Background
Ronald Edward Sparrow, a member of the Musqueam Band, was caught fishing with a drift net 45 fathoms (82 m) in length, 20 fathoms (37 m) 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 them on the ground that he was exercising his Aboriginal right to fish under section 35(1) 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(1).
Reasons of the court
The judgment of a unanimous Supreme Court was given by Chief Justice Brian Dickson and Justice Gérard La Forest. It held that Sparrow was exercising an "inherent" Aboriginal right that existed before the provincial legislation and was guaranteed and protected by section 35 of the Constitution Act, 1982. The Court interpreted each of the words of section 35(1).
Sparrow test
- 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 and so the case did not elaborate on how to determine whether a right is an aboriginal right. The case focused instead on whether that right was extinguished, whether that right was infringed, and whether that infringement was justified.
"Existing"
The word "existing" in section 35(1), 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. The Court 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 times, 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. The Court found that the Crown could not prove that the right to fish for food had been 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 it applies its powers in interference with Aboriginal rights. The words further suggest that Aboriginal rights are not absolute and may be encroached upon with sufficient reason.
Justification
In order to justify a prima facie infringement, the government needs to demonstrate the following (p. 1119):
- a valid legislative objective (including conservation, protection, and management but not a general "public interest" purpose)
- the infringement is minimally impairing
- that the aboriginal group in question has been consulted
- that there has been compensation in the case of expropriation
The Constitution Act, 1867, originally enacted as the British North America Act, 1867, is a major part of the Constitution of Canada. The act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. In 1982, with the patriation of the Constitution, the British North America Acts which were originally enacted by the British Parliament, including this Act, were renamed. However, the acts are still known by their original names in records of the United Kingdom. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.
Section 35 of the Constitution Act, 1982 provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. The section does not define the term "aboriginal rights" or provide a closed list; some examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land and the right to enforcement of treaties. There remains a debate over whether the right to indigenous self-government is included within section 35. As of 2006 the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.
Delgamuukw v British Columbia, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen, Delgamuukw-Gisday’wa, or simply Delgamuukw, is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title in Canada. The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia. The plaintiffs lost the case at trial, but the Supreme Court of Canada allowed the appeal in part and ordered a new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982, defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation.
Section 25 of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter. While section 25 is also the Charter section that deals most directly with Aboriginal peoples in Canada, it does not create or constitutionalize rights for them.
Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.
R v Van der Peet, [1996] 2 S.C.R. 507 is a leading case on Aboriginal rights under section 35 of the Constitution Act, 1982. The Supreme Court held that Aboriginal fishing rights did not extend to commercial selling of fish. From this case came the Van der Peet test for determining if an Aboriginal right exists. This is the first of three cases known as the Van der Peet trilogy which included R v NTC Smokehouse Ltd and R v Gladstone.
Calder v British Columbia (AG) [1973] SCR 313, [1973] 4 WWR 1 was a decision by the Supreme Court of Canada. It was the first time that Canadian law acknowledged that aboriginal title to land existed prior to the colonization of the continent and was not merely derived from statutory law.
Guerin v The Queen [1984] 2 S.C.R. 335 was a landmark Supreme Court of Canada decision on Aboriginal rights where the Court first stated that the government has a fiduciary duty towards the First Nations of Canada and established Aboriginal title to be a sui generis right.
Native Women's Assn of Canada v Canada, [1994] 3 S.C.R. 627, was a decision by the Supreme Court of Canada on section 2, section 15 and section 28 of the Canadian Charter of Rights and Freedoms, in which the Court decided against the claim that the government of Canada had an obligation to financially support an interest group in constitutional negotiations, to allow the group to speak for its people. The case resulted from negotiations for the Charlottetown Accord, in which various groups representing Aboriginal peoples in Canada were financially supported by the government, but the Native Women's Association of Canada (NWAC) was not. Since NWAC claimed the other Aboriginal groups primarily represented Aboriginal men, it argued that section 28 could be used so that section 2 required the government to provide an equal benefit to Aboriginal women, supposedly represented by NWAC.
R v Pamajewon, [1996] 2 S.C.R. 821, is a leading Supreme Court of Canada decision on Aboriginal self-government under section 35(1) of the Constitution Act, 1982. The Court held that the right to self-government, if it exists, is subject to reasonable limitations and excluded the right to control high-stakes gambling.
R v Gladstone, [1996] 2 S.C.R. 723 is a leading Supreme Court of Canada decision on non-treaty Aboriginal rights under section 35 of the Constitution Act, 1982. The Court modified the Sparrow test for the extinguishment of Aboriginal rights to give more deference to the government in protecting commercial fishing rights.
R v Badger, [1996] 1 S.C.R. 771 is a leading Supreme Court of Canada decision on the scope of aboriginal treaty rights. The Court set out a number of principles regarding the interpretation of treaties between the Crown and aboriginal peoples in Canada.
Kruger v R, [1978] 1 S.C.R. 104, was a decision by the Supreme Court of Canada on the relationship between the Indian Act and provincial game laws. The Indian Act is a federal law enacted under the British North America Act, 1867, which gives jurisdiction over Aboriginals to the federal government. The Court found that the Indian Act's statement that provincial laws may apply to Aboriginal peoples in Canada as long as they apply to other people protects laws even if these laws affect Aboriginals more than others.
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty to that land by another colonising state. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.
R v Marshall [1999] 3 S.C.R. 456 and R v Marshall [1999] 3 S.C.R. 533 are two decisions given by the Supreme Court of Canada on a single case regarding a treaty right to fish.
In Australia, Canada, New Zealand and the United States the term treaty rights specifically refers to rights for indigenous peoples enumerated in treaties with settler societies that arose from European colonization.
R. v. Powley, 2003 SCC 43, commonly called the Powley ruling, is a Supreme Court of Canada case defining Métis Aboriginal rights under section 35(1) of the Constitution Act, 1982.
R v Kapp, 2008 SCC 41 is a Supreme Court of Canada decision that held that a communal fishing license granted exclusively to Aboriginals did not violate Section 15 of the Canadian Charter of Rights and Freedoms. The case stemmed from an appeal by John Michael Kapp and a group of non-aboriginal commercial fishers who staged a "protest" fishery with the intention of being charged by law enforcement and challenging the constitutional status of an exclusive Aboriginal commercial fishing license.
In Canada, the duty to consult and accommodate with Aboriginal peoples arises when the Crown contemplates actions or decisions that may affect Aboriginal or Treaty rights. This duty arises most often in the context of natural resource extraction such as mining, forestry, oil, and gas.
The Van der Peet test or the Integral to a Distinctive Culture Test is a legal test used in Canada to determine whether an activity is considered an "Aboriginal right" under section 35 of the Canadian Constitution. The test was established in the landmark Supreme Court of Canada case R. v. Van der Peet (1996). The test has three parts, which must all be satisfied for the activity to be considered an Aboriginal right:
- The practice, custom, or tradition must be an element of a practice, custom, or tradition integral to the distinctive culture of the Aboriginal group claiming the right.
- The practice, custom, or tradition must have existed prior to contact with Europeans.
- The practice, custom, or tradition must have been central to Aboriginal society's way of life.
