, Major J