The Legacy of R v Sparrow
In May of this year, thirty years will have passed since R v Sparrow,  1 SCR 1075 [Sparrow] was released. Sparrow was the first decision to apply section 35 of the Constitution Act, 1982 [Constitution], recognizing and affirming that Aboriginal rights predate Canada’s beginnings as a country. From the beginning, s. 35 was viewed as a promising provision for First Nations, Métis and Inuit peoples to seek protection for their cultures, values, and communities and even potentially to provide an avenue for Aboriginal self-determination. However, it was not until R v Sparrow that the Supreme Court of Canada (“Court” or “SCC”) began to define how s. 35 is to be interpreted. Here, I focus on the doctrine created in Sparrow that laid the groundwork for future Aboriginal rights and land claims decisions.
Facts and Procedural History
In Sparrow, the Court determined the right of the Musqueam Band, a west-coast Salish people, to fish in traditional territory along the Fraser River delta. Although the Musqueam had relied on the Fraser River for sustenance for generations, the Fisheries Act began to regulate the Band’s fishing activities, administering the Band a license to fish for food. In 1984, a member of the Musqueam band, Ronald Sparrow, was charged with fishing with a net larger than that which was permitted by this food license. In his defence, he argued that the Musqueam retained the right to fish on their traditional lands according to their ongoing traditional practices, and that this right was constitutionally protected by s. 35(1). Although Mr. Sparrow was convicted at trial, his case ultimately made its way to the Supreme Court, which had the task of defining for the first time the scope of s.35 protections.
“Existing” Aboriginal Rights
One of the crucial legal developments in Sparrow was that the Court defined “existing” Aboriginal rights for the first time as rights that existed at the time that the Constitution came into effect. The Court said that these rights arose due to the possession of territory by Aboriginal people prior to the assertion of the Crown’s sovereignty. In Guerin v the Queen,  2 SCR 335 [Guerin], the Court had held these rights to be these sui generis rights (Sparrow, para 59). Because of the sui generis quality of Aboriginal rights, the Court reasoned that ascertaining whether a current practice matches a traditional practice requires flexibility to account for the evolution of traditional practices (paras 23 & 27). That is, an existing right should not only exist pertaining to a traditional practice exactly as it was practised at any specific point in time. Rather, practices that have evolved over time may nonetheless be protected. This interpretation of Aboriginal rights signified a shift toward a more dynamic and forward-thinking approach to Aboriginal rights. Applying this approach to the facts, the Court found that the Musqueam had lived in the area in question as an organized society long before European settlement, and that fishing for food had been “an integral part of their distinctive culture” (para 40). Thus, the Court found that the Musqueam had an Aboriginal right to fish in the territory in question.
The Court also established that, for an Aboriginal right to be extinguished, it must be demonstrated that the Crown had a “clear and plain” intention to extinguish that right (para 37). Enacting legislation inconsistent with an Aboriginal right does not demonstrate a plain and clear intention to extinguish a right. The “clear and plain intention” test expanded on the dissent’s test in the then-leading Calder et al v Attorney-General of British Columbia,  SCR 313 decision, which required that Aboriginal title could only be extinguished by surrender to the Crown or by specific legislation. The other half of the split court in Calder suggested that a simple intention to exercise absolute sovereignty was enough to extinguish Aboriginal title. Thus, Sparrow confirmed a higher burden on the Crown to demonstrate an Aboriginal right has been extinguished. Additionally, the Court affirmed that, according to the principle of “honour of the Crown,” the government has a fiduciary duty to Aboriginal peoples, meaning the relationship is trust-like, not adversarial (paras 57-58). In Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation] the Court further underscored the point, saying that the honour of the Crown is “not a mere incantation” but requires concrete, diligent applications to be met (para 16).
However, in determining the scope of Aboriginal rights, the Court disagreed with the Musqueam Band’s argument that their right to fish implied a corollary right to self-regulate their fishing. In making this assertion, the Court stated, in no uncertain terms, that the adjudication of Aboriginal rights and treaty rights protected by s. 35 of the Constitution will not include adjudication of the Crown’s claim to sovereignty. Indeed, the Court unequivocally asserted 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” (Sparrow, para 49).
Aboriginal Rights are Not Absolute
The Court’s determination that s. 35 rights are not absolute is perhaps the most significant aspect of the Sparrow decision. The Court said that s. 35 aimed to constitutionalize a check on legislative power, to prevent the kinds of violations of Aboriginal rights that had occurred in the past. The Court found that the words “recognition and affirmation” in s. 35(1) implies that the rights are not absolute and that the Federal legislature maintains the power to legislate matters that impact “Indians” (para 62). Thus, Sparrow found that Aboriginal rights may be infringed by the Crown, if the Crown can justify the infringement. This is significant not only in its effects, but also because the Court effectively read into the Constitution a provision akin to s. 1 of the Charter of Rights and Freedoms, which is a provision that expressly states that the rights protected by the Charter may be limited to the extent it can be demonstrably justified. It exemplifies the power of the judiciary.
The Court in Sparrow established the test for determining whether the Crown is justified in limiting Aboriginal rights. First, it asks whether there has been a prima facie infringement of an Aboriginal or treaty right. Next, the test asks whether the Crown is justified in this infringement. This second part of the test asks whether there is a valid legislative objective; whether the infringement has been minimized; whether fair compensation has been offered where applicable; and whether Aboriginal groups were consulted or “at least informed”.
In R v Gladstone,  2 SCR 723 [Gladstone], the Court synthesized the Sparrow justification analysis (the second part of the test) into two parts, requiring a compelling and substantial legislative objective and an infringement constituent with the special fiduciary relationship between the Crown and Aboriginal peoples (Gladstone, para 54). An infringement consistent with the fiduciary relationship may require that priority be given to Aboriginal rights, that the right be infringed as little as possible, that fair compensation has been given for economic rights, or that there has been consultation with respect to the measures being implemented. If these questions are answered affirmatively, then the Crown can justify their limitation on the Aboriginal right. Exemplifying the test with the facts before them, the Court in Sparrow determined that environmental conservation was a valid legislative objective. In order for the rights to be prioritized, the Musqueam’s right to fish for food, social and ceremonial purposes should take precedent over all other uses of the fish except conservation. The Court ordered the case be re-tried based on the above test.
Inherent Versus Contingent Rights Theories
Sparrow is the foundational decision on s. 35 of the Constitution Act, 1982 and provides legal guidance on how Aboriginal peoples’ self-determination may be reconciled with Crown sovereignty. As Michael Asch and Patrick Macklem noted, the Court’s interpretation of Aboriginal rights as protecting those activities which have been practised since time immemorial signified the Court’s acceptance that Aboriginal rights are inherent rights, stemming from their own forms of government that predate colonial settlement of Canada. An inherent rights theory recognizes the existence of rights regardless of the Canadian state’s intervention. The alternative to an inherent rights theory is a contingent rights theory, whereby a right must be recognized by the Crown in order for it to exist. The Court’s recognition of inherent Aboriginal rights in Sparrow was not new—it affirmed Justice Dickson’s words in Guerin—but Asch and Macklem suggest that it did “cautiously open the door” for constitutional recognition of an Aboriginal right to self-government. At the same time, by expressing that there is no doubt as to the Crown’s claim to sovereignty, the Court indicated that its recognition of inherent Aboriginal rights was tempered. Asch and Macklem suggested that, with this, the Court may have sought to prevent the door for Indigenous self-determination claims from swinging wide open.
The Sparrow Legacy
Establishing an Aboriginal Right: R v Van der Peet
R v Van der Peet,  2 SCR 507 [Van der Peet] followed six years after the Sparrow decision, laying out a very specific test for determining if an Aboriginal right exists. Among a host of other requirements introduced, the Court in Van der Peet found that the words “integral part of their distinctive culture” from Sparrow gave rise to a requirement that a practice be of central significance to an Aboriginal society for it to constitute a right (Van der Peet, para 45). The Court increased the burden on Aboriginal claimants by suggesting the activity should be a defining feature of the culture in question (Van der Peet, para 59). The new requirements for establishing the existence of an Aboriginal right, in part developed from Sparrow, have since garnered criticism for putting too high a burden on Aboriginal rights claimants, making it very difficult to succeed in these claims (see Justice L’Heureux-Dubé’s dissent in Van der Peet, for example).
Relaxed Threshold for Infringement: R v Gladstone
While Van der Peet introduced a stringent test for Aboriginal rights claims, Gladstone introduced a broad scope of valid legislative objectives that can justify government infringement of Aboriginal rights. In Van der Peet, the Court characterized the purpose of affirming and recognizing Aboriginal rights as recognizing prior occupation of North America by Aboriginal peoples as well as reconciling that prior occupation with the assertion of Crown sovereignty (Van der Peet, para 43). The Court in Gladstone imported these purposes and went on to state that limiting Aboriginal rights according to important community objectives is a necessary part of reconciliation (Gladstone, para 73). Examples of what might constitute a valid legislative objective were “the pursuit of economic and regional fairness” and “the recognition of the historical reliance upon, and participation in, the fishery by non-Aboriginal groups” (Gladstone, para 75). In Delgamuukw v British Columbia,  3 SCR 1010, the Court again broadened the scope of compelling and substantial legislative objectives to include developing agriculture, forestry, mining, and hydroelectric power, the general economic development of a province, environmental protection, infrastructure growth, and settling foreign populations (para 165). Hence, as the Sparrow test was applied in its early years, the threshold for demonstrating a compelling and substantial legislative objective became lower and lower.
The Duty to Consult: Haida Nation v British Columbia (Minister of Forests)
Finally, by including a parameter of consultation in the test for a lawful infringement of Aboriginal rights, the Court in Sparrow, perhaps inadvertently, also laid the foundation for the duty to consult. This duty was only required insofar as it was needed to pass the Sparrow justification test until the 2004 Haida Nation decision, where the Court fully embraced a very substantive duty to consult. In Haida Nation, the Court principally cited Sparrow’s finding of a duty to consult with the Musqueam as they asserted their right to fish (para 21). The duty to consult has since become one of the primary litigious avenues for First Nations to protect their lands and their rights from various natural resource extraction or development projects.
The impact of Sparrow cannot be overstated. The decision has shaped virtually all of the jurisprudence on s. 35 Aboriginal and treaty rights and land claims since it was rendered. Though it has been clarified and significantly restricted since, Sparrow provided an important precedent for defining an Aboriginal right. It planted the seed that later grew into a more substantial and much-litigated duty to consult. However, the Court’s determination that Aboriginal rights are not absolute established the limitations of s. 35 protections that continue to underly all Aboriginal and treaty rights claims. The test for determining whether an infringement of an Aboriginal right is justified has endured in its two-part form, with applications to both rights claims and land claims. Notably, many of the major developments in Aboriginal rights jurisprudence occurred within 10 years of the Sparrow decision. As our approach to reconciliation as a society as well as settler understandings of Aboriginal histories, cultures and values continue to develop over the next thirty years, I wonder whether the limitations on Aboriginal rights and the ability for the Crown to justify those limitations will narrow, re-armouring the constitutional protections for those rights.