R. v. Van der Peet

SCCInfoBox
case-name=R. v. Van der Peet
full-case-name=Dorothy Marie Van der Peet v. Her Majesty The Queen
heard-date=November 27, 28, 29, 1995
decided-date=August 21, 1996
citations= [1996] 2 S.C.R. 507
docket=23803
history=
ruling= Van der Peet appeal dismissed
ratio=
SCC=1992-1997
Majority=Lamer C.J.
JoinMajority=La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
Dissent=L'Heureux-Dubé J.
Dissent2=McLachlin J.
LawsApplied="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. N.T.C. Smokehouse Ltd." and "R. v. Gladstone".

Van der Peet, a member of the , was charged for selling salmon that she had lawfully caught under the native food fish licence but was forbidden from selling.

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 Court of Appeal.

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 to 2 decision, the Court upheld the verdict. The rights did not extend to commercial fishing as it was not part of their distinctive culture. "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." [para. 46] The Court developed a "Distinctive Culture Test" to determine if a given practice was part of their constitutionally protected rights.

# Courts must identify precisely the nature of the claim being made
# The practices, customs and traditions must have been an integral part of the distinctiveness of their culture prior to colonial contact.

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