George Weldon Adams Appellant
Her Majesty The Queen Respondent
The Attorney General of Canada Intervener
Indexed as: R. v. Adams
File No.: 23615.
1995: December 5; 1996: October 3.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for quebec
Constitutional law ‑‑ Aboriginal rights ‑‑ Native fishing on traditional fishing area without a licence ‑‑ Licence only available on application for exercise of ministerial discretion ‑‑ Title alleged to be extinguished either by flooding or by treaty ‑‑ Whether aboriginal rights are inherently based in claims to land ‑‑ Whether claims to land are simply one manifestation of a broader‑based concept of aboriginal rights ‑‑ Constitution Act, 1982 , ss. 35(1) , 52 ‑‑ Quebec Fishery Regulations, C.R.C., c. 852, ss. 4(1), 5(9) ‑‑ Royal Proclamation of 1763, R.S.C., 1985, App. II, No. 1.
Appellant, a Mohawk, was charged with fishing without a licence on Lake St. Francis, Quebec, contrary to s. 4(1) of the Quebec Fishery Regulations. A licence was unavailable under those regulations. A special licence issued under ministerial permit authorizing native persons to fish for food may have been available under s. 5(9) but appellant did not apply for such permission. The appellant was convicted at trial and this conviction was upheld on appeal to the Quebec Superior Court and on further appeal to the Quebec Court of Appeal. The constitutional question before this Court queried whether s. 4(1) of the Quebec Fishery Regulations was of no force or effect with respect to the appellant in virtue of s. 52 of the Constitution Act, 1982 by reason of his aboriginal rights under s. 35 of the Constitution Act, 1982 . The fundamental issue was whether aboriginal rights are inherently based in claims to land, or whether claims to land are simply one manifestation of a broader-based conception of aboriginal rights.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: Claims to land are simply one manifestation of a broader-based conception of aboriginal rights. While claims to aboriginal title fall within the conceptual framework of aboriginal rights, aboriginal rights do not exist solely where a claim to aboriginal title has been made out. Where an aboriginal group has shown that a particular practice, custom or tradition taking place on the land was integral to the distinctive culture of that group then, even if they have not shown that their occupation and use of the land was sufficient to support a claim of title to the land, they will have demonstrated that they have an aboriginal right to engage in that practice, custom or tradition. The Van der Peet test protects activities which were integral to the distinctive culture of the aboriginal group claiming the right; it does not require that that group satisfy the further hurdle of demonstrating that their connection with the piece of land on which the activity was taking place was of a central significance to their distinctive culture sufficient to make out a claim to aboriginal title to the land. R. v. Van der Peet establishes that s. 35 recognizes and affirms the rights of those peoples who occupied North America prior to the arrival of the Europeans; that recognition and affirmation is not limited to those circumstances where an aboriginal group’s relationship with the land is of a kind sufficient to establish title to the land.
Aboriginal rights cannot be inexorably linked to aboriginal title given that some aboriginal peoples were nomadic. Nomadic peoples survived through reliance on the land prior to contact with Europeans and many of the practices, customs and traditions of nomadic peoples that took place on the land were integral to their distinctive cultures. The aboriginal rights recognized and affirmed by s. 35(1) should not be understood or defined in a manner which excludes some of those that the provision was intended to protect. Moreover, some aboriginal peoples varied the location of their settlements both before and after contact, but this in no way subtracts from the fact that, wherever they were settled, prior to contact some aboriginal peoples engaged in practices, customs or traditions on the land which were integral to their distinctive culture.
The recognition that aboriginal title is simply one manifestation of the doctrine of aboriginal rights should not create the impression that the fact that some aboriginal rights are linked to land use or occupation is unimportant. Even where an aboriginal right exists on a tract of land to which the aboriginal people in question do not have title, that right may well be site‑specific, with the result that it can be exercised only upon that specific tract of land. A site‑specific hunting or fishing right does not, simply because it is independent of aboriginal title to the land on which it took place, become an abstract fishing or hunting right exercisable anywhere; it continues to be a right to hunt or fish on the tract of land in question.
For the reasons developed in R. v. Côté, notwithstanding the fact that the French Crown may never have formally recognized any legal right of the Mohawks to fish in Lake St. Francis, the status of aboriginal rights under French colonial law does not defeat a claim under s. 35(1) . The purpose of the entrenchment of s. 35(1) was to extend constitutional protection to the practices, customs and traditions central to the distinctive culture of aboriginal societies prior to contact with Europeans. If the exercise of such practices, customs and traditions effectively continued following contact in the absence of specific extinguishment, such practices, customs and traditions are entitled to constitutional recognition subject to the infringement and justification test outlined in R. v. Sparrow and R. v. Gladstone. The fact that a particular practice, custom or tradition continued following the arrival of Europeans, but in the absence of the formal gloss of legal recognition from the European colonizers, should not undermine the protection accorded to aboriginal peoples. Section 35(1) would fail to achieve its noble purpose of preserving the integral and defining features of distinctive aboriginal societies if it only protected those defining features which received the legal approval of British and French colonizers.
The appellant demonstrated that fishing in Lake St. Francis was an element of a practice, custom or tradition integral to his people’s distinctive culture and so met the Van der Peet test. First, the claim, which was supported by the evidence, was best characterized as one for the right to fish for food in Lake St. Francis. The appellant’s essential challenge was to the prohibition of food fishing. Second, fishing for food in Lake St. Francis was a central, significant or defining feature of the Mohawk’s distinctive culture. This Court normally relies on the trial judge’s findings in making this determination. Here, however, the trial judge, while coming to a clear legal determination, did not articulate a clear finding of fact. The evidence, therefore, was considered to arrive at the finding of fact that the Mohawks had exercised a right to fish for food in Lake St. Francis and the St. Lawrence River from before contact, which was established to be in 1603. The continuity required under the Van der Peet test between aboriginal practices, customs and traditions that existed prior to contact and a particular practice, custom or tradition that is integral to aboriginal communities today was demonstrated.
A “clear and plain intention” must be proved by the Crown to establish that an aboriginal right has been extinguished. Although flooding the fishing area in 1845 and the signing of a surrender agreement concerning land in 1888 may have demonstrated a clear and plain intention in the Crown to extinguish any aboriginal title to the lands of the fishing area, neither event demonstrated a clear and plain intention to extinguish the appellant’s aboriginal right to fish for food in the fishing area.
The nature of the impact on the appellant’s rights from the operation of the provision must be determined, taking into account the broader regulatory scheme of which the provision is a part. Here, the appellant’s exercise of his aboriginal right to fish for food was only exercisable at the discretion of the Minister. This scheme did not meet the test for infringement laid down in Sparrow. The scheme imposed undue hardship on the appellant and interfered with his preferred means of exercising his rights. The appellant’s aboriginal rights were also infringed in that the regulations did not provide sufficient direction to those exercising the discretion to fulfil the Crown’s fiduciary duties to the aboriginal peoples.
This infringement was not justified. It did not (1) take place pursuant to a compelling and substantial objective and (2) was not consistent with the Crown’s fiduciary obligation to aboriginal peoples. To be justifiable, limits on the aboriginal rights protected by s. 35(1) must be informed by the same purposes underlying their constitutional entrenchment: (1) recognition of the prior occupation of North America by aboriginal peoples, and (2) reconciliation of this prior occupation with the assertion of Crown sovereignty. Measures aimed at conservation can limit aboriginal rights because they clearly accord with both purposes. Those aimed at enhancing sports fishing per se, however, accord with neither purpose and therefore cannot be a compelling and substantial objective for the purposes of s. 35(1) . Furthermore, the scheme failed to provide the requisite priority to the aboriginal right to fish for food and so did not meet the second part of the test for justification. The right to fish for food, as opposed to the right to fish commercially, is a right which should be given first priority after conservation concerns are met.
Per L’Heureux‑Dubé J.: The reasons of Lamer C.J. were generally agreed with subject to comments about the relationship between aboriginal rights and aboriginal title, and about the proper approach to the definition of the nature and extent of aboriginal rights.
Aboriginal rights can exist independently of aboriginal title. The doctrine of aboriginal rights is not solely concerned with land but covers all aboriginal interests arising out of the native peoples’ historic occupation and use of ancestral lands. Aboriginal rights can be incidental to aboriginal title but need not be: they are severable from and can exist independently of aboriginal title. The strict conditions for recognition of aboriginal title at common law are not applicable when a claimant does not seek the broadest right to occupy and use a tract of land but rather only the limited right to fish upon it. In such cases, the only requirements are those set out in Van der Peet regarding the recognition of an aboriginal right under s. 35(1) of the Constitution Act, 1982 .
The nature and extent of aboriginal rights constitutionally protected under s. 35(1) should be determined by reference to the historic occupation and use of ancestral lands by the natives which is the rationale of the doctrine of aboriginal rights. Constitutionally recognized aboriginal practices, customs and traditions must be sufficiently significant and fundamental to the culture and social organization of a particular group of aboriginal people and must have formed an integral part of the distinctive aboriginal culture for a substantial continuous period of time. A “frozen rights” approach focusing on aboriginal practices should not be adopted.
The Mohawks’ aboriginal right to fish for food in Lake St. Francis is protected under s. 35(1) because they have fished for food on the tract of land in question in a manner sufficiently significant and fundamental to their culture and social organization for a substantial and continuous period of time. This right, which was not extinguished by a “clear and plain intention” of the Government, was infringed by the Quebec Fishery Regulations. The restriction was not justified under the Sparrow test.
By Lamer C.J.
Applied: R. v. Côté,  3 S.C.R. 139; R. v. Van der Peet,  2 S.C.R. 507; R. v. Sparrow,  1 S.C.R. 1075; referred to: R. v. N.T.C. Smokehouse Ltd.,  2 S.C.R. 672; R. v. Gladstone,  2 S.C.R. 723; Calder v. Attorney-General of British Columbia,  S.C.R. 313; Slaight Communications Inc. v. Davidson,  1 S.C.R. 1038; R. v. Swain,  1 S.C.R. 933; Schachter v. Canada,  2 S.C.R. 679.
By L’Heureux‑Dubé J.
Applied: R. v. Van der Peet,  2 S.C.R. 507; R. v. Sparrow,  1 S.C.R. 1075; referred to: R. v. N.T.C. Smokehouse Ltd.,  2 S.C.R. 672; R. v. Gladstone,  2 S.C.R. 723; R. v. Pamajewon,  2 S.C.R. 821; Calder v. Attorney‑General of British Columbia,  S.C.R. 313; Baker Lake v. Minister of Indian Affairs and Northern Development,  1 F.C. 518.
Statutes and Regulations Cited
Quebec Fishery Regulations, C.R.C., c. 852, ss. 4(1) [rep. & sub. SOR/82-320, s. 3], 5(9) [ad. SOR/81‑660, s. 2(2)].
Royal Proclamation of 1763, R.S.C., 1985, App. II, No. 1.
APPEAL from a judgment of the Quebec Court of Appeal,  R.J.Q. 1011,  3 C.N.L.R. 98, 55 Q.A.C. 19, dismissing an appeal from a judgment of Paul J.,  4 C.N.L.R. 39, dismissing an appeal from conviction by Barrette Ct. S.P.J.,  4 C.N.L.R. 123. Appeal allowed.
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