Aboriginal Fishing Rights: Laws, Courts and Politics

John Van West is a policy analyst with the Ontario Native Affairs
Secretariat.

This book explores the nature and scope of aboriginal fishing rights by
focusing on the Supreme Court of Canada decision in R. v. Sparrow.
Sharma argues that Sparrow remains one of the most significant decisions
rendered by the courts on aboriginal rights because it was the first
“decision to apply the provisions of section 35(1) in the aboriginal
rights section of the Constitution Act, 1982.” Pursuant to Sparrow,
aboriginal people have the right to fish for food and ceremonial
purposes without interference and as a first priority relative to
competing fisheries, subject only to the justifiable needs of
conservation and safety. The Sparrow decision remains mired in
controversy, according the Sharma, because (i) the aboriginal right to
fish, as constructed by Sparrow, does not necessarily accord with oral
and written history that document aboriginal people being also engaged
in fishing for commercial purposes, and (ii) because “the spirit of
the [Supreme Court of Canada] ruling has not been carried out.” This
contradiction in Sparrow—the perception of it as a “major win” and
the controversial aftermath—forms the basis of this book.

Sharma examines Sparrow with the view to assessing whether or not the
law has been effective in improving “the life chances” of aboriginal
people. He argues that in Sparrow, the Supreme Court has not been an
agent of positive social change, because in its interpretation of
section 35(1) it “has had the effect of actually limiting the scope of
rights originally envisioned by aboriginal organizations [i.e., the
right to fish for commercial purposes].” The decision enables
governments to arbitrarily justify their interference in the exercise by
aboriginal people of their fishing rights, for example, to conserve the
stocks overharvested by nonaboriginal commercial fishers. As Sharma
demonstrates, first-priority considerations have no basis in fact.

Aboriginal Fishing Rights is a primer on the Sparrow decision. The text
is straightforward but annoyingly repetitive in parts. Further, Sharma
relies heavily on the British Columbia context to the exclusion of other
jurisdictions. Surely the Sparrow decision affected all of the other
provinces and territories in Canada. Sharma has nevertheless produced a
focused polemic on how and why Sparrow has failed Native people.