Case Brief: R v Sparrow, [1990] 1 SCR 1075
Facts: On 25 May 1984, Ronald Sparrow, a member of the Musqueam Band, was charged for
fishing with a net exceeding the allowable length set by s. 61(1) of the Fisheries Act. He had
been fishing in Canoe Passage (the southernmost arm of the Fraser River delta), an area covered
by the Musqueam Band’s Fisheries Act license. His net was 45 fathoms long (82 metres), 20
fathoms (37 metres) longer than permitted by the Band’s Fisheries Act license. Sparrow admitted
to the facts, but argued that he was exercising an Aboriginal right to fish and that the net length
restriction was inconsistent with s. 35(1) of the Constitution Act, 1982 and therefore invalid.
Judicial history: The B.C. Provincial Court convicted Sparrow, finding that the s. 35(1) defence
was not applicable. Relying on the B.C. Court of Appeal’s (“BCCA”) decision in Calder,1 the
trial judge found that Aboriginal rights claims had to be “supported by a special treaty,
proclamation, contract or other document.”2 On appeal, the BCCA found that Sparrow had been
exercising an existing Aboriginal right that was both entitled to constitutional protection and had
not, as the Crown argued, been “extinguish[ed] by regulation.”3 However, unable to acquit due to
an insufficient finding of facts at the trial level, the BCCA ordered a new trial on the basis that
Sparrow’s conviction was based on an incorrect interpretation of the law. Both parties appealed
on the constitutional issues raised by the case.
Issues: (1) Is the net length restriction in the fishing licence, regulations, and Fisheries Act
inconsistent with s. 35(1) of the Constitution Act, 1982? (2) Can the Crown permit restrictive
regulation of Aboriginal rights? (3) Was the Aboriginal right extinguished before 17 April 1982?
1
Calder v. Attorney‑General of British Columbia (1970), 74 W.W.R. 481 (B.C.C.A.)
R v Sparrow, [1990] 1 SCR 1075 (“Sparrow”), p. 1084. The trial judge interpreted the Supreme Court’s Calder
decision as not overturning this point of law; the BCCA ruled this an error and distinguished Calder on the facts.
3
Ibid., p. 1084.
2
Held: Dickson C.J. and La Forest J., on behalf of a unanimous Court, dismissed both the appeal
and cross-appeal and returned the constitutional question back to trial to be answered according
to the new analytical framework set out in their reasons.
Reasoning: The Court first interpreted the terms “existing rights,” “aboriginal right,” and
“recognized and affirmed” within the context of s. 35(1) of the Constitution Act, 1982.4
(a) “Existing rights”: the Court interpreted this term broadly and purposively to include any
right existing on the day the Act came into effect (17 April 1982), but not rights that had
been extinguished prior to that date. Any interpretation must allow for the rights to
evolve over time; interpretations incorporating “frozen rights” are to be rejected.5
(b) “Aboriginal right”: the Court examined the right claimed by Sparrow in his defence and
upheld the BCCA’s finding that he was exercising an aboriginal right. An examination of
the historical evidence and the Fisheries Act led to the conclusion that the right had not
been extinguished because it was regulated:6 government may “regulate the exercise of
the right … in keeping with s. 35(1).”7 The doctrinal framework, below, takes up the
issue of to what extent an Aboriginal right may be regulated without being infringed.
(c) “Recognized and affirmed”: the Court surveyed the history of Crown-Indigenous
relations with respect to how Aboriginal rights are to be upheld. Here, the Court speaks to
principles flowing from the Royal Proclamation: any exercise of sovereign power by the
Federal government over Indigenous peoples must be done with the Crown’s fiduciary
obligations and historical commitments in mind.8
4
S. 35(1) reads: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized
and affirmed.”
5
Sparrow, p. 1093.
6
Ibid., p. 1099.
7
Ibid., p. 1101.
8
Ibid., p. 1110.
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Doctrinal Test: the Court sets out the test for determining a prima facie interference with an
existing Aboriginal right and for the justification of interference.9
1.
Does the legislation in question have the “effect of interfering with an existing Aboriginal
right?”10 To determine the answer, consider if the regulation:
a. Is an unreasonable limitation;
b. Imposes undue hardship; and
c. Denies the rights holders their preferred means of exercising their right?11
→ At this step, the onus lies on the individual or group challenging the legislation.
→ If the legislation is found to interfere, it is a prima facie infringement of s. 35(1);
the inquiry then proceeds to step 2, a justification analysis.
2a. Is there a “valid legislative objective”?12 Ask whether Parliament’s objectives (and those
of the regulation-setting department) are valid.
→ In both parts 2a and 2b, the onus lies on the Crown.
→ Cited examples: conserving and managing exhaustible natural resources.13
→ If a valid legislative objective is found, proceed to step 2b.
2b. Can the legislation and/or action be justified with respect to the honour of the Crown, the
special Crown-Indigenous trust relationship, and the responsibility owed by the Crown?14
The court sets out a non-exhaustive list of questions to be considered at this stage:
a. Has there been as little infringement as possible?
b. If expropriation is at issue, is fair compensation available?
c. Has the Aboriginal group in question been consulted?15
Application: the Court upholds the BCCA’s finding of an Aboriginal right,16 but does not apply
the test due to an insufficient finding of fact at the trial level.17 However, they briefly sketch the
applicable arguments for each step of the test: in step 1, the appellant will need to demonstrate
that the Fisheries Act net length restriction was a prima facie infringement of the Musqueam’s
9
It is worth noting the similarities to the Oakes test for s. 1 of the Canadian Charter of Rights and Freedoms,
especially insofar as the justification step is concerned.
10
Sparrow, p. 1111.
11
Ibid., p. 1112.
12
Ibid., p. 1113.
13
Ibid., p. 1113.
14
Ibid., p. 1114.
15
Ibid., p. 1119.
16
Ibid., p. 1095.
17
As noted in the “Judicial history” section, above. Interestingly, the trial judge found that the Crown had not “fully
met [its] case” with respect to both the necessity and appropriateness (in terms of balancing conservation and
harvesting) of the Fisheries Act restrictions: Sparrow, p. 1120.
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collective Aboriginal right to fish for food. If the burden were met, the Crown is required to
justify the regulation by demonstrating, for example, that “there is no underlying unconstitutional
objective such as shifting more of the resource to a user group that ranks below the Musqueam,”
and that the regulation is required to accomplish the limitation.18
Significance: Sparrow was a landmark judgement, being the first Supreme Court case to review
the scope of s. 35(1) of the Constitution Act, 1982 and also for affirming Aboriginal rights in
Canada. The doctrinal test is particularly significant and has shaped subsequent Canadian
jurisprudence in this area. However, despite Sparrow’s general affirmation of Aboriginal rights,
the doctrinal test clarified that these rights are not in fact absolute: the government may infringe
on them, provided that it can establish a legal justification for doing so. Additionally, the
Sparrow test left many questions unanswered: within the justification analysis, for example, the
issues of minimal infringement, fair compensation for expropriation, and the duty to consult
were not fully fleshed out.19 Later cases such as Van der Peet,20 Gladstone,21 and Delgamuukw22
would build on the Court’s reasoning in Sparrow to further refine the formulation establishing
Aboriginal rights and adjust the scope of allowable government infringements. The duty to
consult would also be taken up in later cases, such as Haida Nation.23
18
Sparrow, p. 1120-1121. Previously in the judgement, the Court cited Jack et al. v. The Queen, [1980] 1 S.C.R. 294
(at p. 313) for the proposition that conservation is a valid legislative concern and that it may give rise to the
following list of priorities with respect to Aboriginal fishing rights: “(i) conservation; (ii) Indian fishing; (iii)
non‑Indian commercial fishing; or (iv) non‑Indian sports fishing.” (Sparrow, p. 1115)
19
Ibid., p. 1119.
20
R v Van der Peet, [1996] 2 SCR 507
21
R v Gladstone, [1996] 2 SCR 723
22
Delgamuukw v British Columbia, [1997] 3 SCR 1010
23
Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73
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