ARTICLE · 24 JANUARY 2025

Why Is The Van Der Peet Decision Important?

First Peoples Law

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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.

CanadaGovernment, Public Sector

Bruce McIvor

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.

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