Image retrieved from http://indigenousfoundations.web.arts.ubc.ca/r-v-sparrow-press/
Tansi Nîtôtemtik,
As we discussed in an earlier post about Canadian constitutional law, Indigenous affairs fall under federal jurisdiction and Aboriginal rights were officially recognized and affirmed in 1982. Of course, these rights were not invented at this time; rather, section 35 functionally constitutionalized the pre-existing rights of Indigenous peoples. Today’s post will explore the ways that courts have developed on the unique (or sui generis) nature of Aboriginal rights.
The leading case on Aboriginal rights in Canadian jurisprudence is R v Sparrow.[1] Ronald Sparrow, a member of the Musqueam Indian Band (located in the lower mainland of British Columbia), was arrested for violating restrictions set out in the regulations of the province’s Fisheries Act. The offence was fishing with a drift-net longer than the terms of the band’s fishing license permitted.[2] Following his arrest, the members of Sparrow’s community joined together to argue, among other things, that they had an Aboriginal right to fish, that section 35 protected that right, and that the net length restriction constituted an unjustifiable infringement on the Musqueam band’s Aboriginal rights.
The case’s significance is many-fold. In it, the Supreme Court of Canada affirmed that section 35 “prevented the extinguishment of Aboriginal rights found to exist on or after April 17, 1982. It also affirmed that section 35(1) was not subject to the limitation on rights provided by section 1 of the Canadian Charter of Rights and Freedoms. Nevertheless, it did allow for the infringement of Aboriginal rights on or after April 17, 1982 through the justificatory test it created.”[3]
Shortly after Sparrow, Dorothy Van der Peet, a member of the Stó:lō First Nation (also located British Columbia’s lower mainland region) was similarly arrested for violating restrictions within the Fisheries Act. The charge against Ms. Van der Peet, however, was for the offence of selling fish caught under the authority of an Indian food fish license.[4] This license “permitted Aboriginal people to fish solely for the purposes of sustenance and ceremonial use, [but] prohibited the sale of fish to non-Aboriginal people. Van der Peet challenged the charges, arguing that as an Aboriginal person, her right to sell fish was protected under Section 35 of the Constitution Act.”[5] The decision in this case significantly narrowed the approach to characterizing Aboriginal rights that had been put in place by Sparrow a few years earlier.
Ten years later, this culturally distinctive narrowing was affirmed in R v Sappier.[6] Dale Sappier and Clark Polchies, Maliseet individuals from the Woodstock First Nation located in the province of New Brunswick, and Darrell Joseph Gray of Mi’kmaq heritage, were charged with “unlawful possession or cutting of Crown timber.”[7] They claimed Aboriginal rights to harvest timber for personal use – because their planned uses had no commercial element, the Supreme Court found that the respondents had successfully made out their defence. The trend seems to be in the direction of never allowing Indigenous groups to financially benefit from their rights.
Together, these cases have evolved into the test we use today to interpret the scope of Aboriginal rights and to determine whether government interference with these rights is justified. In simplest terms, the test is as follows. The claimant must prove that there is legislation or a governmental decision that interferes with an Aboriginal right. To do this, it is necessary to characterize the Aboriginal right in question: exactly what activity, for what purpose, and where? They must prove that the practice was integral to the distinctive culture or way of life at the time of contact/control. The right must not have been extinguished by the expression of clear intent prior to 1982. Finally, they must prove that the legislation or governmental decision interferes with the exercise of that Aboriginal right by imposing undue hardship or denying preferred means of exercising the right.
If the claimants are successful, the burden shifts to the government to justify the interference. In doing so, they must demonstrate that the restriction has a valid legislative objective and is consistent with the fiduciary duty of the Crown. They must also show that the claimants have been given priority allocation and or access to the resource in question. Other factors that may be relevant include whether the restriction is minimally infringing, whether the claimants have been consulted, and whether the claimants have been fairly compensated.[8]
The Sparrow test continues to evolve as the number of Aboriginal rights claims continues to grow. Join us for the rest of the week as we distinguish Aboriginal rights from Aboriginal title and explore recent rights and title case law.
Until next time,
Team ReconciliAction YEG
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[1] R v Sparrow, [1990] SCJ No 49.
[2] Ibid.
[3] John Borrows and Leonard Rotman, Aboriginal Legal Issues: Cases, Material, and Commentary, 4th ed (Markham: LexisNexis Canada Inc., 2012) at 113.
[4] R v Van der Peet, [1996] SCJ No 77
[5] UBC Faculty of Arts Indigenous Foundations, “Van der Peet Case”, online: http://indigenousfoundations.arts.ubc.ca/van_der_peet_case/
[6] R v Sappier, [2006] SCJ No 54.
[7] Ibid.
[8] This breakdown of the Sparrow Test comes from Matthew Lewans, Course Notes from Constitutional Law 435A (Faculty of Law, University of Alberta, 2016).
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