Ronald Edward Sparrow, Appellant v. Her Majesty The Queen, Respondent Country/Territory Canada Type of court National - higher court Date May 31, 1990 Source UNEP, InforMEA Court name Supreme Court of Canada Judge DicksonMcIntyreLamerWilsonLa ForestLHeureux-DubéSopinka Reference number [1990] 1 S.C.R. 1075 Language English Subject Fisheries Keyword Indigenous peoples Constitutional law Fishing gear/fishing method Fishing authorization Abstract Appellant was charged under the Fisheries Act with fishing with a drift net longer than that permitted by the terms of his Band’s Indian food fishing license. He admitted that the facts alleged constituted the offence, but defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction contained in the Band’s license was invalid in that it was inconsistent with s. 35(1) of the Constitution Act, 1982. The Appellant was convicted. The trial judge found that an aboriginal right could not be claimed unless it was supported by a special treaty and that s. 35(1) of the Constitution Act, 1982 accordingly had no application. An appeal to County Court was dismissed for similar reasons. The Court of Appeal found that the trial judge’s findings of facts were insufficient to lead to an acquittal. Its decision was appealed and cross-appealed. The constitutional question before this Court was whether the net length restriction contained in the Band’s fishing license was inconsistent with s. 35(1) of the Constitution Act, 1982. The Supreme Court held that the appeal and cross-appeal should be dismissed. The constitutional question should be sent back to trial to be answered according to the analysis set out in the decision. It emphasized that section 35(1) of the Constitution Act, 1982 afforded aboriginal peoples constitutional protection against provincial legislative power. The first question to be asked was whether the legislation in question had the effect of interfering with an existing aboriginal right. Fishing rights were not traditional property rights. To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certain questions had to be asked. Was the limitation unreasonable? Did the regulation impose undue hardship? Did the regulation deny to the holders of the right their preferred means of exercising that right? If a prima facie interference was found, the analysis moved to the issue of justification. This test involved two steps. First, was there a valid legislative objective? Here the court would inquire into whether the objective of Parliament in authorizing the department to enact regulations regarding fisheries was valid. The objective of the department in setting out the particular regulations would also be scrutinized. If a valid legislative objective was found, the analysis proceeded to the second part of the justification issue: the honor of the Crown in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginal people had to be the first consideration in determining whether the legislation or action in question could be justified. There had to be a link between the question of justification and the allocation of priorities in the fishery. The constitutional recognition and affirmation of aboriginal rights could give rise to conflict with the interests of others given the limited nature of the resource. Within the analysis of justification, there were further questions to be addressed, depending on the circumstances of the inquiry. These included: whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation was available; and whether the aboriginal group in question had been consulted with respect to the conservation measures being implemented. Full text 1990scc49.html