Dorothy Marie Van der Peet, Appellant v. Her Majesty The Queen, Respondent País/Territorio Canadá Tipo de la corte Nacional - corte superior Fecha Ago 21, 1996 Fuente UNEP, InforMEA Nombre del tribunal Supreme Court of Canada Juez LamerLa ForestLHeureux-DubéSopinkaGonthierCoryMcLachlinIacobucciMajor Número de referencia [1996] 2 S.C.R. 507 Idioma Inglés Materia Pesca, Cuestiones jurídicas Palabra clave Derecho constitutional Pueblos indígenas Autorización de pesca Permiso de pesca Resumen The appellant, a native, was charged with selling 10 salmon caught under the authority of an Indian food fish license, contrary to s. 27(5) of the British Columbia Fishery (General) Regulations, which prohibited the sale or barter of fish caught under such a license. The restrictions imposed by s. 27(5) were alleged to infringe the appellant’s aboriginal right to sell fish and accordingly were invalid because they violated s. 35(1) of the Constitution Act, 1982. The trial judge held that the aboriginal right to fish for food and ceremonial purposes did not include the right to sell such fish and found the appellant guilty. The summary appeal judge found an aboriginal right to sell fish and remanded for a new trial. The Court of Appeal allowed the Crown’s appeal and restored the guilty verdict. The constitutional question before the Supreme Court was whether s. 27(5) of the Regulations was of no force by reason of the aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982. The Supreme Court held that the appeal should be dismissed. It was of the view that a purposive analysis of s. 35(1) had to take place in light of the general principles applicable to the legal relationship between the Crown and aboriginal peoples. Aboriginal rights existed and were recognized under the common law. They were not created by s. 35(1) but subsequent to s. 35(1) they could not be extinguished. They could, however, be regulated or infringed consistent with a justificatory test. The Court emphasized that in order to be an aboriginal right an activity had to be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. The aboriginal claimants had to demonstrate that the custom or tradition was a defining characteristic of their culture. The practices, customs and traditions which constituted aboriginal rights were those which had continuity with the practices, customs and traditions that existed prior to contact with European society. The evidence simply needed to be directed at demonstrating which aspects of the aboriginal community and society had their origins pre-contact. The fact that that practice, custom or tradition continued after the arrival of Europeans, and adapted in response to their arrival, was not relevant to determination of the claim; European arrival and influence could not be used to deprive an aboriginal group of an otherwise valid claim to an aboriginal right. A practice, custom or tradition would not meet the standard for recognition of an aboriginal right, however, where it had arisen solely as a response to European influences. The first step in the application of the integral to a distinctive culture test required the Court to identify the precise nature of the appellant’s claim to have been exercising an aboriginal right. Here, the appellant claimed that the practices, customs and traditions of the Sto:lo included as an integral element the exchange of fish for money or other goods. The Court held that the trial judge made no clear and palpable error which would justify an appellate court’s substituting its findings of fact. These findings included: (1) prior to contact exchanges of fish were only "incidental" to fishing for food purposes; (2) there was no regularized trading system amongst the appellant’s people prior to contact; (3) the trade that developed with the Hudson’s Bay Company, while of significance to the Sto:lo of the time, was qualitatively different from what was typical of Sto:lo culture prior to contact; and, (4) the Sto:lo’s exploitation of the fishery was not specialized and that suggested that the exchange of fish was not a central part of Sto:lo culture. The appellant failed to demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Sto:lo culture which existed prior to contact and was therefore protected by s. 35(1) of the Constitution Act, 1982. Texto completo 1996scc72.html