Section 35 of the Constitution Act, 1982 recognizes and affirms “the existing [A]boriginal and treaty rights of the [A]boriginal peoples of Canada.”[1] However, section 35 does not create Aboriginal rights, nor are Aboriginal rights “granted” by the Crown. Rather, they are inherent rights that exist because “when the settlers came, the [Aboriginal peoples] were there, organized in societies and occupying the land as their forefathers had done for centuries.”[2] When the Crown asserted its sovereignty over Aboriginal peoples, it “superimpose[ed] European laws and customs on pre-existing Aboriginal societies”[3] without extinguishing their inherent rights. As such, Aboriginal peoples’ prior occupation of the land we now call Canada gives rise to both Aboriginal rights and title.[4]

The Van der Peet Test for Aboriginal Rights

In R v Van der Peet, the Supreme Court of Canada established the test to for identifying Aboriginal rights. A claimant will have an Aboriginal right to engage in an activity, the Court said, if that “activity [is] an element of a practice, custom or tradition integral to the distinctive culture of the [A]boriginal group claiming the right.”[5] To give rise to an Aboriginal right, this practice, custom, or tradition must have been a “defining feature of the culture in question”[6] and must have “truly made the society what it was.”[7] It must be grounded in the practices, customs, and traditions of the claimant’s community from pre-contact times,[8] even if the activity was interrupted for a time[9] or was influenced by European culture (eg from historic use of bows and arrows to contemporary use of rifles for hunting).[10] Activities that all societies share (eg eating to survive) or that are incidental to the group claiming the right are not sufficient.[11]

Under Van der Peet, a court presented with an Aboriginal rights claim must first identify the nature of the right being claimed.[12] To help frame this analysis, the court will consider: (1) the nature of the complainant’s action which “was done pursuant to an [A]boriginal right,”[13] (2) the nature of the impugned Crown action, and (3) the practice, custom, or tradition that gives rise to the right claimed.[14] Once the nature of the claimed right is established, the court must determine whether the activity is integral to the distinctive culture of the claimant’s community.[15] If the activity is integral to the Aboriginal claimant’s distinctive culture, it will rise to the level of an Aboriginal right under section 35 of the Constitution Act, 1982. If not, the activity will not enjoy constitutional protection.

Aboriginal rights are not absolute and may be infringed pursuant to the Sparrow Test.

[1] The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] Calder v Attorney-General of British Columbia, 1973 CanLII 4 (SCC), at 156 [“Calder”]. See also R v Van der Peet, 1996 CanLII 216 (SCC), at para 30 .

[3] Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 (CanLII), at para 67.

[4] Van der Peet, supra note 2 at para 33 (citing Calder, supra note 2 at 328, internal quotations removed).

[5] Ibid at para 46.

[6] Ibid at para 59.

[7] Ibid at para 55.

[8] Ibid at para 63.

[9] Ibid at para 65.

[10] Ibid at para 73.

[11] Ibid at para 56. Cf R v Sappier; R v Grey, 2006 SCC 54 (CanLII) at paras 46 (in this case, the Court cautions against “reducing an entire people’s culture to specific anthropological curiosities and, potentially, racialized [A]boriginal stereotypes” such as canoe-building and basket-making. Rather, the courts must seek to understand how the pre-contact activity relates to the Aboriginal people’s way of life).

[12] Van der Peet, supra note 2 at para 76.

[13] Ibid at para 53.

[14] Ibid at para 53.

[15] Ibid at para 80.