On a spring day in 1984, a Coast Salish fisherman was arrested in Canoe Passage, on the south arm of the Fraser River, while fishing with a driftnet that was almost twice as long as the legal limit imposed earlier that year by the federal government.
Ronald (Bud) Sparrow was two months shy of his 40th birthday and he had been on boats since he was 13. He was accused of violating the terms of his band’s food fishing licence, but he argued the licence was invalid because it breached his aboriginal right to fish.
Six years later, in a decision that still stands as a pivotal ruling in the recognition of Indigenous rights in Canada, the Supreme Court agreed, writing that Section 35 (1) of the Constitution Act of 1982 “affords aboriginal peoples constitutional protection against provincial legislative power.” The section should be given “a generous, liberal interpretation,” said the decision, written by Chief Justice Brian Dickson and Mr. Justice Gerard La Forest.
“It is clear, then, that Section 35 (1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights.”
Mr. Sparrow died on Sept. 14 at his home in Ladner, B.C., after battling cancer for nearly two years. He was 76.
“I always thought that he was right,” said Marvin Storrow, who was the lawyer for the Musqueam Band and represented Mr. Sparrow in the case.
“It really was an important decision. … It opened the door to First Nations across Canada to exercise their constitutional rights.”
Mr. Sparrow had been caught fishing some 16 kilometres from his home territory with a net that was 45 fathoms in length. Just months before, new regulations required nets be limited to 25 fathoms in length. Mr. Sparrow never contested the fact that his equipment was too long.
Mr. Sparrow’s case was first heard in the British Columbia Provincial Court, which found him guilty of the charges against him. An appeal to B.C. County Court was dismissed. But the high court concluded Mr. Sparrow’s fishing rights had never been extinguished. First Nations have “an existing aboriginal right to fish” and that their existing aboriginal and treaty rights are “recognized and affirmed,” the court found.
In the ruling, the Supreme Court of Canada also established a test for determining whether governmental infringement on aboriginal rights was justifiable. It’s known as the “Sparrow Test.”
Mary Ellen Turpel-Lafond, a former judge, professor of law at the University of British Columbia and director of the Residential School Centre for History and Dialogue, said the Sparrow decision laid the groundwork for the Supreme Court rulings that came later and would build on Canada’s understanding of Indigenous rights.
But she said the case also forced the courts and Canadians to confront deeply held prejudices. She said the case helped expose “all of the misconceptions and even racist attitudes: [That] Indians would not use the resource properly; they would deplete the resource; they couldn’t fish appropriately; they had to be regulated by government and that their rights have been removed."
“Bud Sparrow was not only a champion for the Musqueam people, but for all British Columbia First Nations and all Canadian First Nations,” Ms. Turpel-Lafond said.
His victory “led to one of the first cases on the interpretation of constitutionally protected rights of Indigenous people to fish.”
Despite all the high recognition and praise from the outside, at home, Mr. Sparrow was just “a dad and papa.”
“He just had the biggest heart,” said Desiree Lynn Sparrow, one of Mr. Sparrow’s six children.
“He never missed an opportunity to tell us how much he loved us.”
Ms. Sparrow said she was only 10 when her father was arrested and remembers seeing him on television a lot, though she didn’t understand why. She said in her later teens she started to grasp the importance of her father’s legal battle.
“We definitely came to appreciate what Dad had done for Indigenous people.”
Neither of Desiree and her older sister Shani Lynne Sparrow recalls any celebration at home when their dad won the case. Shani said that was their father’s style, because “he was just too humble.” Shani said he treated it more like business and discussed it in business settings.
“At home, he just focused on being Dad.”
His younger girls, Kayla and Kelsey, born after the ruling, learned of the case at school.
“I think that was my first realization how important dad is to the community and to everyone else,” Kayla said.
Mr. Sparrow’s only son, Jarred Victor Sparrow, continues in the family fishing tradition, having joined his father on the water every summer starting in his teens.
It’s been tough the past two years fishing without him, Jarred said, noting his dad captained the same vessel for 50 years.
In all the years he spent learning to fish from his father, Jarred said, his father’s most remarkable trait was his patience.
“He would be waiting, waiting and watching the tide and watching the pine needles in the water and seeing how fast they’re moving and watching the fish in the back,” Jarred said.
Mr. Sparrow, who was born on July 16, 1944, was given the nickname Bud by his sister, Sharon, when they were young children, Jarred explained. Sharon, who was just learning to speak, could not pronounce “brother,” so she called him “Bud,” and it stuck.
Ms. Turpel-Lafond said the impact of the Sparrow decision remains, but Indigenous fishermen have yet to fully have their rights recognized. The work Mr. Sparrow started is not finished.
“It’s a continued journey,” she said.
“But with the sad passing of Bud Sparrow, it’s a time to really give thanks to someone who was doing something that was really important for his family and his community.”