The Big Bang of Aboriginal Rights Law

Host Hugo Martin frames R. v. Sparrow as “the big bang of law” , the Supreme Court’s first opportunity to interpret section 35 of the Constitution Act, 1982. Ronald Sparrow, a member of the Musqueam Band, was charged under the Fisheries Act for fishing in Canoe Passage on the Fraser River with a drift net longer than his Band’s food-fishing licence allowed (45 fathoms, where the licence permitted 25). He admitted the facts but argued he was exercising an existing Aboriginal right to fish that Parliament could not simply regulate out of existence.

From “Goodwill of the Sovereign” to Inherent Rights

Professor Metallic sets the historical stage. Some of the earliest cases, such as Connolly v. Woolrich (1867), recognized Aboriginal rights, but the 1888 Privy Council decision in St. Catherine’s Milling cast a long shadow: it defined Aboriginal rights as revocable. As Metallic explains, “It used this phrase that these rights are dependent on the goodwill of the Sovereign. So it didn’t see these rights as inherent, but only as given by the Crown.” That vision governed Canadian law for roughly a century, until Calder (1973), where six of seven judges accepted that Aboriginal title existed at common law, a shift that pushed the federal government to resume negotiating land claims and set the stage for constitutional protection.

The Doctrine of Discovery

Metallic connects the theory of inherent Aboriginal rights adopted in Calder and affirmed in Guerin (1984) to nineteenth-century American case law, the “Marshall Trilogy” of the 1830s. That jurisprudence held that European “discovery” did not extinguish Indigenous peoples’ rights, but did give the Crown ownership, jurisdiction and legislative control, leaving Indigenous peoples with occupancy alone. This is the doctrine of discovery, never named in St. Catherine’s Milling, Metallic notes, because it was “so deeply embedded in their thinking that they didn’t know how to describe it.” Guerin also established the Crown’s fiduciary duty toward Indigenous peoples, a concept the Court would carry directly into Sparrow.

The Fight Over One Word: “Existing”

Professor Drake walks through the drama behind section 35’s text (drawing, she notes, on the casebook of John Borrows and Leonard Rotman). Indigenous peoples were initially left out of patriation talks; public pressure produced a draft protection for Aboriginal rights, which was then dropped entirely in November 1981 under provincial pressure. When the provision was restored, the compromise was the word “existing.” British Columbia and Alberta believed the word neutralized the section, on the theory, traceable to Justice Judson’s approach in Calder, that mere regulation could extinguish rights, and therefore that all Aboriginal rights had already been extinguished by 1982. Promised future constitutional conferences to “flesh out” section 35 (the era of Dancing Around the Table, Meech Lake, and the failed Charlottetown Accord) never delivered, so the task of interpretation fell to the courts.

Establishing the Right: Looking to Indigenous Law

Drake identifies the first reason Sparrow is the high watermark. To establish the right, “all we have to do is look to the laws of Indigenous people themselves. That’s what the Court does in Sparrow.” The Court relied on anthropological evidence (summarizing the work of Dr. Wayne Suttles) describing the salmon’s central place in Salish belief. Reading that passage, salmon as “a race of beings” bonded to humans through respect and ritual, Drake offers an Anishinaabe reading: “when I hear language like bond, to me from an Anishinaabe perspective, this is a treaty. And having a treaty with animal nations is very common within Anishinaabe life worlds.” Animals, in this view, “are our relations who we are in a treaty relationship with. And when we hold up our end of the treaty, they hold up theirs.” Crucially, this description of Indigenous law was enough to establish the right, a low threshold that, Drake notes, did not survive the next decision.

Extinguishment: The “Clear and Plain Intention” Test

Metallic and Drake explain the extinguishment step. Sparrow rejected Justice Judson’s regulation-equals-extinguishment approach and adopted Justice Hall’s: the Crown must show a “clear and plain intention” to extinguish. As Drake puts it, “mere regulation is not sufficient to extinguish the right. So just because a right is controlled in great detail by regulations, it doesn’t mean that the right is extinguished.” Nothing in the Fisheries Act met that bar, so the Musqueam right survived. The professors note extinguishment remains possible, later cases like Gladstone suggest the intention need not be explicit, and Horseman is a rare example where a right was found partly extinguished, but Metallic warns that extinguishment itself echoes the old idea of revocable rights: “the elimination, the revocation of rights at the will of the Sovereign,” something we would never accept for Charter rights.

The Justification Test and the “Never in Doubt” Puzzle

Because section 35 sits in Part II of the Constitution Act, 1982, outside the Charter and its section 1, the Court could not use the Oakes test directly. Instead it read a justification analysis into the words “recognized and affirmed,” anchored in the Crown’s fiduciary duty and a requirement to give priority to the Aboriginal right after conservation. Metallic highlights the decision’s internal tension: Sparrow celebrates section 35 as a mechanism for the “just resolution” of Indigenous claims that “renounces the old rules of the game,” yet opens by asserting that Crown sovereignty “was never in doubt”, a “head scratcher” that, she argues, seeded a justification test that “just gets broader and broader as the case law goes along.”

The Decline: Van der Peet and After

Both professors identify R. v. Van der Peet (1996) as the beginning of the retreat. Dorothy Van der Peet, of the Stó:lō Nation, was charged with selling fish; even with uncontested evidence that her people traded fish before European contact, she lost, because the Court held the trade was merely “incidental” rather than “integral to the distinctive culture.” The new test, requiring a practice, custom or tradition integral to the culture prior to contact, set a far higher bar. Metallic argues the deeper error was treating collective Indigenous rights as fundamentally different from universal Charter rights, imposing a burden of proof that no Charter claimant faces, where a prima facie case would ordinarily suffice.

Fixing the Cracks: UNDRIP and Montour

Looking forward, both scholars turn to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its 2021 federal implementing legislation. Metallic argues the emphasis on justification left governments with an “infringe first” posture, and, given how hard Van der Peet makes it to establish a right in the first place, “we barely ever get to cases where the Government actually can justifiably infringe because the test has been made so hard that groups mostly fail on the first part.” Drake points to R. c. Montour (2023, Quebec Superior Court, currently under appeal), which set aside Van der Peet and, drawing on UNDRIP, asked simply whether the asserted collective right is protected by the Indigenous people’s own legal system, “essentially what was happening in Sparrow.” Asked what she would change, Metallic is direct: bring in international law to define a just relationship, narrow justification, and “get rid of extinguishment.”