Human Rights Dialogue (1994–2005): Series 2 No. 12 (Spring 2005): Cultural Rights: Section 3: The Distinctive Culture Test

In diverse societies, especially those shaped by colonialism and discrimination, many people find they must defend themselves against public laws and regulations that threaten practices they view as crucial to their cultural or religious identity. Oftentimes political and legal institutions are called upon to broker these conflicts, and in some cases they have developed methods to guide that process. Very little attention has been devoted to these methods, but they are a growing part of how public institutions respond to claims of protecting cultural identity.

R. v. Van der Peet (1996) of the Canadian Supreme Court is instructive because it shows what happens when public institutions try to design a set of criteria for determining when a cultural practice should be exempt from state law. Dorothy Van der Peet, as a member of the Sto:lo First Nation, claimed exemption from regulations restricting individual fishers from selling salmon without a license. Van der Peet argued that her right to trade in salmon derived from her membership in a native Aboriginal nation whose cultural identity is intimately tied to salmon fishing, and thereby protected by section 35 of Canada’s Constitution. The majority of the Court justices 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.

According to the Court, in order for a practice to receive constitutional protection it must pass a two-stage “distinctive culture test.” In the first stage, the plaintiff must show that the disputed practice is integral to the pre-contact indigenous culture of the community in question. In other words, to be protected practices must be central, not incidental, to the culture, and only those practices that existed before Aboriginal-European contact are eligible for constitutional protection. In the second stage, the practice must be balanced with the legal 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. 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 contact with Europeans. Trade in salmon was “incidental and occasional” at best and no established market system existed until well into the nineteenth 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.

What makes this case so important is less its success or failure at accurately understanding Sto:lo culture than the difficulty the Court encountered in designing and applying fair criteria to assess what is distinctive about Sto:lo culture. To some extent any verdict was doomed from the start given that many Aboriginal peoples in Canada view the courts as institutions of the colonizing state, and therefore particularly lacking the political legitimacy to define the nature and meaning of Aboriginal cultures. Moreover, whereas Aboriginal people seek ways of enhancing their autonomy, the distinctive culture test applied by the Court offers at best the state’s accommodation and protection of their distinctive practices and activities.

Beyond these obstacles, the test itself is ethnocentric. Although the decision putatively aims at “reconciliation”—a word used several times in the judgment—the court focuses only on what reconciliation requires of Aboriginal peoples, not of both peoples. The distinctive culture test states that only Aboriginal practices that developed pre-contact are eligible to be exempt from Canadian laws. It does not stipulate, nor does the Court seem aware of the ironic implication, that if equitably applied the test would similarly insist that only European cultural practices that developed pre-contact are eligible for exemption. The irony here is that a conflict between contemporary European-based cultural practices and Canadian law would never arise because the law in question was established by European settlers and has evolved to accommodate their changing cultural practices. In this way, the distinctive culture test actually judges Aboriginal rights on the basis of the degree to which Aboriginal societies are politically and sociologically similar to Western culture, allowing that they have distinctive practices that ought to be protected. Yet it would be a mistake to conclude that the distinctive culture test, or something like it, ought to be abandoned tout court. To determine in the context of cultural disputes whether a particular practice is central to a community’s identity, as the distinctive culture test does, and to reconcile what is central to one culture with what is central to another are unavoidable concerns in a pluralistic society. Moreover, the process of establishing transparent criteria that ask what is distinctive and integral about a culture has the potential to compel public institutions to confront difficult questions about political legitimacy and ethnocentricity that they might not confront otherwise.

Many of these difficult questions recede into the background when cultural conflicts are framed in terms of abstract and contending rights because discussions that focus on rights bring with them their own implicit set of standards and procedures for reasoning through claims. For example, we tend to regard courts as the legitimate arbiters of rights. But we are likely to be less comfortable with the idea that a state’s supreme court should decide what counts as distinctive about the culture of a community that the state has colonized. Similarly, we can accept that rights must be understood according to standards embedded in the development of law. But when a legal test is used to identify the standards that explicitly distinguish a culture, the biased nature of these standards becomes less obscure and abstract (as in the case of the pre-contact rule) and therefore more likely to be questioned.

The point is not that the distinctive culture test is less ethnocentric than other ways of framing and discussing cultural conflicts. Ethnocentricity is likely to be a part of any public discussion about cultural claims. The important question is what sort of institutional approach is likely to expose these biases and render them more open to critical assessment and revision. Something like a distinctive culture test is a helpful way to bring implicit biases out into the open so that they can be challenged and changed, and so that a fair and systematic guide to the assessment of cultural claims can be developed.

Legal activists in Canada and elsewhere are working to use and refine the distinctive culture test. The Supreme Court of Canada was not unanimous in its judgment in Van der Peet, and dissenting justices argued against using the “magic moment of European contact” rather than the “traditions and standards of the aboriginal people in question” as the standard within the test. Aboriginal peoples in Canada, despite serious reservations about the test, have made arguments in at least two additional constitutional cases using the distinctive culture test. And, internationally, something similar to this test is being developed through the evolving work of the United Nations Human Rights Committee. Notably, no international case uses the European contact requirement found in Van der Peet.

In the end, there is no magical fix to working out fair relations in a pluralistic society. Yet these relations can be improved by finding ways in which institutions can engage in, rather than avoid, discussions about culture and cultural identity in public forums and institutions, and in a manner that exposes ethnocentricity and problems of legitimacy. A distinctive culture test is one such way, and is likely to be increasingly used and developed by national and international institutions.

Read about the struggles facing members of Cambodia’s fishing communities as they fight for the rights to access and manage natural resources crucial for their survival in “Environmental Rights as a Matter of Survival” by Blake D. Ratner in the environmental rights issue of Human Rights Dialogue.