R. v. Adams (G.W.), (1996) 202 N.R. 89 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 03, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 202 N.R. 89 (SCC);1996 CanLII 169 (SCC);110 CCC (3d) 97;202 NR 89;[1996] 3 SCR 101;[1996] SCJ No 87 (QL);[1996] ACS no 87;138 DLR (4th) 657;[1996] 4 CNLR 1

R. v. Adams (G.W.) (1996), 202 N.R. 89 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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George Weldon Adams (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada (intervenor)

(23615)

Indexed As: R. v. Adams (G.W.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory, McLachlin,

Iacobucci and Major, JJ.

October 3, 1996.

Summary:

The accused Mohawk was charged with fishing in Lake St. Francis without a licence, as required by s. 4(1) of the Quebec Fishery Regulations. No licence would have been issued, but the Minister possessed a discre­tion to issue a special licence to permit him to fish for food. The accused had not sought the exercise of such discretion.

The Quebec Court of Sessions of the Peace, in a judgment reported [1985] 4 C.N.L.R. 123, convicted the accused. The accused's ancestors had aboriginal title to the lands, but title had been extinguished prior to 1982 and, therefore, could not support an incidental aboriginal right to fish. However, the Mohawks had an unextinguished, free-standing aboriginal right to fish in the lake. The licence requirement, which affected only the manner of exercising that aboriginal right, did not infringe the aboriginal right. The accused appealed.

The Quebec Superior Court, in a judgment report [1985] 4 C.N.L.R. 39, dismissed the appeal. The accused appealed.

The Quebec Court of Appeal, Rothman, J.A., dissenting, in a judgment reported 55 Q.A.C. 19, dismissed the appeal. The court held that absent a treaty right to fish or aboriginal title to the land, there could be no aboriginal right to fish in the area. The court agreed that if an independent aboriginal right to fish existed, the licence requirement infringed that right contrary to s. 35(1) of the Constitution Act, 1982. The accused appealed.

The Supreme Court of Canada allowed the appeal and set aside the conviction. First, proof of an aboriginal right to fish did not require that the aboriginal group first estab­lish aboriginal title to the area in question. The evidence established an aboriginal right to fish in Lake St. Francis. The s. 4(1) licence requirement infringed the aboriginal right to fish, was not justified and, accord­ingly, was invalid under s. 35(1).

Fish and Game - Topic 805

Indians, Inuit and Métis rights - Scope of rights - Limitations - Conservation - [See third Indians, Inuit and Métis - Topic 6017 ].

Fish and Game - Topic 806.1

Indians, Inuit and Métis rights - Limita­tions - Licensing - [See first and fourth Indians, Inuit and Métis - Topic 6017 ].

Fish and Game - Topic 963

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Effect of Constitution Act, 1982, s. 35(1) - At issue was whether the intervention of French sovereignty negated the potential existence of aboriginal rights within the former boundaries of New France under s. 35(1) of the Constitution Act, 1982 - The Supreme Court of Canada stated that "the purpose 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 outline in Sparrow and ... Gladstone. The fact that a particular practice, custom or tradition continued following arrival of Europeans, but in the absence of the for­mal gloss of legal recognition from the Europeans 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 were fortu­nate enough to have received the legal approval of British and French colonizers." - See paragraph 33.

Fish and Game - Topic 976

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Licensing - [See first and fourth Indians, Inuit and Métis - Topic 6017 ].

Indians, Inuit and Métis - Topic 506

Rights - Constitution Act, 1982, s. 35(1) - Interpretation - [See Fish and Game - Topic 963 ].

Indians, Inuit and Métis - Topic 6005

Aboriginal rights - Nature of - The Supreme Court of Canada reiterated that "aboriginal rights are identified through the following test: '... in order to be an aborig­inal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right'" - See paragraph 26.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Proof of - The Supreme Court of Canada, applying the test for aboriginal rights in R. v. Van der Peet, held that the accused Mohawk Indian established an aboriginal right to fish for food in Lake St. Francis in Quebec - Fishing in Lake St. Francis was, prior to European contact in 1603, "an element of a tradition, custom, practice or law integral to the distinctive culture" of the Mohawks - There existed "continuity 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" - See paragraphs 34 to 47.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Proof of - A Mohawk Indian claimed an aboriginal right to fish for food incidental to claimed aboriginal title to the land in question - The Supreme Court of Canada held that the lack of aboriginal title was not fatal to an aborig­inal right to fish - The court stated that "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 activity, 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." - See paragraphs 25 to 26.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Proof of - The Supreme Court of Canada stated that "the recognition that aboriginal title is simply one manifestation of the doctrine of abo­riginal rights should not, however, 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. For example, if an aboriginal people demonstrates that hunting on a specific tract of land was an integral part of their distinctive culture then, even if the right exists apart from title to that tract of land, the aboriginal right to hunt is nonetheless defined as, and limited to, the right to hunt on the specific tract of land." - See para­graph 30.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Proof of - [See Indians, Inuit and Métis - Topic 6005 ].

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - The accused Mohawk Indian had an aboriginal right to fish for food in Lake St. Francis - Section 4(1) of the Quebec Fishery Regu­lations made it an offence to fish without a licence - The Schedule under s. 4(1) did not permit a licence for aboriginal food fishing, but s. 5(9) gave the Minister a discretion to issue a special licence to aboriginals to fish for food - The Supreme Court of Canada held that s. 4(1) infringed the aboriginal right to fish contrary to s. 35(1) of the Constitution Act, 1982, and was invalid - The court stated that "the regulatory scheme subjects the exercise of the [accused's] aboriginal rights to a pure act of Ministerial discretion, and sets out no criteria regarding how that discretion is to be exercised. For this reason, I find that the scheme both imposes undue hardship on the [accused] and interferes with his preferred means of exercising his rights." - See paragraphs 50 to 52.

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - The Supreme Court of Canada stated that "in light of the Crown's unique fiduciary obli­gations towards aboriginal peoples, Parlia­ment may not simply adopt an unstruc­tured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with suffi­cient directives to fulfil their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test." - See paragraph 54.

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - The Supreme Court of Canada stated that "in order to demonstrate that an infringement of an aboriginal right is justified the Crown must demonstrate, first, that the infringement took place pursuant to a compelling and substantial objective and that, second, the infringement is consistent with the Crown's fiduciary obligation to aboriginal peoples. ... As with limitations of the rights enshrined in the Charter, limits on the aboriginal rights protected by s. 35(1) must be informed by the same purposes which underlie the decision to entrench those rights in the Constitution to be justifiable ... Those purposes are the recognition of the prior occupation of North America by aboriginal peoples, and the reconciliation of prior occupation by aboriginal peoples with the assertion of Crown sovereignty ... Measures which are aimed at conservation clearly accord with both these purposes, and can therefore serve to limit aboriginal rights." - See paragraphs 56 to 57.

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - The accused Mohawk Indian had an aboriginal right to fish for food in Lake St. Francis - Section 4(1) of the Quebec Fishery Regu­lations made it an offence to fish without a licence - The Schedule referred to in s. 4(1) did not permit a licence for aboriginal food fishing, but s. 5(9) gave the Minister a discretion to issue a special licence to aboriginals to fish for food - The Supreme Court of Canada held that s. 4(1) infringed the aboriginal right to fish contrary to s. 35(1) of the Constitution Act, 1982, and was not justified under the Sparrow test - The court stated that the regulatory scheme "does not meet the second leg of the test for justification, because it fails to provide the requisite priority to the aboriginal right to fish for food ... As we explained in Gladstone, the precise meaning of priority for aboriginal fishing rights is in part a function of the nature of the right claimed. 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." - See paragraph 59.

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - Extinguishment - The Crown alleged that an aboriginal right to fish in Lake St. Francis had been extin­guished in 1845 (when the land constitut­ing the fishing area was submerged by canal construction) or 1888 (when the aboriginals surrendered lands around the fishing area for $50,000) - The Supreme Court of Canada stated that the Crown failed to show the requisite "clear and plain intention" to extinguish aboriginal rights - The court stated that "while these events may be adequate to demonstrate a clear and plain intention in the Crown to extinguish any aboriginal title to the lands of the fishing area, neither is sufficient to demonstrate that the Crown had the clear and plain intention of extinguishing the [accused's] aboriginal right to fish for food in the fishing area." - See paragraphs 48 to 49.

Cases Noticed:

R. v. Côté (F.) (1996), 202 N.R. 161 (S.C.C.), refd to. [para. 1].

R. v. Van der Peet (D.M.) (1996), 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81 (S.C.C.), refd to. [para. 4].

R. v. N.T.C. Smokehouse Ltd. (1996), 200 N.R. 321; 80 B.C.A.C. 269; 130 W.A.C. 269 (S.C.C.), refd to. [para. 4].

R. v. Gladstone (W.) et al. (1996), 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161 (S.C.C.), refd to. [para. 4].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263, refd to. [para. 22].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416, refd to. [para. 53].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 53].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 53].

R. v. Pamajewon (H.) et al. (1996), 199 N.R. 321; 92 O.A.C. 241 (S.C.C.), refd to. [para. 62].

Nishga Tribal Council v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 65].

Baker Lake (Hamlet) v. Canada (Minister of Indian Affairs and Northern Development), [1980] 1 F.C. 518, refd to. [para. 65].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1) [para. 2]; sect. 52 [para. 9].

Fisheries Act Regulations (Can.), Quebec Fishery Regulations, C.R.C., c. 852, sect. 4(1), sect. 5(9) [para. 7].

Quebec Fishery Regulations - see Fish­eries Act Regulations (Can.).

Royal Proclamation of 1763, R.S.C. 1985, App. II, No. 1, generally [para. 15].

Counsel:

James O'Reilly, Peter W. Hutchins, Chantal Chatelain, Diane H. Soroka and Martha Montour, for the appellant;

René Morin and Pierre Lachance, for the respondent;

Jean-Marc Aubry, Q.C., and Richard Boivin, for the intervener.

Solicitors of Record:

O'Reilly & Associates, Montreal, Quebec, for the appellant;

Attorney General of Quebec, Sainte-Foy, Quebec, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervener.

This appeal was heard on December 5, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On October 3, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Lamer, C.J.C. (La Forest, Sopinka, Gon­thier, Cory, McLachlin, Iacobucci and Major, JJ., concurring) - see para­graphs 1 to 61;

L'Heureux-Dubé, J. - see paragraphs 62 to 68.