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Achieving cultural security and continuity. R. v Sappier and the refined Van der Peet test

The Van der Peet“integral to a distinctive culture” test initially risked missing the mark in seeking to achieve important objectives. However, recent jurisprudence of the Supreme Court of Canada has redefined crucial elements of the test so that courts can now look more broadly (or more generously and liberally to use the language of Sparrow) at the way of life of pre-contact aboriginal societies and at the needs of First Nations in modern times in defining existing aboriginal rights. Through a framework developed in R. v. MarshallR. v. Bernard, and R. v. Sappier the Court has set an analytical framework that focuses on the modernization of aboriginal rights with the objective of making them relevant and meaningful in a modern economy. The framework allows aboriginal communities to translate those activities that helped to define their ways of life pre-contact into modernized rights in order that they may maintain their cultures in practical ways today.

Further, the Supreme Court of Canada has relaxed the Van der Peet test by no longer requiring that pre-contact practices on which aboriginal rights are based be “core” to the aboriginal group’s identity or a “defining feature” of that culture. Rather, they must merely be one of the things that helped to define the way of life or distinctiveness of the aboriginal group.

It is submitted in this paper that the Supreme Court of Canada’s more recent jurisprudence on aboriginal rights better equips the courts with the analytical tools needed to achieve the important objectives that the doctrine of aboriginal rights is intended to serve. This paper reviews that recent jurisprudence and comments briefly on how the refined “integral to a distinctive culture” test can achieve the objectives of the aboriginal rights doctrine using fishing rights as an example.

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