R. v. Adams

R. v. Adams
Collection
Supreme Court Judgments
Date
1996-10-03
Report
[1996] 3 SCR 101
Case number
23615
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 23615
Decision Content
R. v. Adams, [1996] 3 S.C.R. 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 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.
Cases Cited
By Lamer C.J.
Applied: R. v. Côté, [1996] 3 S.C.R. 139; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Sparrow, [1990] 1 S.C.R. 1075; referred to: R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R. v. Gladstone, [1996] 2 S.C.R. 723; Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Swain, [1991] 1 S.C.R. 933; Schachter v. Canada, [1992] 2 S.C.R. 679.
By L’Heureux‑Dubé J.
Applied: R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Sparrow, [1990] 1 S.C.R. 1075; referred to: R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Pamajewon, [1996] 2 S.C.R. 821; Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313; Baker Lake v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C. 518.
Statutes and Regulations Cited
Constitution Act, 1982, ss. 35(1) , 52 .
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, [1993] R.J.Q. 1011, [1993] 3 C.N.L.R. 98, 55 Q.A.C. 19, dismissing an appeal from a judgment of Paul J., [1985] 4 C.N.L.R. 39, dismissing an appeal from conviction by Barrette Ct. S.P.J., [1985] 4 C.N.L.R. 123. Appeal allowed.
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
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
The Chief Justice --
I. Introduction
1 This appeal and the appeal of R. v. Côté, [1996] 3 S.C.R. 139, have been released simultaneously and should be read together in light of the closely related issues raised by both cases.
2 The appellant, a Mohawk, was charged with the regulatory offence of fishing without a licence in Lake St. Francis in the St. Régis region of Quebec. He challenges his conviction on the basis that he was exercising an aboriginal right to fish as recognized and affirmed by s. 35(1) of the Constitution Act, 1982 .
3 In resolving this appeal and the appeal in Côté, this Court must answer the question of whether aboriginal rights are necessarily based in aboriginal title to land, so that the fundamental claim that must be made in any aboriginal rights case is to aboriginal title, or whether aboriginal title is instead one subset of the larger category of aboriginal rights, so that fishing and other aboriginal rights can exist independently of a claim to aboriginal title.
4 In the trilogy of R. v. Van der Peet, [1996] 2 S.C.R. 507, R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672, and R. v. Gladstone, [1996] 2 S.C.R. 723, this Court had opportunity to consider the question of the scope of the aboriginal rights recognized and affirmed by s. 35(1) . This case and Côté will require the application of the principles articulated in those cases to the question of the relationship between aboriginal title and the other aboriginal rights, particularly fishing rights, recognized and affirmed by s. 35(1) . Furthermore, these two related appeals involve the claim of an aboriginal right to fish within the historical boundaries of New France. As such, this Court must answer the question of whether, under the principles of the Van der Peet trilogy, the constitutional protection of s. 35(1) extends to aboriginal practices, customs, and traditions which may not have achieved legal recognition under the colonial regime of New France prior to the transition to British sovereignty in 1763.
II. Facts
5 The appellant, George Weldon Adams, is a Mohawk who lives on the St. Regis (Akwesasne) Reserve. He was charged with fishing for perch without a licence contrary to s. 4(1) of the Quebec Fishery Regulations, C.R.C., c. 852.
6 The facts giving rise to this charge are not in dispute. On May 7, 1982 the appellant was fishing for perch in the marshes of the southwest portion of Lake St. Francis, a part of the St. Lawrence River approximately 95 km west of Montreal and some 15 km from a current Akwesasne village (the “fishing area”). He was fishing during the spawning season and caught 300 pounds of perch with a seine net made of very fine mesh several hundred feet in length. The appellant was fishing without a licence; under the Quebec Fishery Regulations a licence was in fact unavailable, although under s. 5(9) of the Regulations he could have applied for an exercise of Ministerial discretion permitting him to fish for food. The appellant did not apply for such permission.
7 At the time at which the appellant was charged ss. 4(1) and 5(9) of the Quebec Fishery Regulations provided:
4. (1) Subject to subsections (2), (3), (7.1), (18), and (20), no person shall fish unless he is the holder of a licence described in Schedule III.
5....
(9) The Minister may issue to an Indian or an Inuk, to a band of Indians or to an Inuit group, a special licence permitting, subject to the conditions set out therein, the catching of fish for food.
8 The appellant was convicted at trial. This conviction was upheld on appeal to the Quebec Superior Court and on further appeal to the Quebec Court of Appeal, Rothman J.A. dissenting.
III. Judgments Below
Court of Sessions of the Peace, [1985] 4 C.N.L.R. 123
9 At trial the appellant argued that in fishing for perch in Lake St. Francis he was acting pursuant to an aboriginal right existing either because of the aboriginal title of the Mohawks to the fishing area or because the Mohawks have a free-standing aboriginal right to fish in the fishing area. The appellant argued, further, that the Quebec Fishery Regulations constituted an unjustified infringement of this right and that, as such, they were in violation of s. 35(1) of the Constitution Act, 1982 and must be held to be of no force or effect by virtue of the operation of s. 52 of the Constitution Act, 1982 .
10 Barrette Ct. S.P.J. at p. 128 made the following findings of fact with regards to the presence of the Mohawks, whom he found to be one of the Five Nations of the Iroquois, in the region of the fishing area:
[translation] History teaches that the Iroquois as such occupied the two banks of the St. Lawrence between Montreal and Québec at the time of the arrival of Jacques Cartier. They were no longer there when Champlain arrived.
The Mohawks, one of the five (5) Iroquois nations, frequented the territory situated on the banks of the St. Lawrence upstream of Montreal and they controlled the river towards the west around 1615, and this area comprised at least part of their hunting and fishing territory. They went to war in order to ensure the control of this area.
...
One fact is certain. In 1754, a group of Mohawks from the Caughnawaga Reserve established a permanent settlement on the two banks of the St. Lawrence River and the islands situated on the extreme western end of Lake St. Francis. This occupation took place with the knowledge of the French authorities of the time, even if no title was granted to them. . . .
11 Barrette Ct. S.P.J. held that these facts regarding the Mohawks’ historical presence in the area supported the appellant’s position that his ancestors had aboriginal title to the lands in question. He held further, however, that this title was extinguished prior to 1982 and that, as such, it could not support an incidental aboriginal right to fish in the waters in the area.
12 Barrette Ct. S.P.J. noted that in 1845 the water level in the St. Lawrence River was raised owing to the construction of the Beauharnois canal. The result of this rise in the water level was that the lands of the fishing area were submerged. Barrette Ct. S.P.J. also noted that in 1888 an agreement for the cession of land, including the fishing area, was entered into by the Mohawks, although the Mohawks contested this cession immediately upon its taking effect and continue to dispute its validity. Barrette Ct. S.P.J. held that it was unnecessary to consider whether the 1888 cession was valid. He held at p. 135 that the submersion of the land was sufficient to extinguish any aboriginal title to the disputed lands; upon submersion aboriginal title passed to the Crown because the beds of all navigable rivers are Crown lands:
[translation] This marsh is no longer part of Dundee Lands. And if the riparian landholders at one time could have asserted some right of ownership on some part, the Crown has long ago prescribed this right since the bed of a navigable river is part of the public domain.
13 Barrette Ct. S.P.J. went on, at pp. 139-40, to hold that while the Mohawks’ aboriginal title to the lands had been extinguished, the facts were sufficient to demonstrate that the Mohawks had a free-standing aboriginal right to fish in Lake St. Francis:
[translation] In addition to their rights over their lands, the Mohawks have always had and have always exercised a right of hunting and fishing on the St. Lawrence River and in particular on Lake St. Francis in this part situated in the southwest area of this lake and where there are numerous islands and very vast marshes.
...
This was a hunting and fishing territory situated in the immediate neighbourhood of their village and which is part of an easily identifiable whole.
Barrette Ct. S.P.J. held that this right had not been extinguished.
14 Barrette Ct. S.P.J. nonetheless convicted the appellant. He did so on the basis that aboriginal fishing rights are not absolute; Parliament retains the power to regulate aboriginal fishing rights (at p. 140):
[translation] This having been established, the exercise of this hunting and fishing right is not absolute. This right cannot be exercised without taking into account the laws which Parliament has legally adopted and applied in accordance with the Constitution.
...
The court considers that it is reasonable, in a free and democratic society, that the aboriginal right of the Mohawks to fish on the St. Lawrence River and Lake St. Francis is subject to the regulation provided for in the Quebec Fishery Regulations.
He noted in support of this conclusion that the licence only affects the manner of the exercise of the appellant’s aboriginal right.
Superior Court, [1985] 4 C.N.L.R. 39
15 The appellant was unsuccessful in his appeal to the Superior Court. Paul J. held that the appellant’s ancestors had enjoyed aboriginal title to the fishing area under the terms of the Royal Proclamation of 1763, R.S.C., 1985, App. II, No. 1, but that title was extinguished when, in 1888, the Mohawks ceded their title to the Crown. Further, Paul J. agreed at p. 49 with the trial judge that upon submersion of the lands in 1845 the aboriginal title held by the appellant’s ancestors ceased to exist:
[translation] Consequently, since these lands were surrendered in 1888 and since the court must consider this surrender as legal and valid, the Indians of St. Regis cannot claim an aboriginal right to fish based on the “Indian title” which they had on Dundee Lands in front of Lake St. Francis (the place where the offence was committed by appellant). Such a usufruct, although it once existed, no longer exists since 1888 because of the surrender.
Moreover, the weedbeds or marshes in front of these lands form part of Lake St. Francis, and are consequently part of the public domain from the shore and Indians cannot claim exclusive ownership or even any particular right whatsoever.
16 Paul J. agreed with Barrette Ct. S.P.J., however, that the Mohawks have an aboriginal right to fish in Lake St. Francis, although his reasons for holding that they do so differed from those of Barrette Ct. S.P.J. Paul J. did not rely specifically on the Mohawks’ traditional exploitation of the St. Lawrence fishery, but rather on the general importance of fishing to the life and survival of the Mohawks (at p. 50):
[translation] I think that it cannot be doubted that Indians have an aboriginal right to hunt, fish and even to trap for their livelihood. Fishing, hunting and trapping constitute traditionally and historically their means of subsistence and livelihood in the country which they have inhabited since well before 1763. And since 1763, they have continued up to a certain point and depending upon the usages and customs to live “by hunting, trapping and fishing”.
17 In the result, Paul J. affirmed the appellant’s conviction on the basis that the existence of this aboriginal right did not abrogate Parliament’s powers to regulate fishing, with the result that the Quebec Fishery Regulations could not be said to have infringed the appellant’s aboriginal rights.
Court of Appeal, [1993] 3 C.N.L.R. 98
18 Beauregard J.A. accepted Barrette Ct. S.P.J.’s findings of fact but held, at p. 110, that those facts were insufficient to support the appellant’s claim that the Mohawks had “original” aboriginal title to the fishing area. The facts demonstrated only that the Mohawks occasionally exploited the lands in question; they did not indicate a sufficient presence in the region to support a claim to original aboriginal title:
[translation] Even though, according to witness Bruce Trigger, the Mohawks fished and hunted in Lake Saint-François during the 17th and 18th centuries, I feel that those activities, which were carried out in an area two hundred miles away from their settlements south of Lake George, do not provide a sufficient basis to claim original Indian title, according to the criteria set forth in Calder.
Beauregard J.A. held, however, that s. 35(1) not only protects “original” aboriginal title to lands, of the sort contemplated by Calder v. Attorney General of British Columbia, [1973] S.C.R. 313, but that s. 35(1) also protects both aboriginal title obtained as a concession for the ceding of original Indian title (“conceded” title) and title granted informally by the French prior to the Royal Proclamation of 1763. On the facts of this case he was willing to assume that the lands of the fishing area were occupied by the Mohawks in 1763 so as to fall within the Proclamation and, if unextinguished, within s. 35(1) . He did not definitively resolve this question, however, because he held that even if aboriginal title did flow from the Proclamation, it was extinguished prior to 1982 either by the act of flooding the lands in 1845 or by the 1888 cession agreement.
19 Beauregard J.A. held that aboriginal fishing rights could not, absent a treaty, exist where there was no aboriginal title to land. Given his position that the appellant had not demonstrated existing aboriginal title of the Mohawks to the lands where he was fishing, Beauregard J.A. held that no aboriginal right to fish in the fishing area could exist.
20 Beauregard J.A. did state that if an aboriginal right to fish in Lake St. Francis had been demonstrated then s. 4(1) would not be enforceable against the appellant. Because the section amounts to a complete denial of aboriginal rights to fish in the area, it contravenes s. 35(1) . The possibility of the exercise of ministerial discretion does not compensate for this complete denial.
21 Proulx J.A. concurred with Beauregard J.A. but wrote reasons explaining why aboriginal rights cannot exist where there has been no demonstration of the existence of aboriginal title. In Proulx J.A.’s view at p. 121 [translation] “Indian title engenders rights, which vary according to the customs, culture, way of life and particular characteristics of each group as the years go by”; absent the existence of treaty rights, or aboriginal title, to an area, an aboriginal group cannot claim aboriginal rights to fish or hunt in that area. Proulx J.A. went on to hold, however, that if the appellant had been successful in demonstrating the existence of an aboriginal right to fish in Lake St. Francis, s. 4(1) would have infringed that right because the evidence demonstrated that the policy of the government (at p. 127) [translation] “essentially favours sport fishing, to the detriment of those wanting to fish for food” and that (at p. 128) [translation] “sport fishing is the major concern, after conservation”.
22 Rothman J.A. dissented, holding that an aboriginal right to fish can exist independently of aboriginal title and that, in this case, the appellant had demonstrated that the Mohawks have an aboriginal right to fish in the fishing area. Rothman J.A. emphasized at p. 135 that in R. v. Sparrow, [1990] 1 S.C.R. 1075, this Court held that aboriginal rights are not traditional property rights but are rather “rights held by a collective and ... in keeping with the culture and existence of that group” (emphasis added by Rothman J.A.). He held, at pp. 135-36, that in order to demonstrate a right to fish in this case the appellant simply had to show that “their possession [of the fishing area] existed before the arrival of Europeans and their role and fishing activities in the area were substantial and of long duration. . . . We are not concerned here with a right of way but rather with a way of life”. In this case, Rothman J.A. held at p. 136 that the facts as found by the trial judge were sufficient to demonstrate the existence of the Mohawks’ aboriginal right to fish for food in Lake St. Francis:
The evidence, as found by the trial judge and the Superior Court, establishes that, although the ancestors of the St. Regis Mohawks came originally from the region of Lake George in northern New York State, they hunted and fished in the upper St. Lawrence, including Lake St. Francis, from at least 1603 and probably before then. According to Professor Trigger, the Mohawks effectively occupied and controlled this territory -- they were unchallenged by other Indian tribes and the exercise of their ancestral rights was unopposed by the French. According to Professor Parent, they were here when the French arrived and had probably arrived between 1470 and 1490 A.D.
Rothman J.A. also held that there was nothing to suggest that, in 1888, when the Mohawks voluntarily ceded the lands of the fishing area, they also intended to give up their aboriginal rights to fish in the area.
23 Rothman J.A. held that the Mohawks’ right to fish was violated by s. 4(1). There was no evidence that the government’s regulatory scheme was aimed at conservation (the issuance of a permit did not depend on any concerns of conservation) and the scheme did not include any allocation system to ensure that Indians were given priority in the fishery.
IV. Grounds of Appeal
24 Leave to appeal to this Court was granted on December 9, 1993 ([1993] 4 S.C.R. v). On June 22, 1994 the following constitutional question was stated:
Is s. 4(1) of the Quebec Fishery Regulations, as they read on May 7, 1982, of no force or effect with respect to appellant in the circumstances of these proceedings in virtue of s. 52 of the Constitution Act, 1982 by reason of the aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982 invoked by appellant?
The appellant appealed on the basis that the Court of Appeal erred in holding that aboriginal fishing rights could not exist where there was no aboriginal title; moreover, the appellant argued that on the facts of this case such a fishing right had been shown to exist. The appellant appealed on the further basis that the Court of Appeal erred in holding that the Mohawks did not have aboriginal title to the fishing area; the appellant argued that such title did exist and that an aboriginal right to fish arose as an incident to that title.
V. Analysis
Aboriginal Title and Aboriginal Rights
25 As was noted at the outset, the fundamental question to be answered in this case is as to whether a claim to an aboriginal right to fish must rest in a claim to aboriginal title to the area in which the fishing took place. In other words, this Court must determine whether aboriginal rights are inherently based in aboriginal title to the land, or whether claims to title to the land are simply one manifestation of a broader‑based conception of aboriginal rights. The reasons of this Court in Van der Peet demonstrate that it is the latter characterization of the relationship between aboriginal rights and aboriginal title that is correct.
26 In Van der Peet, at para. 43, aboriginal rights were said to be best understood as:
... first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory.
From this basis the Court went on to hold, at para. 46, 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.
What this test, along with the conceptual basis which underlies it, indicates, is 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 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. 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.
27 To understand why aboriginal rights cannot be inexorably linked to aboriginal title it is only necessary to recall that some aboriginal peoples were nomadic, varying the location of their settlements with the season and changing circumstances. That this was the case does not alter the fact that nomadic peoples survived through reliance on the land prior to contact with Europeans and, further, that 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 the provision was intended to protect.
28 Moreover, some aboriginal peoples varied the location of their settlements both before and after contact. The Mohawks are one such people; the facts accepted by the trial judge in this case demonstrate that the Mohawks did not settle exclusively in one location either before or after contact with Europeans. That this is the case may (although I take no position on this point) preclude the establishment of aboriginal title to the lands on which they settled; however, it in no way subtracts from the fact that, wherever they were settled before or after contact, prior to contact the Mohawks engaged in practices, customs or traditions on the land which were integral to their distinctive culture.
29 Finally, I would note that the Court in Van der Peet did address itself to this question, holding at para. 74 that:
Aboriginal rights arise from the prior occupation of land, but they also arise from the prior social organization and distinctive cultures of aboriginal peoples on that land. In considering whether a claim to an aboriginal right has been made out, courts must look at both the relationship of an aboriginal claimant to the land and at the practices, customs and traditions arising from the claimant’s distinctive culture and society. Courts must not focus so entirely on the relationship of aboriginal peoples with the land that they lose sight of the other factors relevant to the identification and definition of aboriginal rights. [Emphasis in original.]
This analysis supports the position adopted here.
30 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. 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.
Aboriginal Rights and The Colony of New France
31 The respondent raises another important question concerning the doctrine of aboriginal rights under s. 35(1) . The aboriginal right to fish claimed in this instance relates to a tract of territory, specifically Lake St. Francis, which falls within the boundaries of New France prior to 1763. The respondent argues that this claimed right should be rejected as the French colonial regime never legally recognized the existence of aboriginal title or any incident aboriginal right to fish prior to the commencement of British sovereignty.
32 Under the British law governing colonization, the Crown assumed ownership of newly discovered territories subject to an underlying interest of indigenous peoples in the occupation and use of such territories. By contrast, it is argued that under the French regime of colonization, the French monarch assumed full and complete ownership of all newly discovered territories upon discovery and symbolic possession. In the absence of a specific concession, colonists and aboriginal peoples were only entitled to enjoy the use of the land through the grace and charity of the French monarch, but not by any recognized legal right. As the respondent explained its position:
[translation] In establishing its sovereignty, France established a legal regime in which the ownership of land and fishing rights belonged to the Crown from the point of departure. This