Sparrow's Promise: Aboriginal Rights in the B.C. Court of Appeal

ANDREA BOWKER

ABSTRACT

In its groundbreaking decision of R. v. Sparrow, the Supreme Court of Canada explored for the first time the scope and strength of s. 35(1) of the Charter as "a promise to the Aboriginal peoples of Canada." In the course of examining s. 35(1)'s theoretical and political context, the Court set out a framework by which to consider both the nature and content of Aboriginal rights, and their constitutional limitations. In June of 1993, the British Columbia Court of Appeal rendered judgment on a series of cases, including Delgamuukw v. British Columbia, in which the strength of Sparrow's promise to invigorate and secure constitutional Aboriginal rights was tested. The author argues that by allowing controversy over commercial fishing rights, as well as stereotyped conceptions of Aboriginal culture, to govern its decision-making process, the majority of the Court failed to uphold that promise.

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Citation: (1995) 53(1) U.T. Fac. L. Rev. 1.
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