What was R. v. Sparrow (1990)?

R. v. Sparrow is the 1990 Supreme Court of Canada decision that established the analytical framework for protecting Aboriginal rights under section 35 of the Constitution Act, 1982. The unanimous decision was the Supreme Court's first major interpretation of section 35 and continues to govern Aboriginal-rights litigation. The decision clarified that section 35 protected existing rights as living, evolving rights rather than as frozen in 1982 form.

Ronald Edward Sparrow, a member of the Musqueam Indian Band, was charged in May 1984 with fishing with a drift net longer than permitted by the Band's food-fishing licence under the federal Fisheries Act. He defended on the ground that the licence restriction violated his Aboriginal right to fish, which was protected by section 35. The British Columbia Provincial Court convicted him; the British Columbia Court of Appeal allowed his appeal in part. The Supreme Court of Canada returned the case to trial with new directions on how section 35 was to be applied.

Chief Justice Brian Dickson and Justice Gerard La Forest co-wrote the unanimous opinion. They held that section 35 protected only existing rights (those that had not been extinguished before April 17, 1982), that extinguishment required clear and plain intention, and that the Musqueam right to fish for food, social, and ceremonial purposes had not been extinguished by Canadian fisheries regulation. The court adopted a purposive interpretation: section 35 was to be construed in a manner consistent with the honour of the Crown and the Crown's fiduciary duty to Indigenous peoples.

The Sparrow framework set out a three-step test for section 35 challenges. First, the Indigenous claimant must demonstrate the existence of an Aboriginal or treaty right and that government action infringes it. Second, the Crown bears the burden of justifying the infringement. Justification requires a valid legislative objective (such as conservation, public safety, or compelling public interest) and consideration of three further factors: the priority Indigenous interests must receive (after conservation), minimal impairment of the right, and consultation with the affected Indigenous group. R. v. Gladstone (1996), R. v. Marshall (1999), Delgamuukw v. British Columbia (1997), and Tsilhqot'in Nation v. British Columbia (2014) all built on Sparrow.