Dorothy Van der Peet, a member of the Stó:lō Nation, was charged for selling ten salmon that Charles Jimmy (her common-law husband) and his brother Steven had caught under their native food fishing licence. Under the licence Jimmy was forbidden from selling his catch.
At trial, the judge held that the aboriginal right to fish for food did not extend to the right to sell fish commercially. This was overturned at summary appeal but the conviction was restored at the Court of Appeal.
- What is the test for determining an "aboriginal right" under 35 of the Charter?
L'Heureux-Dubé and McLachlin, in the dissent, argue that the common law should not be given equal weight when dealing with aboriginal issues due to the special fiduciary relationship between the Crown and aboriginal peoples. They also argue that 35(1) is meant to protect the "distinctive culture" of aboriginals, and that in order to accomplish this you cannot treat aboriginal rights as frozen in time, but rather reflective of the existing culture. The question of whether a right is "distinctive" is a question of fact that must be determined by a judge in each individual case. Both justices also stress the importance of continuity with a historic practice and the modern right asserted. L'Heureux-Dubé finds that there was not enough evidence to make a judgment and orders a new trial, while McLachlin finds that the Crown did not sufficiently justify the regulation of the aboriginal right and that the appeal must be allowed.
Lamer first sets out a number of general legal principles that are applicable to disputes involving aboriginal peoples, including the special fiduciary relationship between aboriginal peoples and the Crown and that 35(1) must be interpreted in a purposive manner. The basis for the special relationship is found in that upon European contact, the aboriginal cultures were already centuries old. Section 35(1) is meant to reconcile preexisting distinctive aboriginal societies with Crown sovereignty.
Lamer states the test for an aboriginal right is:
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.He goes on to list a number of factors that must be considered in the application of this test:
- the perspectives of the aboriginal peoples themselves, framed in the Canadian legal and constitutional structure;
- the precise nature of the claim;
- after the claim is specified, it must be determined if there is enough evidence to support the claim
- factors to consider include:
- nature of the action;
- nature of the regulation;
- the tradition or custom being relied upon to claim the right
- the activities might be a modern form of a practice, tradition or custom
- to be "integral", the custom or tradition must be of a central significance to the society
- the claimant must do more than prove that the practice took place - it must be demonstrated as a significant part of their distinctive culture
- these elements cannot be things common to all human societies - they must be the defining and central attributes of the society in question, i.e. without this practice or tradition, would the society be fundamentally altered
- aboriginal rights exist in practices, customs and traditions that have continuity with those that existed prior to contact
- the relevant time period is the time prior to the arrival of Europeans, not prior to the Crown's assertion of power
- the claimant does not need to provide conclusive evidence connecting the practice all the way from pre-contact times - the activities need only be rooted in pre-contact societies
- courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims - the courts cannot undervalue the evidence presented by aboriginal claimants simply because it does not adhere precisely to the common laws of evidence
- aboriginal rights claims must be adjudicated on a specific rather than general basis - the specific facts of each case are very important, and each aboriginal society has different rights
- for something to be an aboriginal right it must be of independent significance to the culture where it exists, i.e. customs that are integral to the aboriginal community will constitute aboriginal rights, but those that are merely incidental will not
- aboriginal rights must be customs, practices or traditions that are distinctive, not distinct
- the practice does not need to be unique, it just needs to be a part of what makes the aboriginal community a distinctive culture
- European influence is only relevant if the practice is integral because of the influence
- courts must consider the relationship between the aboriginals and the land, and the distinctive societies and cultures of aboriginal peoples
In applying this test to the case at bar, Lamer identifies the specific right claimed as the right to exchange fish for money – therefore it is this right that must be characterized as an integral part of the distinctive culture of the Stó:lō community. Even though he finds that the lower court judges did not apply the proper legal framework (the newly formed test), the findings of fact indicate that the Stó:lō did not exchange fish for money until after the Europeans came and thus the claim cannot be made out. Further, if the right did exist, it was only incidental to the culture. This is indicated by the fact that the particular community in this case had a band level of societal organization, and there were no members of the tribe working in the exchange of fish.
As there was no aboriginal right found, Lamer does not proceed to the rest of the Sparrow test.
- The basis for the aboriginal rights doctrine is the recognition that aboriginals were living in distinctive cultures prior to European contact.
- In order to be an aboriginal right under 35(1) an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.