R v Van der Peet

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R v Van der Peet
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Hearing: November 27, 28, 29, 1995
Judgment: August 21, 1996
Full case nameDorothy Marie Van der Peet v Her Majesty The Queen
Citations [1996] 2 S.C.R. 507
Docket No. 23803
RulingVan der Peet appeal dismissed
Court Membership
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
Reasons given
MajorityLamer C.J., joined by La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
DissentL'Heureux-Dubé J.
DissentMcLachlin 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 .

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, including re-naming it the Constitution Act, 1867.. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.

Supreme Court of Canada highest court of Canada

The Supreme Court of Canada is the highest court of Canada, 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. Its decisions are the ultimate expression and application of Canadian law and binding upon all lower courts of Canada, except to the extent that they are overridden or otherwise made ineffective by an Act of Parliament or the Act of a provincial legislative assembly pursuant to section 33 of the Canadian Charter of Rights and Freedoms.

<i>R v Gladstone</i>

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. The Court modified the Sparrow test for the extinguishment of Aboriginal rights to give more deference to the government in protecting commercial fishing rights.

Contents

On September 11, 1987, Steven and Charles Jimmy caught sockeye salmon near Chilliwack. The men were both holders of valid native food fish licenses, so the fish were legally caught, but they were forbidden from selling the fish. Charles Jimmy brought the fish to his common-law partner, Dorothy Van der Peet, a member of the Stó:lō Nation, and she cleaned the fish and set them on ice. Van der Peet was visited by Marie Lugsdin, a non-Indigenous person, who offered to purchase ten fish at $5 a piece, for a total of $50. Van der Peet agreed and was later charged, under British Columbia Fishery Regulations, with having unlawfully sold fish caught under a food (only) fish license. [1] [2]

Chilliwack City in British Columbia, Canada

Chilliwack is the 7th largest agglomeration in British Columbia, Canada. Historically an agricultural community, most of its 101,512 residents are now city-dwellers. Chilliwack is the seat of the Fraser Valley Regional District and its second largest city. This city is surrounded by mountains and recreational areas such as Cultus Lake and Chilliwack Lake Provincial Parks. It is located 102 kilometres southeast of Vancouver. There are many outdoor activities in the area, including hiking, horseback riding, archery, biking, camping, fishing, and golf.

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.

British Columbia Court of Appeal court of appeal of the province of British Columbia in Canada

The British Columbia Court of Appeal (BCCA) is the highest appellate court in the province of British Columbia, Canada. It was established in 1910 following the 1907 Court of Appeal Act.

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 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." [3] 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." [4]

See also

Numbered Treaties series of treaties between the Government of Canada and the First Nations

The Numbered Treaties are a series of eleven treaties signed between the First Nations, one of three groups of indigenous peoples in Canada, and the reigning monarch of Canada from 1871 to 1921. These agreements were created to allow the Government of Canada to pursue settlement and resource extraction in the affected regions, which include modern-day Alberta, British Columbia, Manitoba, Ontario, Saskatchewan, and the Northwest Territories. These treaties expanded the Dominion of Canada with large tracts of land in exchange for promises made to the indigenous people of the area. These terms were dependent on individual negotiations and so specific terms differed with each treaty.

The Indian Act is a Canadian act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves. First passed in 1876 and still in force with amendments, it is the primary document which defines how the Government of Canada interacts with the 614 First Nation bands in Canada and their members. Throughout its long history the Act has been an ongoing subject of controversy and has been interpreted in different ways by both Aboriginal Canadians and non-Aboriginal Canadians. The legislation has been amended many times, including "over twenty major changes" made by 2002.

Related Research Articles

Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Related is the idea of prescription; a right enjoyed through long custom rather than positive law.

The Canadian legal system has its foundation in the English common law system, inherited from being a former colony of the United Kingdom and later a Commonwealth Realm member of the Commonwealth of Nations. The legal system is bi-jurisdictional, as the responsibilities of public and private law are separated and exercised exclusively by Parliament and the provinces respectively. Quebec, however, still retains a civil system for issues of private law.

Court system of Canada an article about the court system of Canada

The court system of Canada forms the judicial branch of government, formally known as "The Queen on the Bench", which interprets the law and is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature, while others are provincial or territorial.

<i>R v Sparrow</i> decision of the Supreme Court of Canada

R v Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35(1) of the Constitution Act, 1982. The Court held that Aboriginal rights, such as fishing, that were in existence in 1982 are protected under the Constitution of Canada and cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada.

Section 35 of the Constitution Act, 1982 provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. The section does not define the term "aboriginal rights" or provide a closed list; some examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land and the right to enforcement of treaties. There remains a debate over whether the right to indigenous self-government is included within section 35. As of 2006 the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.

<i>Delgamuukw v British Columbia</i> decision of the Supreme Court of Canada

Delgamuukw v British Columbia, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen, is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title in Canada. The Gitxsan and Wet'suwet'en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometres in northwest British Columbia. The plaintiffs lost the case at trial, but the Supreme Court of Canada ordered a new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982, defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation.

Section 25 of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter. While section 25 is also the Charter section that deals most directly with Aboriginal peoples in Canada, it does not create or constitutionalize rights for them.

<i>R v Marshall; R v Bernard</i>

R v Marshall; R v Bernard 2005 SCC 43 is a leading Aboriginal rights decision of the Supreme Court of Canada where the Court narrowed the test from R. v. Marshall for determining the extent of constitutional protection upon Aboriginal practices. The Court held that there was no right to commercial logging granted in the "Peace and Friendship treaties of 1760", the same set of treaties where the right to commercial fishing was granted in the R. v. Marshall decision. This decision also applied and developed the test for aboriginal title from Delgamuukw v British Columbia.

<i>R v Pamajewon</i>

R v Pamajewon, [1996] 2 S.C.R. 821, is a leading Supreme Court of Canada decision on Aboriginal self-government under section 35(1) of the Constitution Act, 1982. The Court held that the right to self-government, if it exists, is subject to reasonable limitations and excluded the right to control high-stakes gambling.

<i>Mitchell v MNR</i>

Mitchell v MNR, [2001] 1 S.C.R. 911 is a leading Supreme Court of Canada decision on aboriginal rights under section 35(1) of the Constitution Act, 1982. The court held that Mitchell's claim to an aboriginal right to import goods across the Canada–US border was invalid as he was unable to present enough evidence showing that the importation was an integral part of the band's distinctive culture.

<i>R v Badger</i>

R v Badger, [1996] 1 S.C.R. 771 is a leading Supreme Court of Canada decision on the scope of aboriginal treaty rights. The Court set out a number of principles regarding the interpretation of treaties between the Crown and aboriginal peoples in Canada.

<i>Kruger v R</i>

Kruger v R, [1978] 1 S.C.R. 104, was a decision by the Supreme Court of Canada on the relationship between the Indian Act and provincial game laws. The Indian Act is a federal law enacted under the British North America Act, 1867, which gives jurisdiction over Aboriginals to the federal government. The Court found that the Indian Act's statement that provincial laws may apply to Aboriginal peoples in Canada as long as they apply to other people protects laws even if these laws affect Aboriginals more than others.

Aboriginal title Concept in common law of indigenous land rights persisting after colonization

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.

R v Marshall [1999] 3 S.C.R. 456 and R v Marshall [1999] 3 S.C.R. 533 are two decisions given by the Supreme Court of Canada on a single case regarding a treaty right to fish.

R. v. Powley2003 SCC 43, commonly called the Powley ruling, is a Supreme Court of Canada case defining Métis Aboriginal rights under section 35(1) of the Constitution Act, 1982.

<i>Paul v British Columbia (Forest Appeals Commission)</i>

Paul v British Columbia , 2003 SCC 55, is a leading Supreme Court of Canada decision in administrative law and aboriginal law. The case stands for the proposition that a provincial administrative actor granted the power to determine questions of law may adjudicate matters within federal legislative competence, including s. 35 aboriginal rights matters.

<i>S v Makwanyane</i>

S v Makwanyane and Another was a landmark 1995 judgement of the Constitutional Court of South Africa. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution. The court's ruling invalidated section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any similar provisions in any other law in force in South Africa. The court also forbade the government from carrying out the death sentence on any prisoners awaiting execution, ruling that they should remain in prison until new sentences were imposed. Delivered on 6 June, this was the newly established court's "first politically important and publicly controversial holding."

The Coast Salish people of the Canadian Pacific coast depend on salmon as a staple food source, as they have done for thousands of years. Salmon has also served as a source of wealth and trade and is deeply embedded in their culture, identity, and existence as First Nations people of Canada. Traditional fishing is deeply tied to Coast Salish culture and salmon were seen "as gift-bearing relatives, and were treated with great respect" since all living things were once people according to traditional Coast Salish beliefs. Salmon are seen by the Coast Salish peoples are beings similar to people but spiritually superior.

References

  1. ↑ Brent Mudry, Hunters bag rights in appeal court, Windspeaker 11:8 (1993)
  2. ↑ Thomas D. Marshall, Van Der Peet Revisited: A second look at the ‘Relevant Time’ Requirement, Masters of Laws Major Paper, UOttawa
  3. ↑ para. 46
  4. ↑ John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: U of Toronto Press, 2002) at 60.
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