The Sparrow Test

R. v. Sparrow was the first Supreme Court of Canada case to test section 35 of the newly minted Constitution Act. It was a precedentsetting decision that set out criteria to determine whether governmental infringement on Aboriginal rights is justifiable, which became known as The Sparrow Test.

by Marlisse Silver Sweeney (JD ‘11)

Ron Sparrow prepared his fishing nets on the morning of May 25, 1984, the same way his father had taught him to, as he set out on his 16-foot aluminum boat to catch salmon in Canoe Passage and Ladner Reach, at the mouth of the Fraser River. Ron had been fishing in these waters, just a few kilometres away from the Musqueam reserve, since he was two years old. But on that particular spring day, Ron’s goal wasn’t just to catch fish, like his ancestors who had cast nets in those same waters since time immemorial. Ron was trying to get arrested.

Earlier that year, the food fishing licence issued by the Department of Fisheries and Oceans (DFO) limited members of the Musqueam Indian Band to fish with nets that were 25 fathoms (150 feet). Up until then, the Musqueam had used nets that were 75 fathoms in length. According to Ron, the shorter net length made fishing difficult, as the nets would bunch up and shrink down to just 40 or 50 feet. It was not long enough to fish efficiently or effectively.

The Band and Ron said the Musqueam food fishers were “really ticked off the DFO could just dictate to us,” said Ron in an interview this past October at the Band office. He was joined by his sister Leona Sparrow (LLB ’92), Intergovernmental Affairs Dept. for the Band; Band Councillor Wendy Grant-John, who was the chief at the time of the events; and Aaron Wilson (JD ’13), general counsel for the Musqueam Indian Band.

“They always said they had meaningful negotiation with us, but they never did have meaningful negotiation; they always just told us what we could do,” Ron explains. The community was also exhausted from the surveillance and sting operations the DFO had been conducting on their territory, attempting to catch people selling the fish they’d caught as food, according to Wendy. Together with their lawyer, Marvin R.V. Storrow, QC (LLB ’62), and other band council members, they devised a plan. “Would you be willing to put yourself forward to be arrested?” Wendy and the other members of the band council asked Ron. He readily agreed. “I was pretty well-known up and down the coast as a fisher,” he admits, modestly.

“This was going to be a big case”, explains Ron. The government was preparing accordingly. “There was going to be a lot more implications than one decision coming out of it,” he says. And so, after two failed attempts to be arrested, on May 25th Ron was finally charged under the Fisheries Act for fishing with the wrong-sized net, setting into motion one of the most important cases on Aboriginal rights in Canadian legal history.

When Associate Professor Darlene Johnston teaches her Aboriginal and Treaty Rights class to first-year law students at Allard Hall, just a few kilometres from Canoe Passage on the unceded traditional territories of the Musqueam people, she starts the term with the R. v. Sparrow decision. Darlene herself has a personal connection with the case. When it came down in the 1990s, she was working as a land claims research coordinator in her community, Chippewas of Nawash in Ontario. Fishers in the community had been charged with fishing over their quota, and Darlene and other lawyers used the Sparrow precedent to get recognition of a commercial fishing right for the Nation in R v. Jones. “We went from having three per cent of the quota in the waters around our territory to having exclusive commercial fishingrights. It did a lot of work for our community,” she says. R v. Jones was decided in 1993 by the Ontario Court Provincial Division. However, by 1996, Sparrow was “watered down”, according to Darlene, when the Supreme Court of Canada considered commercial fishing rights in R v. Van der Peet. Her Nation wouldn’t have been able to prove their commercial fishing rights once the Van Der Peet decision came down. It’s kind of a sad story, the way Van Der Peet undermines Sparrow,” she says. In that case, the court found that in order for an Aboriginal right to exist, it had to be central and integral to the distinctive pre-contact culture. To this

day, Sparrow still stands for food, social and ceremonial fishing, but Van der Peet sets out the law for Aboriginal commercial fishing rights. “It’s much easier to prove the right in Sparrow,” says Darlene. In R v. Sparrow, Ron didn’t deny he was using a net larger than the one specified in his licence. Instead, he argued that he was exercising the pre-existing Aboriginal right to fish for food, which was recognized and affirmed in the then newly minted constitution, and that the DFO restriction violated section 35. Ron was asking the Supreme court to consider the scope of Aboriginal and treaty rights for the first time – does Section 35 protect his existing right to fish or extinguishit? “I knew it had the potential to be important because section 35 hadn’t been dealt with, and I really believed in the justice of that section,” says Marvin.

The Supreme Court, with a decision delivered by then Chief Justice Brian Dickson and Justice Gérard La Forest, sided with Ron and confirmed that section 35 must be construed with “a generous, liberal interpretation…given that the provision is to affirm Aboriginal rights.” They found that Ron had an Aboriginal right to fish for food, social and ceremonial purposes, and that this right takes priority over all others, exceptconservation. “Sparrow really set the tone by providing an expansive understanding of the Aboriginal and treaty rights provision in the constitution,” explains Professor Douglas Harris (LLM ‘98), author of the awardwinning book Landing Native Fisheries: Indian Reserves & Fishing Rights in British Columbia, 1849–1925 (UBC Press, 2008). “It was a statement by the court that this constitutional entrenchment was going to be meaningful.” The case sets out a framework for contemplating section 35 rights. Is there an Aboriginal right? Has it been infringed? Is the infringement justified? “The onus for the first two components of the test rests with the Indigenous community and then shifts to the federal government to establish the infringement was justified”, explains Douglas. “Food and ceremony sometimes have been referred to as subsistence rights,” Darlene explains. “It’s limited in what it can provide a community. Commercial fishing rights have more impact in terms of economic development and quality of life.”

When the decision came down in 1990, the Musqueam community considered it a huge victory.

“The meaning of what this case said goes right to your spirit. It’s who you are…we are water people. It’s a profound, profound decision for the community,” says Wendy. “It was very recognizable within the community. People walked with pride,” added Leona. The two women recall going down to the docks on their ancestral territory and seeing community members watching their sons and daughters fish on the river. They describe it as galvanizing for the community. “It was really an amazing time for Musqueam,” says Wendy. “It got the dialogue going between community and individual family members.” “I think the Musqueam people have a right to be very proud about what they’ve done in the area of Canadian law vis-à-vis Indigenous [rights],” says Marvin. “I don’t think there’s another First Nation that’s done more than that.”

Wendy says it was more than just fishing rights at stake. “It was about being stewards of the river, which was traditionally what we were…This is an integral part of who we are as the Musqueam and we need to protect that.” However, the optimism in the community didn’t last. Ron and Wendy say the regulation and oversight by the DFO officers in the community got worse after the decision. “The the position we’ve taken. That’s how we interpret the Sparrow decision,” says Aaron, who added that the community is willing to work with the DFO on co-management of the fisheries, but both sport fishing and commercial fishing are threatening the Musqueam’s right to fish for food, social and ceremonial needs.

“At Musqueam we have always said we’re never going to chase the last salmon up the river,” says Aaron, who does not challenge the court’s conclusion that conservation takes precedence over the Musqueam’s rights. But when sports fishers have larger overall impacts than Musqueam community members, the rights the Musqueam fought to establish under Sparrow are threatened. “We didn’t go to the Supreme Court of Canada because we wanted to be regulated alongside everyone else. We went because we have an inherent right, and the gillnetting we do on the river is a continuation of the practices that we’ve used to harvest salmon since time immemorial.”

Aaron says the community is continually monitoring court cases and considering on a case-by-case basis if they need to intervene with a Musqueam perspective on a legal issue. He says the future of the Sparrow case lies in ensuring the right granted to the community is recognized and respected in “the way that the court intended it to be.”

“Sparrow really set the tone by providing an expansive understanding of the Aboriginal and

treaty rights provision in the constitution…

It was a statement by the court that this

constitutional entrenchment was going to be

meaningful.” — Professor Douglas Harris

Sparrow case said you cannot regulate a right out of existence…They’re regulating us almost to the extent they were prior to Ron’s case,” says Leona. Ron and Wendy say it’s worse. “I think it’s fair to say that we as a community have always maintained that we have a right to manage the resources in our territory, including the fish. So that’s always As for Ron, at 75, he’s finally retiring from fishing. He downplays his role in the case and defers to his community. “It was a very important thing that the Musqueam did as a whole,” he says, in his quiet, steady voice. “It wasn’t just me. I just happen to be the name on the trial.”