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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

R v Sparrow Case (Can)

Canada [ca]

Geneviève Murray

Constitutional courts/supreme courts — Collective rights — Group rights — Fundamental rights — Cultural rights — Indigenous communities

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  R v Sparrow [1990] 1 SCR 1075 (Can) (‘Sparrow’) marks the first case decided by the Supreme Court of Canada (Cour suprême du Canada) under Section 35 of the Constitution of Canada: the Constitution Acts 1867 to 1982 (Unofficial consolidation current as of September 2008) (UK Can) 1867 c.3 (30 & 31 Victoria) (Can). Section 35(1) provides that ‘[t]he existing [A]boriginal and treaty rights of the [A]boriginal peoples of Canada are hereby recognized and affirmed’. The reading given to Section 35 in the Sparrow case, particularly around ‘existing’ rights, provided an opening for future recognition of broad conceptions of Aboriginal rights. The Supreme Court’s approach in Sparrow formed the basis for the Court’s subsequent recognition of Aboriginal title under Section 35, and also the recognition of a duty to consult prior where there may be potential adverse effects on unproven Aboriginal rights or title. Importantly, the Sparrow case also recognizes that Section 35 rights are not absolute, and establishes the test for how the Crown may demonstrate a justifiable infringement on Aboriginal rights.

B.  Background

2.  Prior to the amendment of the Canadian Constitution to include Section 35 in 1982, Aboriginal claims raising constitutional concerns centred on arguments relating to the division of powers between federal and provincial governments (distribution of powers in federal systems; exclusive and shared competences in federal systems). More specifically, claimants looked to Section 91(24), which vests the exclusive power to make laws in relation to ‘Indians, and [l]ands reserved for the Indians’ in the federal government. When Section 35 was introduced, the drafters anticipated great specificity would be worked out in subsequent constitutional conferences. However, the conferences did not occur and so it was left to the courts to work out the scope of the protections afforded by the provision (Stephenson 89).

3.  The Sparrow case marks the first of these efforts to unpack the meaning of Aboriginal rights under Section 35. The facts of the Sparrow case were not contested. On 25 May 1984, Mr Ronald Sparrow of the Musqueam First Nation was fishing for salmon in Canoe Passage using a licence issued to the Band that limited the length of the net to 25 fathoms. Mr Sparrow’s net measured 45 fathoms and he was therefore charged under Section 61(1) of the Federal Fisheries Act, RSC 1970, c F-14 (Can) (Fisheries Act) for using a driftnet that was longer than the approved length in the food fishing license (Sparrow 1083). The Musqueam claim to have fished that part of the river since time immemorial.

4.  Mr Sparrow argued that the regulations capping the length of the driftnet did not apply to him because they violated his Aboriginal right to fish. Specifically, the Supreme Court was asked to decide whether the Fisheries Act and regulations promulgated pursuant to that Fisheries Act violated Section 35 of the Constitution Act, 1982 (1086–1087).

5.  Notably, the claim made was in respect of a free-standing Aboriginal right: that is, one not tied to a claim of Aboriginal title (Lokan 95–96). This was fatal to the claim in the court of first instance, as Justice Goulet refused to entertain Mr Sparrow’s defence on the basis that Section 35 had no application because any claim to an Aboriginal right had to be supported by a document such as a treaty, proclamation, or contract ([1986] BCWLD 599). However, both the British Columbia Court of Appeal and the Supreme Court of Canada rejected any such limitation on Section 35 ((1986), 9 BCLR (2d) 300).

C.  The Decision

1.  Definition of ‘Existing’ Rights

6.  Chief Justice Dickson and Justice La Forest, writing for a unanimous Court, first addressed the issue of what constituted an ‘existing’ Aboriginal right. In short, the Court held that, provided the right had not been extinguished at the time the Constitution Act 1982 came into effect, then it was preserved. The Court assigned the burden of establishing extinguishment to the Crown, requiring it to satisfy the relatively high bar of demonstrating a ‘clear and plain legislative intent’ to extinguish (1099).

7.  The Court adopted an evolving conception of the rights guaranteed by Section 35, declaring that the existing rights were not frozen in the past, but rather must be allowed to transform over time and could be ‘exercised in a contemporary manner’ (1093).

8.  Moreover, the Court held that the character of the right was not limited by any regulatory restrictions on the right, even those that were in place prior to the enactment of Section 35. To do so, the Court found, would create a ‘crazy’ patchwork of rights across the country by giving the regulations that happened to be in existence at the time a quasi-constitutional status (1092).

9.  The Court then determined that the Musqueam right to fish for ‘food and social and ceremonial purposes’ was an existing one under the meaning of Section 35. The Court observed that the Musqueam had lived near the mouth of the Fraser River as an ‘organized society long before the coming of European settlers’ (1094) and that there was evidence of ‘sufficient continuity’ (1095). Moreover, the Court found that fishing for salmon had ‘always constituted an integral part of the distinctive culture’ (1099)—language that went on to be incorporated into the test for establishing a right under Section 35 in subsequent cases.

10.  While there had been progressive restriction and regulation of the right, the Court found that there was nothing in the Fisheries Act amounting to a clear and plain intent to extinguish the right. Significantly, however, the Court did find that government policy could regulate the exercise of an existing right, provided such regulation was ‘in keeping with Section 35’ (1101).

11.  The Court limited the scope of the right to the arguments made in the courts below, and therefore declined to rule on the issue of commercial rights raised by Mr Sparrow before the Supreme Court (1101).

2.  Impact of the Rights being ‘Recognized and Affirmed’

12.  Having established that the Musqueam had an existing right to fish for food, social, and ceremonial purposes, the Court then proceeded to determine the impact of the right being ‘recognized and affirmed’ under Section 35.

13.  In construing the meaning of the clause, the Court applied several principles of interpretation (interpretation of constitutions). First, the Court noted that given the constitutional character of the text, the clause must be interpreted purposively. It looked to the history of Aboriginal rights, noting that they were most often ‘honoured in the breach’ (1103), and found that Section 35 represented a turning point in the relationship between the Crown and Aboriginal peoples. Accordingly, the Court eschewed the argument advanced by the Crown that the section represented a mere preamble and instead adopted a generous and liberal interpretation of the words (1106–1107).

14.  Second, the Court imported the doctrine of the honour of the Crown, whereby—as a result of the special trust relationship between the Crown and Aboriginal peoples—the interpretation of treaties and statutes impacting Aboriginal people are to be ‘liberally construed and doubtful expressions resolved in favour of the Indians’ (1107, citing Nowegijick v The Queen (1983) (Can) at 36 and R v Taylor and Williams Ontario Court of Appeal (1981) (Can) at 367). The Court found this principle equally pertinent in the application of constitutional provisions.

15.  Finally, the Court applied a contextual interpretation in determining that rights that are ‘recognized and affirmed’ can nevertheless be justifiably impinged. On the face of Section 35 there are no limits on the Aboriginal rights it guarantees. Unlike the Charter Rights, which were enshrined in the same document, Section 35 is not subject to the limitations set out in Section 1. However, reading the constitution as a whole, the Court found that the federal legislative powers under Section 91(24) to make laws in relation to ‘Indians, and [l]ands reserved for the Indians’ must be read alongside Section 35, the result being that Section 35 provides a strong—but not absolute—check on legislative power (1109).

16.  Having established a limitation on the rights, the Court proceeded to outline the test for determining whether government action unduly impinges on an Aboriginal right.

17.  First, the Aboriginal claimant must establish a prima facie infringement by showing that the government action has the effect of ‘interfering’ with an existing Aboriginal right and not merely incidentally affecting the right (1111). To determine whether a right has been interfered with, the scope of the right must first be characterized. The rights claimant must then establish that the purpose or effect of the restriction was (1) unreasonable; (2) that it imposed undue hardship; and (3) that it denied the claimant their ‘preferred means of exercising that right’ (1112).

18.  The onus then shifts to the Crown to justify the infringement. To do so, the Crown must identify a valid legislative objective that is compelling and substantial, such as the conservation of natural resources or the prevention of harm (1113).

19.  The Crown must also be able to satisfy the Court that it acted honourably and respected the trust-like relationship (1114). The nature of this inquiry will depend on the circumstances of the interference, but may require that the Crown establish, inter alia, that there has been as little infringement as possible, that fair compensation was available in cases of expropriation, or that there was consultation with the Aboriginal group impacted by the legislation (1119).

3.  Postscript

20.  As a result of limited findings of fact in the proceeding below, the Court ordered a re-trial so that the evidence could be tested in accordance with its reasons (1120). However, the case was never retried and the Crown dropped all charges against Mr Sparrow.

D.  Continued Relevance

21.  The Sparrow case continues to provide the framework test for whether there has been undue impingement of an Aboriginal right under Section 35 of the Constitution Act 1982. As the first major case decided under Section 35, Sparrow set the parameters for what has been characterized as the ‘increasing judicialisation of [i]ndigenous legal issues’ in Canada (Ginsburg and Dixon 175). Subsequent cases extended the application of this test to the recognition of Aboriginal title (Delgamuukw v British Columbia (1997) (Can)) and to the duty on the Crown to consult prior to making decisions that might ‘adversely affect as yet unproven Aboriginal rights and title claims’ (Haida Nation v British Columbia (Minister of Forests) (2004) (Can) para. 50).

22.  The Supreme Court’s first application of Section 35 met with mixed reviews. Some commentators were encouraged by the Court’s confirmation that Section 35 involved substantive rights, as opposed to being of a preambular character, and by the adoption of an evolving conception of the rights. Avigail Eisenberg, for example, described the decision in Sparrow as having ‘seemed to embrace an understanding of [Section 35] at least somewhat consistent with an [i]ndigenous vision’ (Eisenberg 93). Others, such as Ian Binnie, who would later join the Supreme Court of Canada, were concerned by the limitations read in by the Court. As Binnie observed, ‘[t]he fact that these implied limitations are tightly interpreted by the present Supreme Court of Canada in relation to the relatively straightforward issue of an Indian food fishery is important but perhaps less important than the fact an “implied limitations” approach was adopted at all’ (Binnie 232).

23.  In subsequent applications of the Sparrow test, commentators observe that the implied limitation in Section 35 has taken on a similar character to the Section 1 test developed in R v Oakes (1986) (Can), and now embraces a Paretian principle approach that affords significant deference to government objectives (see Newman 548; Vicaire 662).

24.  A less apparent, but nevertheless significant, interpretive conclusion drawn from the contextual interpretation taken by the Court in Sparrow concerns the underlying relationship between the Crown and Aboriginal peoples. While title to the land and waters on which Mr Sparrow was fishing was not raised as a defence, the Court nevertheless remarked that there was ‘from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown’ (1103). This assumption of the Crown’s sovereign authority is central to the Court’s understanding of Section 35 as motivated by reconciliation of Aboriginal rights with Crown sovereignty (Fox-Decent).

E.  International Comparisons

25.  The Canadian approach to the protection of Aboriginal rights that finds expression in Sparrow can be contrasted with the way in which indigenous rights are recognised in other jurisdictions (rights of indigenous communities). Perhaps the most salient point of contrast is the inclusion of explicit recognition and affirmation of the rights of indigenous peoples found in Section 35 of Canada’s Constitution Act 1982. No such rights are enshrined, for instance, in the Commonwealth of Australia Constitution Act: 9 July 1900 (Austl) or the Constitution of the United States of America: 17 September 1787 (US). Notwithstanding this important difference, the test for the extinguishment of Aboriginal rights that was laid out in Sparrow was borrowed from the Supreme Court of the United States, which had earlier developed the ‘clear and plain intention test’ in United States v Santa Fe Pacific Ry Co (1941) (US) (see Yurkowski 471, No 20). The Sparrow approach also has a clear affinity with the American ‘reserved rights doctrine’, according to which Native American tribes retain all rights not explicitly surrendered or abrogated via the terms of a treaty or a federal statute (see United States v Winans (1905) (US)).

26.  The historical recognition by the Canadian state of indigenous rights—which figured largely in the reasoning of the Supreme Court in Sparrow—mirrors similar longstanding recognition of indigenous peoples by the governments of the United States and New Zealand. In Australia, ‘unlike in Canada, no treaties were signed with the traditional [i]ndigenous land-owners’ (Stephenson 94), and the federal government only began to address issues of native title and resource rights in earnest in the 1970s (Dow and Gardiner-Garden).

27.  Other countries that have been relative latecomers to providing constitutional recognition of the rights of their indigenous peoples include Norway, Finland, and Sweden—each of whom amended their constitutions (in 1988, 1995, and 2011, respectively) to include an explicit recognition of the right of the Sami people (whose homeland spans all three countries, as well as Russia) to develop their language and culture.

28.  (See Article 108 of the Constitution of the Kingdom of Norway: 17 May 1814 (Nor): ‘[i]t is the responsibility of the authorities of the [s]tate to create conditions enabling the Sami people to preserve and develop its language, culture and way of life’; Section 17 of the Constitution of the Republic of Finland: 11 June 1999 (Fin): ‘[t]he Sami, as an indigenous people, as well as the Roma and other groups, have the right to maintain and develop their own language and culture’; and Article 2 of Sweden’s Constitution (Instrument of Government (SFS nr 1974:152): 1974 (as Amended to December 7, 2010) SFS nr 1974:152): ‘[t]he opportunities of the Sami people and ethnic, linguistic and religious minorities to preserve and develop a cultural and social life of their own shall be promoted’.)

29.  In Latin America, indigenous rights have been developed and expanded to a significant extent through supranational frameworks (Hopkins 135). The American Convention on Human Rights (1969) (signed 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (Pact of San José) (‘Convention’) passed by the Organization of American States (OAS) has been widely used by indigenous communities seeking to advance their rights. Recourse to the Convention is through the implementing bodies of the Inter-American Commission on Human Rights (IACommHR) and the Inter-American Court of Human Rights (IACtHR). Starting with the landmark case of Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001) (IACtHR), the IACtHR has taken on an increasing role in interpreting indigenous rights and is described by one scholar as ‘one of the driving forces for the progressive development of the law’ (Garcia-Saytn 22–23). The IACommHR also advances indigenous rights through reporting and documenting on rights in its annual country reports.

30.  Latin American countries also form the significant majority of the 22 countries that have ratified the ILO (International Labour Organization) Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (adopted 27 June 1989, entered into force 5 September 1991) 1650 UNTS 383 (all but six signatories are from Latin America: ILO, ‘Ratifications of C169—Indigenous and Tribal Peoples Convention, 1989 (No 169)’). And while several of the countries discussed above—including Canada—have only recently signed on to the UNGA Res 61/178 ‘United Nations Declaration on the Rights of Indigenous Peoples’ (13 September 2007) GAOR 61st Session Supp 49 vol. 3, 15, Latin American countries were among the first group of countries to ratify.

31.  Indigenous rights have also featured in many recent constitutional reforms in Latin America, and are now recognized to varying extents in the constitutions of Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, and Venezuela (Aguilar, Lafosse, Rojas and Steward 44). The more recently amended Constitution of the Pluri-National State of Bolivia: 25 January 2009 (Bol) and Constitution of the Republic of Ecuador: 28 September 2008 (Ecuador) notably extend recognition of a multinational state and include traditional indigenous concepts, as well as greater autonomy and recognition of collective rights (group rights) (Uprimny 1590–1591) (constitutional protection of the autonomy of ethnic groups). The constitutionalization of indigenous rights has given rise to a greater use of legal recourse by indigenous peoples (Sieder 7). Importantly, however, the trend in constitutional development with regard to indigenous rights has not been uniform across Latin America in either scope or impact (Uprimny 1604).

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