Why is the Sparrow Decision Important?
The 1990 Sparrow decision is important because it was the Supreme Court’s first confirmation of an Aboriginal right under section 35 of the Constitution.
In 1984, two years after constitutional protection for existing Aboriginal and treaty rights had been enshrined in s. 35 of the Constitution, Musqueam member Ron Sparrow was charged for fishing in the Fraser River with a net longer than allowed under federal law. In court, Sparrow argued the law interfered with Musqueam’s constitutionally-protected Aboriginal right to fish.
The Supreme Court decided section 35 was intended to provide Indigenous people with limited protection from government regulation for certain activities, e.g. fishing. The protection is not absolute. Even a protected Aboriginal right can be limited or regulated.
The Court also decided the Constitution only protects Aboriginal rights in existence when section 35 came into effect in 1982. If a right had been extinguished before 1982 it was not renewed and protected.
Government regulation of an Aboriginal right before 1982 did not mean the right had been extinguished. Extinguishment could only have occurred if there was evidence of the Crown’s clear and plain intent to do so.
The Court rejected the argument that Musqueam’s Aboriginal fishing right was equivalent to property rights of non-Indigenous people. Also, the Court accepted without question the supremacy of Crown sovereignty and that the Crown holds the underlying title to Indigenous land.
The Court decided Musqueam had proven its right to a food, social and ceremonial fishery and that subject to conservation the fishery had priority over other fisheries. In response to the Sparrow decision, the federal government introduced the Aboriginal Fisheries Strategy to regulate First Nations’ food, social and ceremonial fisheries.
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Bruce McIvor, lawyer and historian, is partner at First Peoples Law LLP. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada. Bruce's ancestors took Métis scrip at Red River in Manitoba. He holds a law degree, a Ph.D. in Aboriginal and environmental history, is a Fulbright Scholar and author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He is a member of the Manitoba Métis Federation.
First Peoples Law is a law firm dedicated to defending and advancing the rights of Indigenous Peoples in Canada. We work closely with First Nations to defend their Aboriginal title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their members.