May 31st marked the 25th anniversary of the Sparrow Case: the day an Indigenous fisherman took on the Queen — and won. The 1990 Supreme Court decision has important prevalence throughout past and ongoing Indigenous rights legal challenges. The case created the “Sparrow Test” which has been used to interpret the “existing Aboriginal and Treaty rights… hereby recognized and affirmed” in Section 35 of the Constitution Act.
Musqueam Peoples have inhabited the Fraser River delta and neighboring areas and fished for sustenance since time immemorial. The Sparrow Case began back in 1984 when Ronald Sparrow, a Musqueam man and commercial fisherman, was charged and arrested for using a fishing net longer than that which his food-fishing license permitted. In his defence, Sparrow argued he had the right to fish, citing Section 35 of the Constitution Act which was added in 1982 to protect Indigenous rights. Though Section 35 had been passed, the rights it identified had yet to be defined. The Sparrow case would prove to be a defining moment for Indigenous Constitutional rights.
The Supreme Court of Canada ruled that Musqueam’s right to fish had not been extinguished. The judge who issued the ruling was informed by the interpretation of the phrase: “existing Aboriginal and Treaty rights are hereby recognized and affirmed” in Section 35. Mr. Sparrow, the Court deemed, had an “existing right to fish at the time of his arrest.”
This interpretation of Section 35 by the Supreme Court clarified that the government cannot override or infringe upon existing Indigenous rights without justification. While the case proved that rights that existed prior to the passing of the Constitution Act needed to be upheld, it left out rights that had been extinguished, such as Treaty making.
The Musqueam were tenacious in the sheer number of appeals required for the case to be heard, which ultimately led to the Supreme Court of Canada. It was an expensive, arduous and time consuming process for the Nation. Initially, the Sparrow case was heard in the Provincial Court of British Columbia which found Sparrow guilty; however, Sparrow argued this was a right to a historical practice rather than a specific treaty right and appealed to the British Columbia County Court which also found him guilty. Sparrow persevered to the British Columbia Court of Appeal which overturned the guilty conviction thus allowing for Sparrow and the Crown to take the case to the Supreme Court of Canada in 1988.
The landmark Sparrow decision “also set out a doctrine of priority that put conservation of stocks as a first priority; followed by an Aboriginal right to food, social and ceremonial fish; then an Aboriginal commercial fishery; and only then — and only if herring stocks were healthy enough to allow it — a non-Aboriginal fishery.”
The Sparrow ruling would later support the 1996 case of two Heiltsuk men, Donald and William Gladstone, whose case set a precedent that protects commercial aboriginal fishery in Heiltsuk territory based on the ‘pre-existing’ rights that Sparrow argued for so tirelessly.
When the Supreme Court set out to determine the scope of Aboriginal rights, it challenged Musqueam sovereignty over their fishing grounds. This disagreement was based on the assertion 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.” Musqeum argued, but were unable to prove, that having never ceded their territory through treaty meant that they remained the title holders to their land and waters. Thus, the Sparrow Case and Test could only go so far as to establish ‘pre-existing rights’, rather than outright title: the decision was still premised off of the colonial concept that the Doctrine of Discovery is a legal basis for Crown sovereignty and territorial claims. In 2015 the Truth and Reconciliation Commission (TRC) recommended that governments in Canada stop relying on this doctrine.
The Sparrow case brings up mixed reactions amongst those concerned with Indigenous rights. Although many recognize the Sparrow case as a milestone for affirming Indigenous rights, it also confirms that these rights are not absolute, and can be infringed upon— if the government can legally justify it. The Court failed to define what adequate consultation or compensation would look like in the context of rights infringement. Those considerations continue to play out, in cases against Trans Mountain being brought under Coldwater (2020) and in the legal challenge posed by Heiltusk in the wake of the devastating Nathan E. Stewart spill.
The Supreme Court established a set of criteria, known as the “Sparrow Test,” to interpret Section 35 as a way to determine what qualifies an Indigenous right. The test provides a way for lawmakers to determine that, If the government is able to prove that the infringement of rights is justified, it then needs to demonstrate that:
1. it has consulted with titleholders,
2. is infringing on their rights as little as possible, and
3. has offered compensation.
Despite its incompleteness, the Sparrow Test remains an important legal precedent today, an integral component of a string of victories that are foundational to RAVEN’s work. Now it remains to be seen: will a new era in the Supreme Court – one in which Indigenous Peoples are winning victory after victory in the court – shift legal interpretation to honor the United Nations Declaration on the Rights of Indigenous Peoples, Treaty rights and Truth and Reconciliation commitments? Time will tell. Meanwhile, tough and hard-fought Indigenous-led legal challenges will continue to shape the future and change the landscape for future generations.