R v Sparrow

Sparrow set the framework for analysis under s.35(1) of the Constitution Act 1982. Aboriginal rights are constitutionally protected. Government infringement requires justification: a valid legislative objective, consistent with the honour of the Crown, and respectful of priority interests of Aboriginal peoples.

Ronald Sparrow, a member of the Musqueam Indian Band, was charged with fishing with a net longer than permitted under his food-fishing licence. He invoked his Aboriginal right to fish for food.

(1) What is the scope of "existing aboriginal rights" in s.35(1)? (2) What test governs justification of infringement?

New trial ordered. Framework set out for s.35(1) analysis.

"Existing" means not extinguished by clear and plain intention. Aboriginal rights survive in their unencumbered form, not as regulated. Infringement of an Aboriginal right requires the Crown to justify on a Sparrow analysis: (1) valid legislative objective, (2) consistency with the special trust relationship and honour of the Crown — including consideration of priority, minimal impairment, consultation, and compensation where appropriate.

Dickson CJ and La Forest J held that s.35 protects pre-1982 unextinguished rights, but not in their regulated form. The Crown's fiduciary obligation translates into a justificatory burden when those rights are limited. Conservation is a valid objective; allocation must place Aboriginal food-fishing first after conservation.

The starting point for every s.35 analysis. Generated the Sparrow infringement-and-justification framework now applied across rights, title, and treaty contexts. Refined in Van der Peet, Delgamuukw, Tsilhqot'in and elsewhere.

R v Sparrow, [1990] 1 SCR 1075, 1990 CanLII 104 (SCC).

Dickson CJ, La Forest J, Wilson J, L'Heureux-Dubé J, Sopinka J