Opinion of the Court
In a 7–2 decision, the Court upheld the Court of Appeal's decision. In order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group asserting the right." The exchange of fish for money or other goods did not constitute a practice, custom or tradition that was integral to Sto:lo culture. The Court developed an "Integral to a Distinctive Culture Test" to determine how to define an Aboriginal right as protected by s.35(1) of the Constitution Act, 1982. The Test has ten main parts: • Courts must take into account the perspective of Aboriginal peoples themselves • Courts must identify precisely the nature of the claim being made in determining whether an Aboriginal claimant has demonstrated the existence of an Aboriginal right • In order to be integral a practice, custom or tradition must be of central significance to the Aboriginal society in question • The practices, customs and traditions which constitute Aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact • Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating Aboriginal claims • Claims to Aboriginal rights must be adjudicated on a specific rather than general basis • For a practice, custom or tradition to constitute an Aboriginal right it must be of independent significance to the Aboriginal culture in which it exists • The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct • The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence. • Courts must take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal peoples == Criticism ==
Criticism
Canadian Aboriginal Law scholar John Borrows writes: "With this test, as promised, Chief Justice Antonio Lamer has now told us what Aboriginal means. Aboriginal is retrospective. It is about what was, 'once upon a time,' central to the survival of a community, not necessarily about what is central, significant, and distinctive to the survival of these communities today. His test has the potential to reinforce troubling stereotypes about Indians." ==See also==