The Sparrow Framework for s.35 Rights

What s.35 protects

Section 35(1) of the Constitution Act 1982 reads:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Section 35 sits outside the Charter. It is not subject to s.1 (the reasonable-limits clause) or to s.33 (the notwithstanding clause). The Sparrow framework supplies the test for infringement and justification.

"Existing"

R v Sparrow ([1990] 1 SCR 1075) held that "existing" means not extinguished before the Charter came into force on 17 April 1982. Extinguishment requires clear and plain intention. Existing rights survive in their unencumbered, not regulated, form.

Two-step Sparrow analysis

Step 1 — Prima facie infringement. Has the Crown's conduct unreasonably limited the right? Three factors:

• Is the limitation unreasonable?
• Does the regulation impose undue hardship?
• Does the regulation deny the holders of the right their preferred means of exercising it?

Step 2 — Justification. If a prima facie infringement is shown, the burden shifts to the Crown.

(a) Valid legislative objective. Conservation of natural resources is the paradigm example. Public interest objectives that reflect the special trust relationship between the Crown and Aboriginal peoples may also qualify.

(b) Honour of the Crown. The means must be consistent with the special trust relationship. This includes:

• Priority — Aboriginal food, social and ceremonial fishing rights take precedence after conservation, before commercial and sport interests.
• Minimal impairment — has the Crown chosen the least-rights-restrictive means available?
• Consultation — has the affected Aboriginal community been adequately consulted?
• Compensation — where the right is significantly limited, has fair compensation been considered?

How Haida fits

Haida Nation v BC (2004) extends the analysis to the pre-proof phase. The Crown's duty to consult and accommodate is triggered when the Crown has actual or constructive knowledge of a potential right and contemplates conduct that may adversely affect it. The depth of consultation is proportionate to the strength of the case for the right and the seriousness of the potentially adverse effect.

The Haida duty is owed by the Crown, although procedural aspects may be delegated to project proponents. The constitutional obligation always remains with the Crown.

How Tsilhqot'in fits

Tsilhqot'in (2014) tightens the Sparrow framework as applied to title. The Crown's fiduciary obligation, once title is established, ordinarily requires consent. Where consent is not forthcoming, infringement is justifiable only if the Crown demonstrates a compelling and substantial public objective and meets the proportionality demands of the fiduciary relationship.

Common errors

• Forgetting that "existing" rights are protected in their unregulated form.
• Treating Sparrow as a Charter-style proportionality test. It is not — the s.1 vocabulary does not transplant cleanly.
• Conflating rights and title. Sparrow governs both, but the proof requirements and the strength of fiduciary protection differ.
• Skipping consultation. Inadequate consultation is itself a basis for invalidating Crown conduct.