Nettheim, Garth --- "Sparrow v The Queen (Indigenous fishing - regulation - consistency with Constitution s.35(1) which recognises and affirms 'existing aboriginal ... rights' - justification required)" [1991] AboriginalLawB 7; (1991) 1(48) Aboriginal Law Bulletin 12

• Sparrow V The Queen
• Indigenous Fishing-Regulation-Consistency With Constitution S.35(1) Which Recognises And Affirms "Existing Aboriginal ... Rights"-Justification Required.

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Sparrow v The Queen

Indigenous fishing - regulation - consistency with Constitution s.35(1) which recognises and affirms "existing aboriginal ... rights" - justification required.

Sparrow v the Queen

Supreme Court of Canada

Dickson CJ and La Forest J; Lamer, Wilson, L'Heureux-Dube and Sopinka JJ concurring.

31 May 1990 - [1990] 4 WWR 335

Casenote by Garth Nettheim

The appellant, a Musqueam Indian, was convicted in British Columbia for the offence of fishing with a drift net longer than that permitted by the terms of his Band's Indian food fishing licence. The license, with its net length restriction, was issued under Canada's Fisheries Act 1970 and regulations under that Act. His defence was that it was inconsistent with s.35(1) of the Constitution Act, 1982:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.

The issues presented were of such importance that many other parties intervened, including The Assembly of First Nations, conservation interests, commercial fishing interests and the Attorneys-General of six of Canada's ten provinces. It was the first occasion on which the Supreme Court had the opportunity to consider the scope of s.35(1) of the Constitution Act. In the event, the Supreme Court made it clear that s.35(1) is limited to rights which were "existing" at the time when the Constitution Act, 1982 came into effect; consequently it did not revive rights which had been extinguished prior to that time.

But the Crown failed to discharge its burden of proving that the aboriginal right had been extinguished. An aboriginal right is not extinguished merely by its being controlled in great detail by the regulations under the Fisheries Act.

What is sufficient to extinguish an aboriginal right? In Calder v Attorney-General of British Columbia [1973] S.C.R 313, a case concerned with aboriginal title to land, six justices of the Supreme Court had divided evenly on this question (the seventh justice disposed of the case on another ground). Of the two contending judgements, those of Judson J and Hall J, the Supreme Court in Sparrow seems clearly to prefer the latter:

...Hall J in that case stated (at p.404) - that "the onus of proving that the sovereign intended to extinguish the Indian title lies on the respondent and that intention must be `clear and plain'" (emphasis added). The test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right. (p1.).

The Court held that nothing in the Fisheries Act or its detailed regulations demonstrated a clear and plain intention to extinguish the Indian aboriginal right to fish. These fishing permits were simply a manner of controlling the fisheries, not of defining underlying rights.

The nature of the government regulations cannot be determinative of the content and scope of an existing aboriginal right. Government policy can however regulate the exercise of that right, but such regulation must be in keeping with s.35(1). (p.18).

The next question then, was how to approach the question of whether a regulation is in keeping with s.35(1). Rights that are recognized and affirmed are not absolute. Section 35(1) is to be construed in a purposive way, the court said. A generous, liberal interpretation is demanded given that the provision is to affirm aboriginal rights. Legislation that affects the exercise of aboriginal rights will be valid if it meets the test for justifying an interference with a right recognised and affirmed under s.35(1). After referring to the Crown's fiduciary relationship in regard to aboriginal peoples the Court said:

.. federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. (p.25)

The first question to be asked is whether the legislation in question does have the effect of interfering with an existing aboriginal right; if so, there is a prima facie infringement of s.35(1). Aboriginal rights must be considered in aboriginal terms, not in terms of traditional common law concepts.

Certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation. (p.28)

If a prima facie interference is found, the analysis moves to the issue of justification. This objective test involves two steps. First, is there a valid legislative objective? The justification of conservation and resource management would be uncontroversial. But even if a valid legislative objective is found, the second step of the justification issue arises concerning "the honour of the Crown ... in dealings with aboriginal people" (p.30).

The constitutional nature of the Musqueam food fishing rights means that any allocation of priorities after valid conservation measures have been implemented must give top priority to Indian food fishing. (p.31)

The Court noted that, while the justificatory standard to be met may place a heavy burden on the Crown, the Fisheries Act and regulations had already given top priority to Indian food fishing over other interests.

The objective of this requirement is not to undermine Parliament's ability and responsibility with respect to creating and administering overall conservation and management plans regarding salmon fishery. The objective is rather to guarantee that those plans treat aboriginal peoples in a way ensuring that their rights are taken seriously.

Within the analysis of justification, there are further questions to. be addressed, depending on the circumstances of the inquiry. These include the questions of whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respect to the conservation measure being implemented. (p.34).

The Supreme Court's decision serves to demonstrate that there may be value in the constitutionalisation of aboriginal rights. But the judgement is also of interest in jurisdictions where there is no constitutional status for such rights, particularly for the comments on the Crown's fiduciary relationship to aboriginal peoples; for the insistence that aboriginal rights be respected in their own terms and not be required to fit within common law concepts; and for the endorsement of the approach of Hall J in Calder in requiring clear and plain intention before aboriginal rights are taken to have been extinguished. The decision is likely to be cited in Australian courts.