The Pleasure of the Crown. Dara Culhane

Supreme Court of Canada agreed with the Musqueam, and in their decision handed down on May 31, 1990 called for “a generous, liberal and purposive interpretation of s. 35(1).”³⁶ They found first that Aboriginal rights that exist in common law are recognized and affirmed by s. 35(1) of the Canadian Constitution that is paramount over all other laws. The Constitution, in other words, is the supreme law of the land.³⁷ As a result, laws that interfere with the exercise of constitutionally-protected Aboriginal rights must conform to constitutional standards of justification. For example, where a resource, like fish, is scarce, Aboriginal rights should take precedence over commercial and sports interests and be limited only by the requirements of conservation of the resource.

      The Sparrow decision reiterated that the Crown must show a clear, plain and explicit intention to extinguish Aboriginal title, and that laws of general application applied to Indians should not be construed as having effected “implicit extinguishment.” It is a common legal strategy in Aboriginal title litigation for lawyers for all parties to present judges with a number of possible interpretations: a kind of prioritized “wish list” of rulings their clients could live with. These various alternative arguments need not be logically consistent, and often begin from radically different premises. The Province of British Columbia’s legal argument in support of “implicit extinguishment” constitutes such an alternative, or “fall back” position. Should a judge find that Aboriginal title and rights did exist at the time the British arrived, and therefore that some form of extinguishment of Aboriginal title was required, the Province of B.C. puts forward their argument that colonial governments in British Columbia have consistently demonstrated their implicit