Case Brief Wiki

Facts about R v Sparrow[]

Sparrow was charged under the Fisheries Act for fishing with a drift net that was longer than was permitted with his Indian fishing license. Sparrow admitted the facts, but claimed that he had an existing aboriginal right to fish and thus the Act is inconsistent with 35(1) of the Constitution Act, 1982 and invalid. He was unsuccessful in the lower courts which he appealed to the Supreme Court..


  1. How are aboriginal rights recognized under 35(1)?
  2. What is the test for the extinguishment of aboriginal rights


The appeal and cross-appeal were dismissed; new trial ordered.


Dickson and La Forest, writing for a unanimous court, say that the word "existing" in 35(1) makes it clear that the section applies to rights that were in existence when the Constitution Act, 1982 came into effect and thus rights that were extinguished before 1982 are not protected under 35(1); existing does not refer to a right that was exercisable at any point in history. Further, the term "existing ... aboriginal rights" must be interpreted purposively to permit their evolution over time – they are not frozen in time as they were at the passage of the Constitution Act, 1982.

The Court puts a very high test on extinguishment of aboriginal rights - the government intention to extinguish a right must have been "clear and plain". Merely having regulations for an activity, as in the case at bar, does not indicate an intention to extinguish. Additionally , it is important to specifically classify the aboriginal right in question – in this case the right to fish for food and social and ceremonial purposes.

The next question is what the words "recognized and affirmed" mean in 35(1). Continuing with the purposive approach, the Court holds that 35(1) is a benefit incurring provision and therefore is given a large and liberal interpretation. Interpretation of aboriginal rights must also be done in light of the sui generis "special relationship" between the federal government and aboriginal people and recognize the fiduciary relationship which is owed; the government must act as a trustee rather than adversarially towards aboriginals.

Sparrow argued that 35(1) rights are more securely protected than Charter rights, and thus any infringement is automatically of no force or effect because there is no similar "reasonable limits" clause as in s. 1. The Court, however, states that legislation affecting the exercise of aboriginal rights will be valid if it meets a test of justification which arises from the fiduciary relationship; there is nothing in "recognized and affirmed" which makes such rights absolute. The Court lays out the test thusly:

  1. Is there an aboriginal right, i.e. is the activity claimed to be an aboriginal right an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right? (onus on claimant)
    1. Identify the nature of the claim
    2. Determine if it was part of a pre-European contact practice that was integral to the distinctive culture in question (central, not incidental, but need not be unique)
    3. If so, was there sufficient continuity between the modern activity and the traditional practice?
  2. If there is an aboriginal right, has it been extinguished? (onus on Crown)
    1. Does the legal regulation demonstrate a "clear and plain" intention to extinguish the right?
  3. If the aboriginal right has not been extinguished, can the claimant show a prima facie infringement? (onus on claimant)
    1. Is the limitation unreasonable?
    2. Does it pose undue hardship?
    3. Does the regulation deny rights holders the preferred means of exercising their right?
  4. Can the government justify the infringement? (onus on Crown)
    1. Is there a valid objective on the part of the Crown?
    2. Is the government employing means which are consistent with their fiduciary duty to the aboriginal nation at issue?
      1. Was the infringement as minimal as possible?
      2. Were their claims given priority over other groups?
      3. Was the effected aboriginal group consulted?
      4. If there was expropriation, was there fair compensation?

In the case at bar, Dickson and La Forest find that the issues at stake were not properly dealt with; the case needs to go back to trial and seek further evidence applying the test set out by the Court.


  • Aboriginal rights are not frozen in time – all aboriginal rights that were not extinguished before 1982 must be dealt with as they develop in the modern world.
  • In order to extinguish an aboriginal right, the Crown must make it "clear and plain" that it intended to do so; simply regulating an aboriginal right does not amount to extinguishing it.
  • The Crown owes a fiduciary duty to aboriginals in recognition of their "special relationship".
  • Establishes the test for the analysis of aboriginal rights in light of 35(1)