Document Type

Article

Publication Date

2021

Source Publication

Canadian Native Law Reporter Special Edition: Judicial Tales Retold: Reimagining Indigenous Rights Jurisprudence (2021)

Abstract

On appeal from the Supreme Court of Canada.

In 1984, Ronald Sparrow was charged under the federal Fisheries Act with fishing in the Fraser River in British Columbia with a drift net longer than permitted by the Musqueam First Nation’s food fishing licence. He admitted to fishing with such a net, but raised s 35(1) of the Constitution Act, 1982, as a defence. As a member of the Musqueam Nation, he claimed that he has an Aboriginal right, protected by that subsection, to fish for food, and that the restriction on net length interferes with this right and is therefore invalid.

Mr. Sparrow was convicted at trial in the Provincial Court, and this verdict was upheld by the County Court of Vancouver. The British Columbia Court of Appeal set aside the conviction, deciding that the appellant has an Aboriginal right to fish for food that is protected by s 35(1). However, as the appeal judges also decided that the right could still be regulated by federal legislation, if necessary for conservation, they sent the case back to trial so more evidence could be led on whether the restriction on net length was necessary for this purpose. The Supreme Court of Canada agreed, dismissing the appeal and ordering a new trial. The Supreme Court also laid down a test for justifiable infringement of Aboriginal rights that could be applied by lower courts. Mr. Sparrow appealed this decision to the Indigenous Nations Court.

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