Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow

Abstract

The authors articulate the basic elements of two competing theories of aboriginal right. The first, a contingent rights approach, requires state action for the existence of aboriginal rights. This approach dominated early judicial pronouncements on the nature of aboriginal rights. The second, an inherent rights approach, views aboriginal rights as inherent in the nature of aboriginality. This approach came to be embraced by the judiciary in cases addressing the nature of aboriginal legal interests prior to the passage of the Constitution Act, 1982. The authors then assess the Supreme Court of Canada's decision in R. v. Sparrow in light of these two competing theories. In Sparrow, the Court addressed the meaning of s. 35(1) of the Constitution Act, 1982 and, despite other laudable aspects of the judgment, relied on a contingent theory of aboriginal right and an unquestioned acceptance of Canadian sovereignty. The authors offer two alternative approaches to s. 35(1) based on the overarching value of equality of peoples. As a result, the Court severely curtailed the possibility that s. 35(1) includes an aboriginal right to sovereignty and rendered fragile s. 35(1)'s embrace of a constitutional right to self-government.