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Classic Digest of the Week — A Look Back at Sparrow

1990 CarswellBC 105

R. v. Sparrow

Supreme Court of Canada

Constitutional law | Judicial review of legislation | Principles of interpretation |

Indian fishing with net longer than permitted by band’s Indian food fishing licence — Indian right to fish for food constituting existing aboriginal rights protected by s. 35(1) of Constitution Act, 1982 — Court setting out approach for assessing legitimacy of legislation restricting existing aboriginal rights — Party challenging legislation bearing onus of proving prima facie infringement of s. 35(1) — Crown then carrying burden of proving justification — Court affirming setting aside of conviction and ordering of new trial.

The accused, a member of the Musqueam band, was charged under s. 61(1) of the Fisheries Act with fishing with a drift net that was longer than that permitted by the band’s Indian food fishing licence. The accused contended that, because he had an aboriginal right to fish, the net length restriction was inconsistent with s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing aboriginal and treaty rights. The accused appealed his conviction first to the County Court and then to the Court of Appeal. The Court of Appeal allowed the appeal and ordered a new trial. The accused appealed the court’s holding that s. 35(1) protects the aboriginal right only when exercised for food purposes and in failing to find the net length restriction in the licence was inconsistent with s. 35(1). The Crown cross-appealed the finding that the aboriginal right had not been extinguished before the date of commencement of the Constitution Act, 1982, and argued, alternatively, that the court erred in its conclusions concerning the scope of the aboriginal right to fish for food. It maintained that a new trial should not have been directed because the accused failed to establish a prima facie case that the reduction in length of the net unreasonably interfered with his right.


Appeal and cross-appeal dismissed; setting aside of conviction affirmed; new trial ordered.

Section 35(1) of the Constitution Act, 1982 applies to those rights in existence when the Act came into effect. Extinguished rights are not revived by the Act. An existing aboriginal right cannot be read as incorporating the specific manner in which it was regulated before 1982. Indeed, the phrase “existing aboriginal rights” must be interpreted flexibly so as to permit their evolution over time. The Court of Appeal’s finding that at the relevant time the accused was exercising an existing aboriginal right was supported by the evidence and not to be disturbed. To show that an aboriginal right has been extinguished, the Sovereign’s intention must be be clear and plain; here, the Crown failed to prove the aboriginal right to fish had been extinguished. Nothing in the Fisheries Act or its regulations demonstrates a clear and plain intention to extinguish the aboriginal right to fish. The issuance of individual permits for an extended period on a discretionary basis was a means of controlling the fisheries, not of defining underlying rights.

As to the scope of the right to fish, government regulations have only recognized the right to fish for food for over a hundred years. The nature of government regulations cannot be determinative of the content and scope of an existing aboriginal right, government policy can regulate the exercise of that right but such regulation must be in keeping with s. 35(1), which is the culmination of a political and legal struggle for the constitutional recognition of aboriginal rights. The approach to be taken to interpreting s. 35(1) is derived from general principles of constitutional interpretation, principles relating to aboriginal rights and the purposes behind the provision itself. The nature of s. 35(1) suggests that it be construed in a purposive way. Given that the provision affirms aboriginal rights, a generous, liberal interpretation of the words in the subsection is demanded. The fact that s. 35(1) is not subject to s. 1 of the Charter does not mean that any law or regulation affecting aboriginal rights will automatically be of no force or effect by the operation of s. 52 of the Constitution Act, 1982. Legislation that affects the exercise of aboriginal rights will be valid if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1). The government must bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1).

The first question to ask is whether the legislation in issue has the effect of interfering with an existing aboriginal right. If so, it represents a prima facie infringement of s. 35(1). The inquiry begins with a reference to the characteristics of the right at stake. As they develop an understanding of the sui generis nature of aboriginal rights, courts must carefully avoid applying traditional common law concepts of property. Sensitivity to the aboriginal perspective on the meaning of the right is crucial. To determine whether there has been a prima facie infringement certain questions must be asked. First, is the limitation reasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation. If prima facie interference is found the analysis moves to the issue of justification. The first step is to determine whether there is a valid legislative objective, such as an objective aimed at preserving s. 35(1) rights by conserving and managing a natural resource. If a valid legislative objective is found, the second step is to assess whether the legislation can be justified in light of the Crown’s responsibility to and trust relationship with aboriginal peoples. The nature of the constitutional protection afforded by s. 35(1) demands that there be a link between the justification question and the allocation of priorities in the fishery. The constitutional nature of the Musqueam food fishing rights meant that any allocation of priorities after valid conservation measures have been implemented had to give top priority to Indian food fishing.

The justificatory standard to be met may place a heavy burden on the Crown. However, government policy regarding the British Columbia fishery already dictates that, in allocating the right to take fish, Indian food fishing is to be given priority over the interests of other user groups. The constitutional entitlement embodied in s. 35(1) requires the Crown to ensure that its regulations are in keeping with that allocation of priority. The objective of this requirement is to guarantee that federal conservation and management plans concerning the salmon fishery treat aboriginal peoples in a way ensuring that their rights are taken seriously.

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