R. v. Van der Peet

Supreme Court of Canada – [1996] 2 S.C.R. 507

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British Columbia Aboriginal rightsTrade

Quote

…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).

Issue

Do the Sto:lo have an aboriginal right to sell fish caught by them protected by section 35 (1) of the Constitution Act, 1982?

Decision

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).

Parties

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

Facts

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.

Arguments

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.

Decision of the lower courts

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.

Reasons for Judgement

Jury

Lamer, La Forest, Sopinka, Gonthier, Cory, Iacobucci, Major

Reason

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.

Continuity

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.

Impact

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).

Governmental policies

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).