The Sparrow Test
R v. Sparrow
Court: Supreme Court of Canada
Citation: 1 SCR 1075
TAGS: Fishing Rights; Harvesting; Constitutional
This case established the test for justifiable infringement by the Crown of Aboriginal rights recognized and affirmed by section 35(1) of the Constitution Act, 1982.
In 1984, a Musqueam Indian Band member was charged under the Fisheries Act for fishing with a drift net 45 fathoms in length – longer than the 25-fathom length permitted by his food fishing license. He did not dispute the facts but asserted that the restriction on net length was an infringement on his Aboriginal right to fish.
Section 35(1) of The Constitution Act, 1982 states that: “the existing Aboriginal and treaty rights of the Aboriginal people in Canada are hereby recognized and affirmed. “At trial and appeal, the Court found that the rights protected under s.35(1) were only protected if a special treaty existed. In 1990, the Supreme Court of Canada ruled that this was not the case, and that, despite government regulations and restrictions, his right to fish had not been extinguished.
Why this Case Matters:
This case was the first to clarify the rights protected by s.35(1) of the Constitution Act, 1982, and justification for infringement. The Court clarified that extinguished rights can’t be revived, and acknowledged that Aboriginal rights are inherent, including harvesting rights. The Court clarified that these rights were not to be interpreted as frozen in time, but interpreted flexibly with regard to their necessary evolution.
The Court created the two-part “Sparrow test” to determine if government action interferes with an existing Aboriginal Right, and if so, if that infringement is justified. If the government action is unreasonable, imposes undue hardship, or denies the rights holder their preferred means of exercising their rights, it is a prima facie infringement. The infringement can be justified where:
1. The government is acting pursuant to a valid legislative objective; and
2. The government’s actions are consistent with its fiduciary duty to Aboriginal Peoples.
If it is found that there is a valid legislative objective, the consistency with the fiduciary duty can be met where there has been as little infringement as possible, where there was fair compensation provided in situations of expropriation, and where the Aboriginal group(s) were consulted.
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