R. V. Van Der Peet - Opinion of The Court

Opinion of The Court

In a seven to two decision, the Court upheld the Court of Appeal's decision. 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." The exchange of fish for money or other goods did not constitute a practice, custom or tradition that was integral to Sto:lo culture.

The Court developed an "Integral to a Distinctive Culture Test" to determine how to define an Aboriginal right as protected by s.35(1) of the Constitution Act, 1982. The Test has ten main parts:

1. Courts must take into account the perspective of aboriginal peoples themselves
   
2. Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right
   
3. In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in question
   
4. The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact
   
5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims
6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis
   
7. For a practice, custom or tradition to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists
   
8. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct
   
9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence.
   
10. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples