R. v. Van der Peet 
Dorothy Van der Peet, a member of the Stó:lō First Nation in British Columbia, was charged with selling salmon that had been caught under a food-fishing license. Such a license permitted Aboriginal people to fish solely for the purposes of sustenance and ceremonial use, and prohibited the sale of fish to non-Aboriginal people. Van der Peet challenged the charges, arguing that as an Aboriginal person, her right to sell fish was protected under Section 35 of the Constitution Act.
The provincial court ruled that Van der Peet’s right to sell fish was not protected by Section 35, as selling fish did not constitute an “existing” Aboriginal right. This ruling was subsequently overturned by a summary judge, but was later reinstated by the Court of Appeal. In 1996, the Supreme Court upheld the Court of Appeal’s finding, ruling that while fishing constitutes an Aboriginal right, the sale of such fish does not. Despite Stót:lō peoples’ traditional practice of engaging in complex trade and barter relationships with other First Nations, the Court ruled that trade in salmon did not amount to an Aboriginal right. The Court’s decision thus went beyond the earlier Sparrow ruling (1990), to define particular Aboriginal rights regarding fishing. The ruling also resulted in what is known today as the Van der Peet Test, or the “Integral to a Distinctive Culture Test,” which determines how an Aboriginal right is to be defined. Specifically, the right must be proven to be integral to the culture of the claimant. The test outlines ten criteria that must be met in order for a practice to be affirmed and protected as an Aboriginal right pursuant to Section 35. These ten criteria are as follows:
- Courts must take into account the perspective of Aboriginal peoples themselves;
- 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;
- In order to be integral a practice, custom or tradition must be of central significance to the Aboriginal society in question;
- 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;
- Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating Aboriginal claims;
- Claims to Aboriginal rights must be adjudicated on a specific rather than general basis;
- 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;
- 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;
- 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;
- Courts must take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal peoples.1
The Supreme Court’s ruling and the subsequent adoption of the Van der Peet test are regarded as problematic by critics who point out that, by further defining Aboriginal rights, the test circumscribes the scope of Aboriginal rights as set out by the previous test outlined in R. v. Sparrow.2 Some critics view this as enabling the Crown to extinguish rights at the point of definition.
Critics of the Van der Peet test also point out that the test situates Aboriginal cultural practices in the past. Critics argue that both the ruling and the test rely on the notion that Aboriginal cultures and traditions are static and unchanging, and ignore the inherently dynamic, adaptive nature of culture. Legal experts and Aboriginal leaders have further criticised the court system for being ethnocentric, and failing to apply the same criteria to non-Aboriginal populations.3 To do so would mean that only pre-contact European practices, for example, would be considered integral to Euro-Canadian culture.
By Erin Hanson & Tanisha Salomons
Supreme Court of Canada, R. v. Van der Peet,  2 S.C.R. 507. Available online: http://csc.lexum.org/en/1996/1996scr2-507/1996scr2-507.html
Asch, Michael. “From Calder to Van der Peet: Aboriginal Rights and Canadian Law, 1973-96.” In Indigenous Peoples’ Rights in Australia, Canada, & New Zealand, edited by Paul Havemann. Oxford: Oxford University Press, 1999: 428-445.
Barsh, Russel Lawrence and James Youngblood Henderson. “The Supreme Court’s Van der Peet Triology: Native Imperialism and Ropes of Sand.” McGill Law Journal. 42 (1997): 998-1009. Available online at: http://lawjournal.mcgill.ca/documents/42.BarshHenderson.pdf
Eisenberg, Avigail. “The Distinctive Culture Test.” Human Rights Dialogue: “Cultural Rights.” 2.12 (2005). Available online at: http://www.cceia.org/resources/publications/dialogue/2_12/section_3/5149.html
Lambert, Douglas . “Van der Peet and Delgamuukw: Ten Unresolved Issues.” University of British Columbia Law Review. 32 (1998): 249-270.
1 Supreme Court of Canada, R. v. Van der Peet, 2 S.C.R. 507. Decision available online at: http://csc.lexum.umontreal.ca/en/1996/1996scr2-507/1996scr2-507.html
2 Russell Lawrence Barsh & James Youngblood Henderson. “The Supreme Court’s Van der Peet Triology: Native Imperialism and Ropes of Sand,” McGill Law Journal 42 (1997), 998.
3 Eisenberg, Avigail. “The Distinctive Culture Test.” Human Rights Dialogue: “Cultural Rights.” 2.12 (2005). Accessed online: http://www.cceia.org/resources/publications/dialogue/2_12/section_3/5149.html