To highlight the National Day of Truth and Reconciliation, it is only appropriate to discuss a landmark case of the Supreme Court relating to Aboriginal law. The importance of R. v. Sparrow (1990) cannot be overstated; it is said to be the first case of the Supreme Court to truly explore the boundaries of the purview of section 35(1) of the repatriated constitution of 1982. In particular, section 35 of the Constitution Act, 1982 officially enshrined Aboriginal and treaty rights in Canadian law, and section 35(1) is concerned with “The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed.” For clarity’s sake, “R” stands for Regina or Rex, depending on the gender of the ruling monarch at the time of the case and is thus meant to symbolize the monarchy’s representational role in matters of the Crown such as the Supreme Court. Sparrow refers to the complainant, Ronald Edward Sparrow.
Before further dissecting the legal ramifications of R. v. Sparrow, it is necessary to state the salient facts. In 1984, Ronald Sparrow, a Musqueam band member, was arrested for using a 45 fathoms (82 m) long drift net while fishing, a length that exceeded by 20 fathoms (37m) the length limit clearly indicated on the band’s fishing license under the Fisheries Act.
The crux of the point of contention between Sparrow and the Crown lay in the legality of imposing a length restriction on fishing nets. More specifically, there were concerns raised by Sparrow on the matter that the length restriction could infringe the provisions of s. 35(1). To determine whether or not an infringement of an aboriginal right was justified, an infringement test of sorts was designed by the Supreme Court. The steps outlined in this test are as follows:
- Does the law in question conflict with an existing Aboriginal law? In this question, the term “existing” simply refers to those rights that had not been “extinguished” before the Constitution Act, 1982 came into effect. In turn, the word “extinguished” is defined as the “clear and plain intention” to remove rights. With this question, the court’s aim is to find whether or not “the purpose or effect” of the law being called into question “unnecessarily infringes” the right of the Aboriginal person as defined in section 35. If it does infringe the right, the infringement is of the prima facie sort, which is a Latin phrase that means that the infringement exists as a fact or is justifiable until it is disproven. The burden of justification will then thus fall upon the Crown.
- The Crown must use these justifications:
- The validity of the goal of the law needs to be shown. The purpose of the law needs to be “compelling and substantial.” The grounds of justification include: “conservation, and natural resource management”, and the protection of the population as they are all valid goals. It is worth noting that using “public interest” as a justification is too far-reaching to be considered a valid goal.
- The Crown has a fiduciary responsibility towards Aboriginal peoples. It is worth questioning if the infringement justifies the fiduciary duty. In particular, it may be necessary to consider if Indigenous groups were consulted, if the law only affects the protected right in a greatly limited way, or whether due compensation was given when there were expropriations involved.
If the infringement is justified, the law retains its validity. Otherwise, it is rendered null and void, and is thus inapplicable to the impacted Indigenous group.
As such, the importance of R. v. Sparrow lies in the fact that the Aboriginal rights that existed at the time of the adoption of the Constitution Act, 1982 have to be justified on the basis of the government’s fiduciary role in relation to Aboriginal peoples, if they are to be infringed upon. In this National Day of Truth and Reconciliation, it is necessary to re-affirm that such a precedent-setting case should not go unnoticed in the history of Aboriginal and treaty rights.
By: Charles Mckaig