[1996] 3 S.C.R. R. v. Adams 101
George Weldon Adams Appellant
v.
Her Majesty The Queen Respondent
and
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
SNIPPETS:
Constitutional law -- Aboriginal rights -- Native fishing on traditional fishing area without
4, 5--Royal Proclamation of 1763, R.S.C., 1985, App.
Appellant, a Mohawk, was charged with fishing without a licence on Lake St. Francis, Quebec,
4of the Quebec Fishery Regulations.
The appellant was convicted at trial and this conviction was upheld on appeal to the Quebec
52 of the Constitution Act, 1982 by reason of his aboriginal rights under s.
The Van der Peet test protects activities which were integral to the distinctive culture of
Nomadic peoples survived through reliance on the land prior to contact with Europeans and
Moreover, some aboriginal peoples varied the location of their settlements both before and
The recognition that aboriginal title is simply one manifestation of the doctrine of
A site-specific hunting or fishing right does not, simply because it is independent of
Here, however, the trial judge, while coming to a clear legal determination, did not
The evidence, therefore, was considered to arrive at the finding of fact that the Mohawks had
Although flooding the fishing area in 1845 and the signing of a surrender agreement
The nature of the impact on the appellant's rights from the operation of the provision must
This scheme did not meet the test for infringement laid down in Sparrow.
for the respondent.
these two related appeals involve the claim of an aboriginal right to fish within the
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