''R v Sparrow'',
9901 S.C.R. 1075 was an important decision of the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
concerning the application of
Aboriginal rights under
section 35(1) of the
Constitution Act, 1982
The ''Constitution Act, 1982'' (french: link=no, Loi constitutionnelle de 1982) is a part of the Constitution of Canada.Formally enacted as Schedule B of the ''Canada Act 1982'', enacted by the Parliament of the United Kingdom. Section 60 of t ...
. The Court held that Aboriginal rights, such as
fishing
Fishing is the activity of trying to catch fish. Fish are often caught as wildlife from the natural environment, but may also be caught from stocked bodies of water such as ponds, canals, park wetlands and reservoirs. Fishing techniques inclu ...
, that were in existence in 1982 are protected under the
Constitution of Canada
The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
cannot be infringed without justification on account of the government's
fiduciary
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for exampl ...
duty to the Aboriginal peoples of Canada.
Background
Ronald Edward Sparrow, a member of the
Musqueam
The Musqueam Indian Band ( ; hur, xʷməθkʷəy̓əm ) is a First Nations in Canada, First Nations band government in the Canadian province of British Columbia. It is the only First Nations band whose reserve community lies within the boundari ...
Band, was caught fishing with a drift net 45
fathom
A fathom is a unit of length in the imperial and the U.S. customary systems equal to , used especially for measuring the depth of water. The fathom is neither an International Standard (SI) unit, nor an internationally-accepted non-SI unit. Hi ...
s (82 m) in length, 20 fathoms (37 m) longer than permitted by the band's fishing licence under the
Fisheries Act
Fisheries Act (with its variations) is a stock short title used for legislation in multiple countries relating to fisheries. The Bill for an Act with this short title will have been known as a Fisheries Bill during its passage through Parliament. ...
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
Robert George Brian Dickson (May 25, 1916 – October 17, 1998) was a Canadian lawyer, military officer and judge. He was appointed a puisne justice of the Supreme Court of Canada on March 26, 1973, and subsequently appointed the 15th Chief Jus ...
and Justice
Gérard La Forest
Gérard Vincent La Forest (born April 1, 1926) is a former puisne justice of the Supreme Court of Canada. He served there from January 16, 1985 to September 30, 1997. He is currently counsel at law firm Stewart McKelvey in Fredericton, New Bruns ...
. 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).
The Sparrow test
# Is the practice, custom, or tradition an existing aboriginal right?
# If this right has been established, does the impugned limitation constitute a ''prima facie'' infringement on that right?
# If the limitation is a ''prima facie'' infringement on the aboriginal right, can the government justify it?
The existence of the aboriginal right to fish was not at serious dispute in this appeal, so this case doesn't elaborate on how to determine whether a right is an aboriginal right. This case instead focused on whether that right was extinguished, whether that right was infringed, and whether that infringement was justified.
"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. As long as the right had not been extinguished, the ''manner'' in which the right happened to have been regulated prior to 1982. The existing right is not to be narrowed in interpretation based on regulation.
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
In contract law, extinguishment is the destruction of a right or contract. Rawle, Francis; Bouvier, John. (1914) Bouvier's Law Dictionary and Concise Encyclopedia Extinguishment.' Pp. 1166-1167. 3rd revision (being the 8th ed.) Vernon Law Book C ...
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.
Justification
In order to justify a ''prima facie'' infringement, the government needs to demonstrate the following (at p 1119):
* a valid legislative objective (including conservation, protection, and management, but not including a general "public interest" purpose)
* the infringement is minimally impairing
* that the aboriginal group in question has been consulted
* that there has been compensation, in the case of expropriation
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
Hunting is the human activity, human practice of seeking, pursuing, capturing, or killing wildlife or feral animals. The most common reasons for humans to hunt are to harvest food (i.e. meat) and useful animal products (fur/hide (skin), hide, ...
licences by lottery.
See also
*
The Canadian Crown and First Nations, Inuit and Métis
The association between the Canadian Crown and Indigenous peoples in Canada stretches back to the first decisions between North American Indigenous peoples and European colonialists and, over centuries of interface, treaties were established c ...
*
Canadian Aboriginal case law
Canadians (french: Canadiens) are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of ...
*
Numbered Treaties
The Numbered Treaties (or Post-Confederation Treaties) are a series of eleven treaties signed between the First Nations, one of three groups of Indigenous peoples in Canada, and the reigning monarch of Canada (Victoria, Edward VII or George V) ...
*
Indian Act
The ''Indian Act'' (, long name ''An Act to amend and consolidate the laws respecting Indians'') is a Canadian act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves. First passed in 1876 and still ...
*
Section Thirty-five of the Constitution Act, 1982
Section 35 of the ''Constitution Act, 1982'' provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the ''Canadian Charter of Righ ...
*
Indian Health Transfer Policy (Canada)
The Canadian Indian Health Transfer Policy provides a framework for the assumption of control of health services by Indigenous peoples in Canada and set forth a developmental approach to transfer centred on the concept of self-determination in heal ...
Supreme Court of Canada
*
Calder v British Columbia (AG)
''Calder v British Columbia (AG)'' 973
Year 973 ( CMLXXIII) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* Spring – The Byzantine army, led by General Melias (Domestic of the S ...
SCR 313, 973
Year 973 ( CMLXXIII) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* Spring – The Byzantine army, led by General Melias (Domestic of the S ...
4 WWR 1 was a decision by the Supreme Court of Canada. It was the first time that Canadian law acknowledged that Aboriginal land title in Canada, aboriginal title to land existed prior to ...
(1971)
*
Guerin v The Queen (1984)
*
Delgamuukw v British Columbia
''Delgamuukw v British Columbia'', 9973 SCR 1010, also known as ''Delgamuukw v The Queen'', ''Delgamuukw-Gisday’wa'', or simply ''Delgamuukw'', is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aborigin ...
(1997)
*
Tsilhqot'in Nation v British Columbia (2014)
*
Grassy Narrows First Nation v. Ontario (Natural Resources) (2014)
External links
*
Analysis of decision
{{DEFAULTSORT:Sparrow
Supreme Court of Canada cases
Canadian Aboriginal case law
Canadian constitutional case law
1990 in Canadian case law