R v Sparrow

R v Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35(1) of the Constitution Act, 1982. The Court held that Aboriginal rights, such as fishing, that were in existence in 1982 are protected under the Constitution of Canada and cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada.

Background

Ronald Edward Sparrow, a member of the Musqueam Band, was caught fishing with a drift net 45 fathoms (82 m) in length, 20 fathoms (37 m) longer than permitted by the band's fishing licence under the Fisheries Act of 1985. Sparrow admitted to all the facts in the charge but justified it on the ground that he was exercising his Aboriginal right to fish under section 35(1) of the Constitution Act, 1982.

At trial, the judge found that section 35 protected only existing treaty rights and that there was no inherent right to fish. An appeal to the County Court was dismissed, and a further appeal to the Court of Appeal was dismissed on the grounds that there was insufficient evidence to maintain the defence.

The issue to the Supreme Court was whether the net length restriction violated s. 35(1).

Reasons of the court

The judgment of unanimous Court was given by Chief Justice Brian Dickson and Justice Gérard La Forest. They held that Sparrow was exercising an "inherent" Aboriginal right that existed before the provincial legislation and that was guaranteed and protected by section 35 of the Constitution Act, 1982. They interpreted each of the words of section 35(1).

"Existing"

The word "existing" in section 35(1), the Court said, must be "interpreted flexibly so as to permit their evolution over time". As such, "existing" was interpreted as referring to rights that were not "extinguished" prior to the introduction of the 1982 Constitution. They rejected the alternate "frozen" interpretation referring to rights that were being exercised in 1982.

Based on historical records of the Musqueam fishing practices over the centuries and into colonial time, the Court found that the band had a clear right to fish for food.

Extinguishment of rights can occur only through an act that showed "clear and plain intention" on the government to deny those rights. Here, the Court found that the Crown was not able to prove that the right to fish for food were extinguished prior to 1982. The licensing scheme was merely a means of regulating the fisheries, not removing the underlying right, and no historical government policy towards fishing rights amounted to a clear intention to extinguish.

"Recognized and Affirmed"

The words "recognized and affirmed" incorporate the government's fiduciary duty to the Aboriginal people, which requires it to exercise restraint when applying its powers in interference with Aboriginal rights. It further suggests that Aboriginal rights are not absolute and can be encroached upon given sufficient reason.

Aftermath

After the Sparrow case, federal or provincial legislation may limit Aboriginal rights only if it has given them appropriate priority because Aboriginal rights have a different nature from other non-Aboriginal rights.

The "Sparrow test" has been used by many experts as a way of measuring how much Canadian legislation can limit Aboriginal rights.

Typical cases of inappropriate priority include distributing hunting licences by lottery.

See also

• The Canadian Crown and First Nations, Inuit and Métis
• Canadian Indigenous case law
• Numbered Treaties
• Indian Act
• Section Thirty-five of the Constitution Act, 1982
• Indian Health Transfer Policy (Canada)

External links

• Full text of Supreme Court of Canada decision at LexUM and CanLII
• Analysis of decision