Canoe V. Sparrow Case

Back in 1984 the appellant Ronald Edward Sparrow was charged under the Fisheries Act with fishing using a drift net longer than what was permitted by his Band’s Indian food fishing license, the appellant was a member of the Musqueam Indian Band. (1083) The fishing which led to the appellant’s charge took place on May 25th, 1984 in an area known as Canoe Passage which is part of the area subject to the Band’s License. The appellant’s license which had been issued for a one-year period began on March 31st, 1984. (1083). It set out many different restrictions, one of which included that drift nets had a limit of 25 fathoms in length. The appellant was caught with a net which was 45 fathoms in length. He defended the charge on a basis that he was

(1083). This leads to the appellant, Mr. Sparrow, basing his appeal on the fact that his existing aboriginal rights were being violated by the Band’s license. The parties are involved in this legal dispute to determine whether the appellant’s chargers may be dropped and the decision by the crown to be reversed. The appellant and the crown are arguing that from a legal stand point the appellant must follow the fishing regulations set by the appellant’s Band license. The appellant was convicted, the trial judge stated that an aboriginal right could not be claimed unless it was supported by a special treaty that section 35 of the Constitution Act,1982 accordingly had no application. (1076). Therefore, the appellant failed to appeal his case meaning the crown had won. The court justified is decision in the case by stating that, section 35 applies to rights in existence when the Constitution Act,1982 came into effect; it does not revive extinguished rights. An existing aboriginal right cannot be read to incorporate the specific way it was regulated before 1982. (1076). The term “existing aboriginal rights” must be interpreted loosely to allow them to evolve over time. The court also stated that nothing in the Fisheries Act demonstrates a clear and plain intention to extinguish the Indian aboriginal right to fish. (1076). Also stating that the fishing permits were simply a way to control the fisheries.