Sparrow Decision of the Supreme Court of Canada, 1990

… a core concept in Governance and Institutions and Atlas100

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Concept description

The Sparrow Decision of the Supreme Court of Canada (1990, reference below, link to decision on right) deals with the content and the extent of Aboriginal rights, based on a case involving fishing rights.

Gérald Beaudoin (reference below) summarizes the case as follows:

“Section 35 of the Constitution Act, 1982, enshrines the rights of aboriginal peoples. In the Sparrow case (1990), an aboriginal person fished contrary to the provisions of federal law. In his defence he alleged that the right to fish was an immemorial right protected by treaty by virtue of section 35. The Supreme Court upheld the right and set out a code of interpretation for section 35. The Court established 5 criteria: (1) the word “existing” in section 35 referred to rights which existed on 17 April, 1982; (2) the intention of the legislature to extinguish a law must be clear and express; (3) a right guaranteed may be limited, for the rights recognized and affirmed are not absolute; (4) the federal government has a fiduciary role in relation to aboriginal peoples, and finally; (5) section 35 must be interpreted liberally; does a law or regulation undermine an existing right? Is the provision justified? Does it have a valid purpose? Does it detract as little as possible from an existing right? The Sparrow case is to section 35(1) of the Constitution Act, 1982, what the Oakes Case is to section 1 of the Canadian Charter of Rights and Freedoms.”

Sources

Supreme Court of Canada, R. v. Sparrow, Supreme Court Judgments, at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/609/index.do, accessed 2 October 2016.

Gérald Beaudoin (2013), Sparrow Case, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/sparrow-case/, accessed 2 October 2016.

Topic, subject and Atlas course

Indigenous Governance in Governance and Institutions and Atlas100.

Page created by: Ian Clark, last modified 2 October 2016.

Image: Supreme Court of Canada, R. v. Sparrow, Supreme Court Judgments, at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/609/index.do, accessed 2 October 2016.