[1996] 2 S.C.R. R. v. Van der Peet 507
Dorothy Marie Van der Peet Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Quebec,
the Fisheries Council of British Columbia,
the British Columbia Fisheries Survival Coalition and
the British Columbia Wildlife Federation,
the First Nations Summit,
Delgamuukw et al., Howard Pamajewon,
Roger Jones, Arnold Gardner, Jack Pitchenese
and Allan Gardner Interveners
Indexed as: R. v. Van der Peet
File No.: 23803.
1995: November 27, 28, 29; 1996: August 21.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Aboriginal rights -- Right to sell fish on non-commercial basis --
Fish caught under native food fish licence -- Regulations prohibiting sale or barter of fish
caught under that licence -- Fish sold to non-aboriginal and charges laid -- Definition of
"existing aboriginal rights" as used in s. 35 of Constitution Act, 1982 -- Whether an
aboriginal right being exercised in the circumstances -- Constitution Act, 1982, s. 35(1) --
Fisheries Act, R.S.C. 1970, c. F-14, s. 61(1) -- British Columbia Fishery (General)
Regulations, SOR/84-248, s. 27(5).
The appellant, a native, was charged with selling 10 salmon caught under the authority of
an Indian food fish licence, contrary to s. 27(5) of the British Columbia Fishery (General)
Regulations, which prohibited the sale or barter of fish caught under such a licence. 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 this Court queried whether s. 27(5) of the Regulations was
of no force or effect in the circumstances by reason of the aboriginal rights within the
meaning of s. 35 of the Constitution Act, 1982.
Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be dismissed.
The Aboriginal Right
SNIPPETS:
Her Majesty The Queen Respondent and The Attorney General of Quebec, the Fisheries Council of
the First Nations Summit, Delgamuukw et al., Howard Pamajewon, Roger Jones, Arnold Gardner,
Constitutional law -- Aboriginal rights -- Right to sell fish on non-commercial basis --Fish
35 of Constitution Act, 1982 -- Whether an aboriginal right being exercised in the
The appellant, a native, was charged with selling 10 salmon caught under the authority of an
The Court of Appeal allowed the Crown's appeal and restored the guilty verdict.
Held (L'Heureux-Dubé and McLachlin JJ.
This relationship is a fiduciary one and a generous and liberal interpretation should
This purposive analysis is not to be limited to an analysis of why a pre-existing doctrine
Section 35provides the constitutional framework through which the fact that aboriginals lived
To be an aboriginal right an activity must be an element of a practice, custom or tradition
Title to aboriginal title lands -- lands which the natives possess for occupation and use at
right (including extinguishment); the establishment of a prima facie infringement of such
Section 35must be given a generous, large and liberal interpretation and ambiguities or
Finally, the legislative provision under constitutional challenge was not only aimed at
The legal perspectives of both the European and the aboriginal societies must be incorporated
Christopher Harvey, Q.C., and Robert Lonergan, for the interveners the British Columbia
This appeal, along with the companion appeals in R. v. N.T.C. Smokehouse Ltd.,
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