THE MIGHTY SPARROW
Protection of cultural traditions and rights
By Chris Johnson, Dr Simon Ruston and Marc Willers QC
Every year the law bloggers visit an old case from a different jurisdiction which may have lessons to give to us when dealing with cases in England and Wales. This year we are looking at the Canadian Supreme Court case of R v Sparrow  1 SCR 1075.
The appellant, a member of the Musqueam Indian Band, was charged under section 61(1) of the Fisheries Act 1970 of the offence of fishing with a drift net longer than that permitted by the terms of the Band's Indian food fishing licence. The appellant was caught with a net which was 45 fathoms (around 82m) in length. He had throughout admitted to the offence, but had defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction was inconsistent with section 35(1) of the Constitution Act 1982 and therefore invalid. Section 35(1) states:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.
The Musqueam Indian Reserve where Mr Sparrow lived is located on the north shore of the Fraser River close to the mouth of that river and within the limits of the City of Vancouver. There has been a Musqueam village there for hundreds of years.
Counsel for the Crown argued that the progressive restriction and detailed regulation of the fisheries had the effect of extinguishing any aboriginal right to fish.
The Supreme Court quashed the conviction of the appellant and sent the matter back for a fresh trial. They stated ( at p20):
The test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right.
There is nothing in the Fisheries Act or its detailed regulations that demonstrates a clear and plain intention to extinguish the Indian aboriginal right to fish. The fact that express provision permitting the Indians to fish for food may have applied to all Indians and that for an extended period permits were discretionary and issued on an individual rather than a communal basis in no way shows a clear intention to extinguish. These permits were simply a manner of controlling the fisheries, not defining underlying rights.
We would conclude then that the Crown has failed to discharge its burden of proving extinguishment. In our opinion, the Court of Appeal made no mistake in holding that the Indians have an existing aboriginal right to fish in the area where Mr. Sparrow was fishing at the time of the charge. …
The scope of the existing Musqueam right to fish must now be delineated. The anthropological evidence relied on to establish the existence of the right suggests that, for the Musqueam, the salmon fishery has always constituted an integral part of their distinctive culture. Its significant role involved not only consumption for subsistence purposes, but also consumption of salmon on ceremonial and social occasions. The Musqueam have always fished for reasons connected to their cultural and physical survival.
The Supreme Court also addressed the question of ‘justification’ for interference with an aboriginal right (at pp28-29):
The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s35(1).…
To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right?... If a prima facie interference is found, the analysis moves to the issue of justification. This is the test that addresses the question of what constitutes legitimate regulation of a constitutional aboriginal right. The justification analysis would proceed as follows. First, is 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 is valid. The objective of the department in setting out the particular regulations would also be scrutinized. An objective aimed at preserving s35(1) rights by conserving and managing a natural resource, for example, would be valid.
The Court continued (at pp30-31):
If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue.…That is, the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis‑à‑vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified…
The constitutional nature of the Musqueam food fishing rights means that any allocation of priorities after valid conservation measures have been implemented must give top priority to Indian food fishing.
and concluded that the Crown had not satisfied them that the interference was valid or justified.
Protection of the traditional way of life of Gypsies and Travellers in the UK
There are perhaps some useful parallels to be drawn from the case of Sparrow for those protecting the rights of Gypsies and Travellers in the United Kingdom. In Chapman v United Kingdom (2001) the European Court of Human Rights concluded that living in caravans was an integral part of the traditional Gypsy way of life and that the State owed a positive duty under Article 8 of the European Convention on Human Rights to facilitate their lifestyle.
Despite that positive obligation, recent Government policy changes to the planning definition of the term ‘gypsies and travellers’ has made it much more difficult for elderly and disabled Romani Gypsies and Irish Travellers to obtain planning permission for a site on which to live in their caravans in accordance with their traditional way of life. In our view the new planning definition can be challenged in the UK courts under both the Equality Act 2010 and the Human Rights Act 1998 (see previous blog by the authors at: http://travellerstimes.org.uk/Blogs--Features/Defining-Travellers-out-of-existence.aspx ) but reference to the reasoning in the Sparrow case might help persuade our domestic courts that the definition is unlawful.
Applying the test set out in the Sparrow case, we would argue that the new definition is unreasonable and imposes undue hardship on the most vulnerable members of the Travelling Communities. We would also argue that there is no valid legislative objective for the adoption of the new definition and that the Government decision to bring in the new definition breaches its legal and moral obligations to safeguard the traditional way of life of Gypsies and Travellers.
Chris Johnson (email@example.com) is the team leader of the Travellers Advice Team (TAT) at CLP. CLP’s website is
TAT runs a national advice line on 0121 685 8677, Monday to Friday 9am to 5pm.
Dr Simon Ruston, Ruston Planning Limited, Independent Planning Consultant specialising in Gypsy and Traveller work. Simon can be contacted at firstname.lastname@example.org or on 07967 308752/0117 325 0350
Marc Willers QC (email@example.com, @mwillers1) specialises in representing Gypsies and Travellers and is a member of the Romani Gypsy and Traveller Team at Garden Court Chambers (@gardencourtlaw, www.gardencourtchambers.co.uk).