R v. Sparrow

In the 1990 case R v. Sparrow, The Supreme Court of Canada made a significant ruling in 1 S.C.R. 1075 about the application of Aboriginal rights under section 35(1) of the Constitution Act of 1982. 


Using a drift net that was 20 fathom longer than what was allowed under the Musqueam Band’s fishing license under the Fisheries Act of 1985, Ronald Edward Sparrow was captured fishing. Sparrow acknowledged all of the charges’ facts but defended himself by claiming that he was simply practicing his constitutionally protected right to fish as an aboriginal under section 35(1) of the Constitution Act of 1982.

At trial, the judge concluded that there was no inherent right to fish and that only treaty rights that already existed were protected by section 35. There was insufficient evidence to support the defense, thus an appeal to the County Court and a further appeal to the Court of Appeal were both rejected.


Justice Gérard La Forest and Chief Justice Brian Dickson delivered the court’s unanimous decision. They said Sparrow was exercising an “inherent” Aboriginal right that was granted and protected by section 35 of the Constitution Act of 1982 and that predated provincial legislation. They explained how section 35’s terms should be understood.(1).

The court determined that because of the government’s fiduciary responsibility to the Aboriginal peoples of Canada, Aboriginal rights, including the right to fish, that existed in 1982 are protected under the Canadian Constitution and cannot be violated without cause.



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