## Facts

- Dorothy Marie Van der Peet, a member of the Stó:lō Nation in British Columbia, was charged under a regulation barring sale or barter of fish caught under an “Indian food fish” licence.
- On September 11, 1987, sockeye salmon were caught in the Fraser River under valid food-fish licences authorizing fishing only for food and ceremonial purposes.
- Ten salmon were sold to a non-Indigenous buyer for $5 each (total $50); Van der Peet admitted the sale.
- Van der Peet asserted the sale was protected by an Aboriginal right to sell fish under s. 35(1) of the Constitution Act, 1982.
- Trial evidence indicated Stó:lō fishing was historically directed to sustenance and ceremony; pre-contact trade in salmon existed but was limited and not shown to be a regular market activity.

## Issues

1. Whether Van der Peet proved an “existing aboriginal right” under s. 35(1) to sell fish, making the sale prohibition inapplicable to her.
2. What legal test governs identification and definition of “existing aboriginal rights” protected by s. 35(1), including commercial claims.

## Decision

- The Supreme Court of Canada (7–2) dismissed the appeal and restored the conviction.
- The majority held the Stó:lō have an Aboriginal right to fish for food, social, and ceremonial purposes, but not an Aboriginal right to sell fish commercially.
- Because no s. 35(1) right to sell fish was established, the prohibition on sale did not infringe a protected Aboriginal right; no justification analysis was required.
- Two justices dissented, each concluding that a protected fishing right could include sale for livelihood.

## Legal Principles

- An Aboriginal right under s. 35(1) exists where the claimed activity is part of a custom, practice, or tradition that was integral to the claimant group’s distinctive culture prior to European contact (the “integral to a distinctive culture” test).
- The claimed right must be characterized precisely; claims should not be framed at an overly broad level.
- The practice must be of central significance to the society’s distinctive culture; incidental or peripheral activities do not qualify.
- Continuity with pre-contact practices is required, but protected rights are not frozen in their exact historical form; modern expressions may be protected if they are continuous with pre-contact practices.
- Courts must consider the Indigenous perspective and apply evidentiary rules flexibly, including with respect to oral histories and proof difficulties.
- A practice cannot qualify as an Aboriginal right if it arose solely from European influence.
- If an Aboriginal right is established, government regulation that infringes it must be justified under the Sparrow framework; however, justification is reached only after the right’s existence is proven.

## Conclusion

The Court upheld Van der Peet’s conviction, concluding that while the Stó:lō have a constitutionally protected right to fish for food, social, and ceremonial purposes, the evidence did not establish a pre-contact, culturally integral practice of selling fish sufficient to ground a commercial sale right under s. 35(1); in doing so, it set the governing test for identifying Aboriginal rights as practices integral to a distinctive culture with pre-contact roots.


R. v. Van der Peet, [1996] 2 S.C.R. 507 (Can. 1996)