Why is the Van der Peet Decision Important?
The Supreme Court’s 1996 Van der Peet decision is important because it established the legal test for recognizing Aboriginal rights under s. 35 of the Constitution.
Sto:lo Nation member Dorothy Van der Peet was charged under the federal Fisheries Act for selling 10 salmon caught under a food fishery licence. Van der Peet’s defence was that the federal law was invalid because it infringed her section 35 Aboriginal right to sell fish.
A majority of the Court rejected the argument that section 35 Aboriginal rights are based on Indigenous people’s pre-existing legal rights. Instead, it relied on the discredited United States Supreme Court Marshall decisions of the 1830s to conclude that the purpose of section 35 is to protect pre-contact practices, customs and traditions integral to an Indigenous people’s distinctive culture by translating them into Aboriginal rights.
The Court held that the pre-contact exchange of fish for other goods was not a defining or central aspect of Sto:lo society. Instead, it was no more than incidental to fishing for food. Therefore, trading or selling fish did not qualify as an Aboriginal right protected under s. 35. Consequently, Van der Peet was found guilty of violating the Fisheries Act.
Two Supreme Court justices wrote detailed dissenting reasons criticizing the majority of the Court for its ‘frozen rights’ approach to Aboriginal rights and for ignoring the importance of Indigenous legal orders. Their criticisms have been echoed by many critics ever since.
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Bruce McIvor, lawyer and historian, is partner at First Peoples Law LLP. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada. Bruce's ancestors took Métis scrip at Red River in Manitoba. He holds a law degree, a Ph.D. in Aboriginal and environmental history, is a Fulbright Scholar and author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He is a member of the Manitoba Métis Federation.
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First Peoples Law is a law firm dedicated to defending and advancing the rights of Indigenous Peoples in Canada. We work closely with First Nations to defend their Aboriginal title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their members.
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