Ronald Edward Sparrow, a member of the Musqueam Band, was caught fishing with a drift net 45 fathoms in length, 20 fathoms 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 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.
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.
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, 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 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 :
a valid legislative objective
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 licences by lottery.
