I think throwing out the word “Sparrow” without including background on the full scope of the Sparrow decision only tells half the story. The full implications of the Sparrow decision throws even focus on whether of not the DFO can pass the Red Faced Test:
For instance:
QUOTE
An infringement consistent with the fiduciary relationship may require that priority be given to Aboriginal rights, that the right be infringed as little as possible, that fair compensation has been given for economic rights, or that there has been consultation with respect to the measures being implemented. If these questions are answered affirmatively, then the Crown can justify their limitation on the Aboriginal right. Exemplifying the test with the facts before them, the Court in Sparrow determined that environmental conservation was a valid legislative objective. In order for the rights to be prioritized, the Musqueam’s right to fish for food, social and ceremonial purposes should take precedent over all other uses of the fish except conservation. The Court ordered the case be re-tried based on the above test.
UNQUOTE
I think even DFO at this point would have difficulty making the argument that IFS is not an Extreme Conservation Concern and based on that, should appeal to the Court to make the Musqueams cease and desist river netting operations until the peak migration of remaining IFS Is finished for the season
