Testing: From “Use and Occupancy” to “Culture” in the Sparrow Decision
In the Court’s view, the reason for concluding that the Musqueam Nation enjoys a right to fish lies not in the presence of state action conferring such a right, but instead arises from the fact that fishing is integral to Musqueam self-identity and self-preservation…. The nature and content of an aboriginal right is determined by asking what the organized aboriginal society regarded as “an integral part of their distinctive culture”….To be so regarded those practices must have been integral to the distinctive culture of the above society from which they are said to have arisen.
…The content of aboriginal rights thus is to be determined not by reference to whether executive or legislative action conferred such a right on the people in question, but rather by reference to that which is essential to or inherent in the unique relations that native people have with nature, each other, and other communities.
—Chief Justice Dickson, Supreme Court of Canada, 1990, Reasons for Judgment, in R. v. Sparrow.35
The next, and final, important case that preceded Delgamuukw v. R., was R. v. Sparrow. It began in the same year, 1984, that the Gitksan and Wet’suwet’en filed their Statement of Claim. On May 25, 1984, Reginald Sparrow, a member of the Musqueam band, was charged with fishing for salmon using a drift net that was longer than allowed by the Department of Fisheries-issued permit for Indian food fishing. Sparrow defended himself by saying he was practising an “existing Aboriginal right” protected under Section 35(1) of the Constitution Act, 1982. Sparrow was first found guilty in the Provincial Court of British Columbia. When the case was appealed to the British Columbia Court of Appeal, the appellate court agreed that Sparrow’s Aboriginal right to fish had not been extinguished prior to 1982, but ruled that the mesh size regulations of the Department of Fisheries were still applicable. At issue when the appeal of the case went forward to the Supreme Court of Canada was whether the Musqueam First Nation could assert an Aboriginal right to fish that would override federal regulations which required a fishing permit and restricted the use of a drift net to a maximum length of 25 fathoms. The Musqueam asserted that their right to fish was an “existing aboriginal right…recognized and affirmed by s. 35(1) of the Constitution Act, 1982, and therefore paramount over federal law.” To be regulated in the exercise of their right by Department of Fisheries and Oceans regulations was inappropriate and unconstitutional, they claimed.
The Supreme Court of Canada agreed with the Musqueam, and in their decision handed down on May 31, 1990 called for “a generous, liberal and purposive interpretation of s. 35(1).”36 They found first that Aboriginal rights that exist in common law are recognized and affirmed by s. 35(1) of the Canadian Constitution that is paramount over all other laws. The Constitution, in other words, is the supreme law of the land.37 As a result, laws that interfere with the exercise of constitutionally-protected Aboriginal rights must conform to constitutional standards of justification. For example, where a resource, like fish, is scarce, Aboriginal rights should take precedence over commercial and sports interests and be limited only by the requirements of conservation of the resource.
The Sparrow decision reiterated that the Crown must show a clear, plain and explicit intention to extinguish Aboriginal title, and that laws of general application applied to Indians should not be construed as having effected “implicit extinguishment.” It is a common legal strategy in Aboriginal title litigation for lawyers for all parties to present judges with a number of possible interpretations: a kind of prioritized “wish list” of rulings their clients could live with. These various alternative arguments need not be logically consistent, and often begin from radically different premises. The Province of British Columbia’s legal argument in support of “implicit extinguishment” constitutes such an alternative, or “fall back” position. Should a judge find that Aboriginal title and rights did exist at the time the British arrived, and therefore that some form of extinguishment of Aboriginal title was required, the Province of B.C. puts forward their argument that colonial governments in British Columbia have consistently demonstrated their implicit
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