Draft: August 2003
2
system with which it conflicts – in this case Canadian common law. The Court’s job is to
render Aboriginal perspectives “cognizable to the non-Aboriginal legal system” through a
reconciliation process that places equal weight on each perspective.
3
In Van der Peet, the
court was convinced that, even though salmon was central to Sto:lo culture, trade in
salmon did not pre-date colonialism. Trade in salmon was ‘incidental and occasional’ at
best and no established ‘market system’ existed until well into the 19
th
Century. Since the
practice did not pass the first stage of the test, the need to determine whether it would
pass the second stage did not arise.
As one might guess, Van der Peet has generated a good deal of critical
commentary. The putative problem with this decision, to start, is that it unfairly uses the
standards of the Canadian state and western culture to determine whether Aboriginal
practices ‘count’ as authentically Aboriginal. As Barsh and Henderson argue, “the
fundamental issue is the identity of the decision-maker. The Van der Peet test entrenches
European paternalism because the courts of the colonizer have assumed the authority to
define the nature and meaning of Aboriginal cultures.”
4
Similarly, Asch criticizes the
decision’s profound ethnocentricity, which he links with the definition adopted in western
law for what counts as a society. Aboriginal rights are granted on the basis of the degree
to which Aboriginal societies are politically and sociologically similar to western
culture,
5
yet have distinctive practices that ought to be protected. In order to recognize
3
Van der Peet at 551.
4
Russell Lawrence Barsh and James Youngblood Henderson, “The Supreme Court’s Van der Peet
Trilogy: Naïve Imperialism and Ropes of Sand,” McGill Law Journal 42 (1996-7), p. 1002.
5
Michael Asch, “The Judicial Conceptualization of Culture After Delgamuukw and Van der Peet,” in
Review of Constitutional Studies V: 2 (2000), pp. 119-137. Asch focuses on the standards used by the
judiciary for what counts as an organized society as set out in In re Southern Rhodesia. These standards,
which are also ethnocentric and biased, are a precursor to figuring out whether a practices, such as selling
salmon, is integral or distinctive of a society.
Convention