Supreme Court of Canada –  1 S.C.R. 1075
The Sparrow case is a major aboriginal law case. It marks the beginning of a new era in Supreme Court jurisprudence. The Court was examining for the first time the scope of section 35 of the Constitution Act, 1982. It starts to explain the strength of this disposition as a promise towards aboriginal peoples in Canada.
This case is mostly known for its “test”, that determines whether the Crown is infringing on aboriginal peoples’ constitutional rights, and whether this breach is justified and upholds the honour of the Crown.
Is Canada’s jurisdiction to regulate fisheries limited by section 35 of the Constitution Act, 1982, which protects existing Aboriginal rights?
Was the restriction on the length of the net inconsistent with section 35?
Section 35 limits Canada’s powers. The Musqueam band has an existing aboriginal right, and the regulations adopted in consistency with the Fisheries Act represent, at first sight, an infringement upon this right. A test is established in order to determine whether an infringement is valid or not, and the case is returned to trial (unanimous decision).
Between: Ronald Edward Sparrow
And: the Crown of Canada
Interveners: The National Indian Brotherhood / Assembly of First Nations, the B.C. Wildlife Federation, the Steelhead Society of British Columbia, the Pacific Fishermen’s Defense Alliance, Northern Trollers’ Association, the Pacific Gillnetters’ Association, the Gulf Trollers’ Association, the Pacific Trollers’ Association, the Prince Rupert Fishing Vessel Owners’ Association, the Fishing Vessel Owners’ Association of British Columbia, the Pacific Coast Fishing Vessel Owners’ Guild, the Prince Rupert Fishermen’s Cooperative Association, the Co-op Fishermen’s Guild, Deep Sea Trawlers’ Association of B.C., the Fisheries Council of British Columbia, the United Fishermen and Allied Workers’ Union, Ontario, Quebec, British Columbia, Saskatchewan, Alberta and Newfoundland
Sparrow is a member of the Musqueam Indian Band, part of the Salish Nation, made up of about 640 members. For the last 1,500 years, the Musqueam have been living on their historic territory. The reserve is located on the same territory, which is on the north shore of the estuary of the Fraser River near Vancouver. Salmon has always been a part of their diet and of their culture, since it was used for religious ceremonies.
Before 1871, the year that British Columbia entered Confederation, fisheries were not regulated in the colony and Aboriginal people fished for their subsistence. In 1876, the Fisheries Act became in force in British Columbia and its first regulation, the Salmon Fishery Regulations for British Columbia, was adopted two years later. It gave Aboriginal people the right to fish for their subsistence and prohibited them from selling or bartering their catch, because non-Aboriginal people had begun commercial and sport fishing in the province. The number of restrictions affecting Aboriginal people’s right to fish increased as the years went by.
In 1917, new regulations establishing the method, locale and time of fishing were put in place. To be able to continue to fish for food, Aboriginal people had to obtain a licence. These strict regulations practically stopped the Musqueam from fishing for food by 1969. Their fish rations were obtained by Band members who were lucky enough to have a commercial licence.
In 1978, the system of Band licences replaced individual licences for the Musqueam. The Band was issued a licence so that its members could now fish for food for themselves and their families. This was still subject to conditions such as the delimitation of a fishing territory, namely, the waters of Ladner Reach and Canoe Passage, and a net length restriction, that is, a maximum of 25 fathoms in length.
Between 1977 and 1984, the number of fishermen in the band nearly quadrupled and the number of embarkations more than doubled.
In 1984, Sparrow was fishing in Canoe Passage, one of the areas where the license permitted him to fish. However, he was fishing with a drift net longer than what his Band’s Indian food fishing license allowed him to have. He was charged and convicted under section 61 (1) of the Fisheries Act.
Sparrow: His acts do constitute the offence, but the accusation should be oppose on the grounds that he was exercising an existing Aboriginal right to fish and that the net length constraint included in the Band’s licence was invalid because it was inconsistent with sect. 35 (1) of the Constitution Act, 1982. He is supported by the National Indian Brotherhood / Assembly of First Nations.
The Crown: The right was extinguished “by regulations” and therefore could not be claimed. The Crown is supported by other interveners..
Provincial Court of British Colombia (1985): Sparrow is convicted. On the basis of the Supreme Court’s opinion in Calder, the Court contended that an Aboriginal right had to be supported by a treaty or another official document, which it found was not the case for Sparrow and the Musqueam Band.
County Court of Vancouver (1986): The appeal is dismissed for similar reasons.
British Columbia Court of Appeal (1986): The lower courts were wrong in arguing that the Calder decision required them to decide that Sparrow could not rely on his Aboriginal right to fish. However, the protection of Aboriginal rights could not restrain the government from regulating these rights. It could adopt reasonable regulations for the management and conservation of resources.
Dickson, McIntyre, Lamer, Wilson, La Forest, L’Heureux-Dubé, Sopinka
The “existing rights” protected by section 35 of the Constitution Act, 1982 include the rights that existed on the day this Act came into effect. Rights extinguished beforehand are excluded. Section 35 (1) must be given a “purposive interpretation,” which means that it must be construed in a large and liberal way with the government’s acknowledgement of Aboriginal rights in mind. The federal government’s exercise of sovereign power over Indians is always linked to the Crown’s fiduciary obligation towards them and must be done in such a way that this historical commitment is respected.
However, the Court insisted that the recognition of Aboriginal rights under section 35 (1) is not absolute: they can be restricted, if the government is able to justify the infringement. The Court establishes a test :
In the case at hand, the Musqueam have an existing Aboriginal right. Their right to fish is a sui generis (unique) one, not to be confused with property rights in common law. The regulations of the Fisheries Act are prima facie, or at first sight, infringements of that Aboriginal right. The Court therefore went to the second part of the test: justification.
The restriction on the length of the nets has a legitimate objective, which is conservation and management of an exhaustible resource. Does this restriction jeopardizes the honour of the Crown in its dealings with Sparrow and the Musqueam? The Musqueam and the other bands fishing for food in the Fraser River have a priority over non-Aboriginal fishermen, given to them by the federal government.
The question of determining whether the government policy on net length was the correct means to preserve and manage the fish stocks in the Fraser River must be decided by the trial court, not the appeal courts. The Supreme Court ordered a re-trial.
The Sparrow decision is central to Aboriginal law. It marks the beginning of a new era in Canadian jurisprudence (Des Rosiers, 2000: 159). It advanced the cause of Aboriginal rights and self-government by granting First Nations a higher degree of legitimacy and additional bargaining power, which had the effect of putting them in a better position to negotiate with the government (Slowey, 2000: 9).
One of the Court’s intentions behind Sparrow was to decrease the recourse to litigation to resolve Aboriginal claims and instead favour negotiations between Aboriginal groups and the different levels of government. That is why the decision does not provide a broad definition of existing Aboriginal rights.
However, aboriginal rights cases are still numerous before tribunals, and negotiations too rare. Since Sparrow, governments still have not adopted elaborate systems, processes or measures to ensure the respect of aboriginal and treaty rights (Isaac, 2004).
Aboriginal Fisheries Strategy
After the decision was issued, the Department of Fisheries and Oceans (DFO) quickly made plans for an effective response to deal with the consequences of the decision. In 1991, the aboriginal management programs were launched as an interim to test out different ways that Aboriginal fisheries could be managed in partnership with the communities (Gilby, 1995: 237). The operation was successful and the Aboriginal Fisheries Strategy (AFS) was put in place the following year. This policy implemented a new relationship between DFO and Aboriginal communities on the Pacific Coast by giving them a larger role in the management of the resources while keeping fisheries sustainable for all Canadians (DFO, 2008a).
The AFS is still in place today and is applicable to First Nations in the Pacific region without a land claim settlement or a fisheries management regime. DFO allocates funds to more than 90 Aboriginal organizations to be used for fisheries management, habitat restoration, fish repopulation, research, economic development and consultation with their concerned members. The Watershed Agreements are a collaborative approach to fisheries conservation, protection and enhancement in the Skeena River area. Additional project funding can be given to community initiatives. The Comprehensive Fisheries Agreements, which are more detailed agreements between DFO and an Aboriginal organization (DFO, 2008b), are the cornerstone of the strategy. Communal licences are still issued to Aboriginal organizations.
Some maintain that the policy is overbearing, and that despite the claims of a negotiation process, the federal government is still dictating the final conditions of the communal licenses to Aboriginal people. The communities’ compliance with the new strategy is required; if not, they face severe prosecution by the federal authorities. Some feel that the payment of a lump sum would not help those communities to become self-sufficient or to increase their economic development. On the other hand, some initiatives show more potential, such as the joint conservation strategies and habitat enhancement programs (Gilby, 1995: 237-238).
The AFS has also been a bone of contention between Aboriginal people and non-Native fishermen on the Pacific coast. In British Columbia, 30 percent of all commercial fishing licenses were attributed to First Nation members and they also gained priority of access to the fisheries. This increased xenophobia and racism on the part of both groups (Id.: 239). In 1998, the B.C. Fisheries Survival Coalition, made up of some 145 non-Aboriginal commercial fishers, protested by fishing during their prohibited time in order to build a test-case seeking a declaration of the unconstitutionality of the Aboriginal Communal Fishing Licenses Regulations, the other related regulations and the AFS. Their claims were rejected by the Supreme Court in 2008 in the Kapp decision (Kapp, 2008).
In the Atlantic region, the Sparrow decision was also crucial for the Mi’kmaqs and Malecites whose treaty right to fish commercially was recognized by the Supreme Court in Marshall I and II in 1999 (Marshall, 1999).
Nowegijick v. The Queen,  1 S.C.R. 29
Guerin v. The Queen,  2 S.C.R. 335
Delgamuukw v. Colombie-Britannique,  3 S.C.R. 1010
Jack v. The Queen,  1 S.C.R. 294
R. v. Marshall,  3 S.C.R. 456
R. v. Kapp,  2 S.C.R. 483
R. v. Marshall,  3 S.C.R. 456
R. v. Kapp, 2008 SCC 41
Des Rosiers Nathalie. 2000. “Du dialogue au monologue : un commentaire sur l’arrêt R. c. Marshall,” in Dalhousie Law Journal 23: 149-167.
Gilby Stuart. 1995. “The Aboriginal Right to a Commercial Fishery,” in Dalhousie Journal of Legal Studies 4: 231-252.
Isaac Thomas. 2004. Aboriginal Law : commentary, cases and materials, 3rd ed. Saskatoon : Purich Pub.
Rudin Jonathan. 1998. “One Step Forward, Two Steps Back: The Political and Institutional Dynamics behind the Supreme Court of Canada’s Decisions in R. v. Sparrow, R. v. Van Der Peet and Delgamuukw v. British Columbia,” in Journal of Law and Social Policy 13: 67-94.
Slowey Gabrielle A. 2000. “Aboriginal Self-Government, Extinguishment of Title and the Canadian State Effectively Removing the ‘Other’?,” in Native Studies Review 13 (1): 1-17.
Fisheries and Oceans Canada. 2008a. Aboriginal Fisheries Strategy, in Pacific Region Treaty and Aboriginal Fisheries Programs. On-line. http://www.pac.dfo-mpo.gc.ca/tapd/afs_e.htm. Retrieved on June 9, 2010.
Fisheries and Oceans Canada. 2008b. AFS Agreements, in Pacific Region Treaty and Aboriginal Fisheries Programs. On-line. http://www.pac.dfo-mpo.gc.ca/tapd/afs_agrmt_e.htm#Comprehensive Fisheries Agreements. Retrieved on June 9, 2010.
Fisheries and Oceans Canada. 2008c. Communal Licences, in Pacific Region Treaty and Aboriginal Fisheries Programs. On-line. http://www.pac.dfo-mpo.gc.ca/tapd/com_lic_e.htm. Retrieved on June 9, 2010.
Indian and Northern Affairs Canada. 2009. The Specific Claims Policy and Process Guide. On-line. http://www.ainc-inac.gc.ca/al/ldc/spc/plc/plc-eng.pdf. Retrieved on June 8, 2010.