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Indigenous Sovereignty: R. v. Sparrow (1990)

"It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown" (1103).

"Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867" (1109).

R. v. Sparrow, [1990] 1 S.C.R. 1075

"[T]he presumption that Crown sovereignty and underlying title arise 'from the outset' of colonization must derive from the premise that prior to colonization Canada is considered in law to be a terra nullius [i.e. uninhabited land]" (155).

Asch, Michael. "First Nations and the Derivation of Canada's Underlying Title: Comparing Perspectives on Legal Ideology." Aboriginal Rights and Self-Government: The Canadian and Mexican Experience in North American Perspective, edited by Curtis Cook and Juan D. Lindau, McGill-Queen's UP, 2000, pp. 148-167.

"[T]he Court initially embraces an inherent theory of aboriginal right but attempts to avoid one of its implications, namely, a constitutional right to aboriginal sovereignty, by abruptly switching to a contingent theory of aboriginal right and unquestioningly accepting Canadian sovereignty over its indigenous population" (500-501).

Asch, Michael and Patrick Macklem. "Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow." Alberta Law Review, vol. XXIX, no. 2, 1991, pp. 498-517.

"[T]he 1990 Supreme Court judgment in the Sparrow case . . . established a test for the unilateral ending of Aboriginal rights by lawful means. In order to establish that such lawful elimination has occurred, it must be demonstrated that the Crown exercised a clear and plain intention to do so" (6).

Federal Policy for the Settlement of Native Claims. Indian and Northern Affairs Canada, 1993.

"[O]ne of the boldest decisions in the Supreme Court of Canada's . . . history. In it, the Court held that the Aboriginal right of the Musqueam people to their food fishery was quite capable of surviving a century of extensive federal regulation, so as to qualify as an 'existing' Aboriginal right that is protected by s. 35(1)" (346).

"[I]n law the claim that there was 'never any doubt' is often a sign of distant rumblings. . . . [T]here was in fact considerable doubt. . . . Law achieves its clarity partly by constructing an orthodoxy determined more by political theory than historical accuracy, an orthodoxy that masks competing points of view. . . . As the colonial machine grinds forward through time and space, the law tends to repress alternatives rejected by power, sometimes even to deny that these alternatives ever existed. If this 'legitimating' enterprise is so effective that it makes what was once a coherent and competing view unthinkable, then it has succeeded most admirably" (346-347).

Foster, Hamar. "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases." Manitoba Law Journal, vol. 343, 1992, pp. 343-389.

"It is an onerous responsibility to be the individual who chooses to put one's culture on trial in an institution that belongs to another culture. In a related way, it is interesting to note that the testimony of a non-Aboriginal anthropologist is the required standard of proof in order to have recognized in court facts which are apparent to any individual living in the Musqueam community. The standard to which courts hold Aboriginal people accountable to regarding cultural facts is unacceptable" (58).

"The Sparrow case is the Supreme Court of Canada's first pronouncement on the meaning of section 35(1)" (60).

"What is absent from the court's reasons is any discussion of the commercial fishery. The court fails to look at this question as it was not part of the representations made before the lower courts. The right to establish commercial practices in the fisheries is essential to the livelihood of many Aboriginal nations. The failure to resolve this issue in the Sparrow case may be seen as one of the weaknesses of the court process, inherent within that process. Issues are drafted as narrowly as possible. The outstanding issues in Aboriginal claims are both broad and multifaceted. To rely on the courts to resolve these issues will continue to be a long and tedious process as every little detail must be litigated in a series of cases" (75).

Monture-Angus, Patricia A. The Familiar Face of Colonial Oppression: An Examination of Canadian Law and Judicial Decision Making. Royal Commission on Aboriginal Peoples, 1994.