R. v. Sparrow (1990) was the first Supreme Court of Canada case to test section 35 of the Constitution Act, 1982. Initially convicted of fishing illegally, Musqueam man Ronald Edward Sparrow was cleared by the Supreme Court and his ancestral right to fishing was upheld.
Ronald Edward Sparrow was a Musqueam man and commercial fisherman from the Fraser River area in British Columbia. In May 1984, Sparrow was caught fishing contrary to section 61(1) of the federal Fisheries Act. He was charged and arrested for using a fishing net longer than his food-fishing licence permitted. In his defence, Sparrow alleged that the right to fish was an immemorial right protected by section 35 of the Constitution Act, 1982, which enshrines the rights of Indigenous peoples. For the next six years, Sparrow argued his case in front of provincial and appeal courts.
Court Trials and Rulings
The Sparrow case was first heard in the Provincial Court of British Columbia, where the judge found Sparrow guilty of the charges laid against him. The court ruled that a treaty or similar document had to clearly support an Indigenous right to fish. However, Sparrow was relying on his right to fish as a historical practice rather than a specific treaty right (see Indigenous Peoples: Treaties.)
Sparrow appealed his conviction to the British Columbia County Court, but that court also found him guilty. The next step was to appeal to the British Columbia Court of Appeal. This court overturned Sparrow’s conviction based on an error in the appeal court and consequently ordered a retrial. Displeased with the result, both Sparrow and the Crown took this case to the Supreme Court of Canada in 1988.
The question before the Supreme Court was whether the Musqueam had an ancestral right to fish and, if so, whether that right had been “extinguished” (or overturned) by federal legislation, such as the Constitution Act, 1982. The court’s ruling in 1990 outlined that the Musqueam did have an ancestral right to fish — one that hadn’t been extinguished by the Constitution. The court found that when Sparrow was arrested, he was exercising legitimate “existing” rights to fish. Therefore, his conviction was overturned and Sparrow won his case.
The Sparrow Test
As a result of the case, the Supreme Court established a set of criteria, known as the “Sparrow test,” to interpret section 35. Since section 35 does not specify what qualifies an Indigenous right, the test provides a way for lawmakers to determine that.
The first part of the test asks “Has a right been infringed on?”
Answer: A government activity threatens to infringe on an Indigenous right if:
- it imposes an “undue hardship” on First Nations
- it is considered “unreasonable” by the court
- it denies the right holders “their preferred means of exercising that right”
The second part of the test asks “What might justify an infringement on an Indigenous right?”
Answer: An infringement might be justified if:
- it serves a “valid legislative objective,” such as “conserving and managing a natural resource”
- it involves “as little infringement as possible” to achieve the intended result
- it is for the purposes of expropriation and “fair compensation” is provided
- the government has consulted with the Indigenous group in question about conservation measures being implemented
The Sparrow case is largely considered a significant victory for Indigenous rights in Canada. The ruling provided a code for interpretation of section 35 of the Constitution Act, 1982, and it confirmed the Crown’s constitutional duty to provide certain guarantees to Indigenous peoples (see Law of Fiduciary Obligation.) However, some critics argue that, while the Sparrow ruling upholds Indigenous rights, it also confirms that the government can legally justify infringing on those rights. Future cases on Indigenous rights, including Haida Nation v. British Columbia (2004) and Taku River Tlingit First Nation v. British Columbia (2004), further explored issues left unresolved by the Sparrow case, namely compensation and consultation regarding the infringement of Indigenous rights.
Lisa Monchalin, The Colonial Problem: An Indigenous Perspective on Crime and Injustice in Canada. University of Toronto Press, 2016
Kulchyski, Peter, ed. “Sparrow,” in Unjust Relations: Aboriginal Rights in Canadian Courts. Oxford University Press, 1994 (212–237)