Aidan Seto
R. v. Sparrow, [1990] 1 S.C.R. 1075
Key terms/notes
Please note that this case brief uses “Indigenous” and “Aboriginal” peoples interchangeably. Both “Indigenous” and “Aboriginal” peoples refer to the same meaning of “a collective name for the original peoples of North America and their descendants. Sometimes the term ‘Aboriginal peoples’ is also used.”
Background Info
Musqueam is an Indigenous community with over 1,300 members. The members of the Musqueam community live in a small portion of the traditional territory located south of Marine Drive near the mouth of the Fraser River. They carry out activities such as fishing, hunting, trapping, and gathering. The increase of European settlement near the lower mainland led to the introduction of new laws and regulations set by the non-aboriginal settlers.
In 1984, the Fisheries Act had been issued for one year. The license set out several restrictions including one that required drift nets to be limited to 25 fathoms in length. Shortly after the license was introduced, Ronald Edward Sparrow was arrested for fishing with a net that was 45 fathoms in length.
Section 35 of the Constitution Act, 1972
According to s.35 of the Constitution Act 1982, this section “provides a solid constitutional base upon which subsequent negotiations can take place and affords Aboriginal peoples constitutional protection against provincial legislative power.” In simple terms, this implies that Canadian legislation acknowledges the existence of Indigenous communities and that Canadian laws must respect these Indigenous beliefs and values. The term “recognition and affirmation” was also introduced in court as s.35 of the Constitution Act recognizes that there is a mutual sense of “trust” between Canadian legislation and Indigenous communities.
Section 52 of the Constitution Act, 1982
S.52 of the Constitution Act is also relevant as it states that “Any law or regulation affecting Aboriginal rights will not automatically be of no force or effect by the operation.” Hence, since the Fisheries Act was issued by someone outside of the Indigenous community, it can be argued that the Fisheries Act “affects” Aboriginal rights.
Property Rights within Fishing
The court established that “fishing rights are not traditional property rights.” Thus, the court emphasized how dealing with the Fisheries Act and its effect on Indigenous society requires consideration. Another dimension of this argument includes colonialism as the court wanted to ensure that the Indigenous community was not oppressed into fitting a certain mould from the laws and regulations of Canadian society.
Holding/Conclusion
The court concluded by appealing to Sparrow, stating that “on the basis of the trial judge's conclusion, Mr. Sparrow was fishing in ancient tribal territory where his ancestors had fished ‘from time immemorial.’” The trial judge also noted that after weighing all aspects of the case, “Mr. Sparrow was exercising an existing Aboriginal right.” Hence, it is justified that there is no malleability towards the length of the Indigenous people’s fishing nets since the action of “fishing” was carried out within land that the Indigenous community had been inhabiting for longer than the non-Aboriginal settlers.
Dissenting Opinions
There were dissenting opinions regarding the term “Aboriginal rights” as Sparrow said that his community’s “Aboriginal rights were not based on any special treaty.” In the context of R. v. Sparrow, a “special treaty” refers to mutual agreements or understandings between the Aboriginal peoples and non-aboriginal people. The case also validated Canadian legislation by stating that “the constitutional recognition and affirmation of Aboriginal rights may give rise to conflict with the interests of others given the limited nature of the resource.” Thus, the frequency of the Indigenous people’s hunting, gathering, and fishing activities can be questioned as there is a “limited nature of resources” available.
Additional Info
Despite the ruling in favour of Sparrow, the court also acknowledged policies noted by the British Columbia Fishery as they understood that both sides had their valid arguments and dissenting opinions. Therefore, mutual respect between government policies from the British Columbia Fishery and Aboriginal communities was noted as the most ideal.
Bibliography
Government of Canada. “Indigenous Peoples and Communities.” Government of Canada, January 16, 2024.
Musqueam Community. “Musqueam’s Story.” Musqueam A Living Culture, May 27, 2023.
The University of British Colombia. “Sparrow Case.” indigenousfoundations.arts.ubc.ca, 2009.
Legislative Services Branch. “Consolidated Federal Laws of Canada, Fisheries Act.” Fisheries Act, February 16, 2024.
Supreme Court of Canada. “R. v. Sparrow.” R. V. Sparrow - SCC cases, May 31, 1990.
Isaac, Thomas. BALANCING RIGHTS: THE SUPREME COURT OF CANADA, R. v. SPARROW, AND THE FUTURE OF ABORIGINAL RIGHTS. Accessed March 1, 2024. n.d.
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