Draft: August 2003
1
Accommodation and Self-Determination:
Is Arguing for Identity Worthwhile?
by
Avigail Eisenberg
## email not listed ##
I
In 1996, the Supreme Court of Canada developed a systematic test, in the context
of R. v. Van der Peet, to help resolve conflicts between Aboriginal practices and
Canadian law.
1
At issue in Van der Peet was whether Dorothy Van der Peet, as a member
of the Sto:lo First Nation, was exempt from regulations which restricted an individual
from selling salmon without a license. Van der Peet argued that her right to trade in
salmon was derived from her membership in the Sto:lo nation, a nation whose cultural
identity is intimately tied to salmon fishing, and thus is protected by section 35 of
Canada’s Constitution.
2
The majority found against Van der Peet and argued that trade in
salmon (as opposed to fishing and consuming salmon) did not count as a protected
Aboriginal right in this case. According to the Court, in order for a practice to receive
constitutional protection it must pass a two stage test. In the first stage, the plaintiff must
show that the disputed practice is integral to the precolonial indigenous culture of the
community in question. In the second stage, the practice must be balanced with the legal
1
[1996] 2 SCR 507.
2
Section 35 reads, “(1)The existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed; (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit
and Métis peoples of Canada; (3) For greater certainty, in subsection (1) "treaty rights" includes rights that
now exist by way of land claims agreements or may be so acquired; (4) Notwithstanding any other
provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to
male and female persons.
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