Supreme Court of Canada –  2 S.C.R. 507
The Van der Peet case was handed on the same day as Gladstone and Smokehouse. It completes Sparrow, in which the court started to explain the content of aboriginal rights as protected by section 35 of the Constitution Act, 1982.
In Van der Peet, the Supreme Court explains what must be considered to define aboriginal rights recognized and affirmed by section 35.
…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 claiming the right. (par. 46 of the decision).
Do the Sto:lo have an aboriginal right to sell fish caught by them protected by section 35 (1) of the Constitution Act, 1982?
The Sto:lo do not possess an aboriginal right to exchange fish for money, since this practice was not integral to their distinctive culture before contact with the Europeans (7 judges against 2).
Between: Dorothy Marie Van der Peet
And: the Crown of Canada
Interveners: Quebec, the Fisheries Council of British Columbia, the British Columbia Fisheries Survival Coalition and the British Columbia Wildlife Federation, the First Nations Summit, Delgamuukw et al., Howard Pamajewon, Roger Jones, Arnold Gardner, Jack Pitchenese and Allan Gardner
In 1987, Dorothy Marie Van der Peet, member of the Sto:lo Nation of British Columbia, sold 10 salmon caught by her common-law husband under the authorization of an Indian food fish licence.
She was charged with selling fish contrary to the British Columbia Fishery (General) Regulations, which prohibited the sale or barter of fish caught under the relevant licence.
Van der Peet: The restrictions imposed by the provincial regulations infringe her Aboriginal right to sell fish and accordingly were invalid because they violated section 35 (1) of the Constitution Act, 1982.
The Crown of Canada: Her Aboriginal right to fish does not include the right to sell fish.
Provincial Court of British Columbia (1991): The right to sell fish was not included in the Aboriginal right to fish for food and ceremonial purposes.
Supreme Court of British Columbia (1991): The trial judge has been mistaken when assessing the Band’s practices with regard to the commercial exchange of fish. The case should be sent back to trial for the judge to use the correct principles.
British Columbia Court of Appeal (1993): The guilty verdict is restored.
Lamer, La Forest, Sopinka, Gonthier, Cory, Iacobucci, Major
Section 35 recognizes and affirms that Aboriginal people are a distinct people that possess their own land, practices, customs and traditions. Aboriginal rights have always been recognized in common law, but with the arrival of the Constitution Act, 1982, a new approach must be put forward. Aboriginal rights cannot be extinguished.
Distinctive culture and fundamental importance
Aboriginal rights can however be infringed upon if this is justified under the Sparrow criteria. As such, in order for an activity to be recognized as an Aboriginal right, it “must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” (par. 46 of the decision). Judges must consider the special nature of aboriginal rights when assessing the related rights.
To be considered integral, the practice must be of central significance to the group. On the other hand, a distinctive practice is one that characterizes the First Nation in question. For this analysis, we must evaluate the practice, custom or tradition at the time when the group first came into contact with Europeans. Incidental practices that were accessory to more important ones cannot qualify as Aboriginal rights simply because they are dependent on the more important ones.
As a last step, the Court needs to determine whether the evidence shows a continuity of the practices, customs and traditions that existed prior to contact with European society. The evidence simply needs to be directed at demonstrating which aspects of the Aboriginal community and society have their origins prior to contact. It does not require an unbroken chain between current practices, customs and traditions and those existing prior to contact.
“Quality” of the evidence
Lamer notes that a court should not underestimate the evidence presented by Aboriginal claimants simply because that evidence does not conform precisely to the standards used in other contexts. This refers mostly to oral testimony.
Given the facts presented in this case, the trial judge did not appear to have erred in a manner that would justify the Court’s use of its own finding of facts. The exchange of fish for money or other goods was not an integral element of the distinctive Sto:lo culture prior to contact with Europeans since there was no organized commercial activity at that time. Even if the Sto:lo traded with the Hudson Bay Company afterwards, this does not prove a similar activity prior to contact.
The Van der Peet case is part of a trilogy of decisions released on August 21, 1996 pertaining to aboriginal commercial fishery. It is perhaps the most significant decision on the establishment of Aboriginal rights thus far.
The Van der Peet decision represents a shift in the large interpretation of the rights that are protected by section 35. In fact, the change to a narrower definition of aboriginal rights did not go unnoticed and became the basis of the government’s strategy in the Marshall decision (a strict definition of treaty rights) (Desrosiers, 2000). Since the decision affirms that the analysis of Aboriginal rights should be made on a case-by-case basis, the substance of the rights of all Aboriginal groups will have to be addressed on an individual basis.
The approach used by the Supreme Court to evaluate the centrality of a practice was criticized by Aboriginal groups and scholars alike. They felt that non-aboriginal judges cannot fully appreciate aboriginal culture as they may overlook the significance of some aboriginal practices because they are merely incidental in Euro-Canadian society (Barsh and Henderson, 1997: 1000).
In 1998, the Department of Fisheries and Oceans (DFO) developed A New Direction for Canada’s Pacific Salmon Fisheries. This strategy contained guidelines for the conservation and harvesting of fish in the Pacific area. Other policies were adopted to specify the objectives set out in A New Direction. Among them, An Allocation Policy for Pacific Salmon and the Policy for Selective Fishing in Canada’s Pacific Fisheries confirmed the primacy of the conservation objective and the importance of selective harvesting practices as a long-term strategy to reach this objective (Fisheries and Oceans Canada, 2009).
In 2003, DFO announced the implementation of the Aboriginal Aquatic Resource and Oceans Management Program (AAROM) to help aboriginal groups obtain the needed expertise for them to have more efficient input in processes for aquatic resources and oceans management. One of the key goals of AAROM is to help Aboriginal people gain the ability to participate in technical and advisory committees on matters falling within DFO’s mandate, which incorporates fisheries and habitat management and oceans planning and management (Fisheries and Oceans Canada, 2003).
In 2004, the DFO issued its Policy Framework for the Management of Fisheries on Canada’s Atlantic Coast in an effort to develop a consistent and cohesive policy framework for the management of Canada’s East Coast fish stocks mirrored after the one in effect on the Pacific Coast. This was done after a review of fisheries policies in place, and included consultations with provinces/territories, Aboriginal interests, the fishing industry and other interested parties (Fisheries and Oceans Canada, 2004).
In 2012, the conservative government of Stephen Harper adopted two omnibus bills (C-38 and C-45) which contained more and 400 pages modifying 44 and 70 federal laws. These changes substantially modified the Canadian fisheries regime, as well as its protection of waterways. C-45 denied protection to many natural habitats for fish. Neither recognizes aboriginal commercial fisheries. These bills were in part responsible for the Idle no More movement.
Oral history and traditional knowledge
The decision also states that the rules of evidence must take into account the oral history of Aboriginal people when assessing their rights. Thus, Aboriginal “traditional knowledge” is implicitly recognized by the courts. Federal legislation regarding species at risk and environmental assessment contains provisions for the consideration of traditional ecological knowledge. Some authors maintain that of all policy arenas, environmental assessment is certainly the best thought out (Usher, 2000).
Allain Jane May. 1996. Aboriginal Fishing Rights: Supreme Court Decisions. Parliamentary Research Branch of the Library of Parliament. Report prepared for Members of the Senate and House of Commons. On-line. http://www.parl.gc.ca/information/library/PRBpubs/bp428-e.htm. Consulted August 24, 2009.
Barsh Russel Lawrence and James Youngblood Henderson. 1997. The Supreme Court’s Van der Peet Trilogy: Naïve Imperialism and Ropes of Sand, McGill Law Journal 442: 993-1009.
Desrosiers Nathalie. 2000. Du dialogue au monologue : Un commentaire sur l’arrêt R. c. Marshall, in Dalhousie Law Journal 23: 149-166.
Fisheries and Oceans Canada. 2003. Aboriginal Aquatic Resource and Oceans Management Program, and Aboriginal Inland Habitat Program. On-line. http://www.dfo-mpo.gc.ca/media/back-fiche/2003/hq-ac99a-eng.htm. Consulted August 24, 2009.
Fisheries and Oceans Canada. 2004. Atlantic Fisheries Policy Review. On-line. http://www.dfo-mpo.gc.ca/afpr-rppa/home_e.htm. Consulted August 24, 2009.
Fisheries and Oceans Canada. 2009. Policies, Reports and Agreements. On-line. http://www.pac.dfo-mpo.gc.ca/fm-gp/species-especes/salmon-saumon/pol/index-eng.htm. Consulted August 24, 2009.
Indian and Northern Affairs Canada. 2008. Fact Sheet: The Nisga’a Treaty. On-line. http://www.ainc-inac.gc.ca/ai/mr/is/nit-eng.asp. Consulted August 24, 2009.
Secrétariat des affaires autochtones. 2009. The Innu: Agreement-in-principle. On-line. http://www.versuntraite.com/entente_de_principe/droits_ancestraux_en.htm. Consulted August 24, 2009.
Usher Peter J. 2000. Traditional Ecological Knowledge in Environmental Assessment, Arctic 53 (2): 183-193.