R. v. Adams

Supreme Court of Canada – [1996] 3 S.C.R. 101

Quebec Aboriginal rightsAboriginal titleSeigniorial law

This case was delivered on the same day as Côté. The Court found that aboriginal rights could exist independently from the existence of an exclusive aboriginal title.


Can we consider land claims as a type of Aboriginal rights claims or are Aboriginal rights rooted in claims to the land?


Ancestral rights can exist independently from aboriginal title on a territory (unanimous decision).


Between: George Weldon Adams

And: the Crown of Quebec

Intervener: Canada


Around 1615, the Mohawks used the St. Lawrence River and the surrounding waters as their fishing grounds, and with the four other member Nations of the Iroquois Confederacy, they controlled it.

In 1754, a group from Kahnawake came to live on both sides of the St. Lawrence River and on the islands nearby. The settlement was located on the west side of Lake St. Francis. The French knew about this settlement but never gave it any sort of title. This site became the Akwesasne reserve. In 1888, the Akwesasne Mohawks ceded their lands and Aboriginal title to the Crown after these lands were submerged during the construction of the Beauharnois Canal in 1845, rendering them unusable. According to government officials, fishing rights on Lake St. Francis were also part of the cession.

In 1982, Adams, a Mohawk from Akwesasne, went fishing on Lake St. Francis in Quebec, not far from his reserve, where he caught some 300 pounds of yellow perch using a net several hundred feet long with very fine mesh. He was charged with fishing without a licence contrary to the Quebec Fishery Regulations.


Adams: The relevant provision of the Quebec Fishery Regulations cannot be enforced against him since he was exercising an Aboriginal right to fish for food relating to the Mohawks’ Aboriginal title over Lake St. Francis, which is protected by section 35 of the Constitution Act, 1982.

 The Crown: Aboriginal rights are rooted in claims to the land. In this case, the claim must be rejected because the French regime has never recognized the existence of aboriginal title or of accessory aboriginal fishing rights.

Decision of the lower courts

Court of Sessions of the Peace (1985): Adams is convicted. Even though the Mohawks’ Aboriginal title had been extinguished in 1888, they had an independent Aboriginal right to fish for food on Lake St. Francis since the waters are close to the original site of their settlement. But this right is not absolute, and it can be limited by valid regulations from Parliament or the Province of Quebec.

 Superior Court of Quebec (1985): The appeal is dismissed. The Mohawks’ Aboriginal title over Lake St. Francis has been extinguished. There is a self-standing Aboriginal right to fish for food in these waters, because of the importance of fishing in the Mohawks’ lifestyle. However, since the province has the power to regulate fishing and the Regulation concerned does not infringe on his Aboriginal rights, Adams’ conviction was upheld.

Quebec Court of Appeal (1993): The protection given by section 35 (1) of the Constitution Act, 1982 applies not only to the original traditional lands but also to the lands received in exchange for surrendered ones and to lands given informally by the French before the Conquest in 1760. Accordingly, there was an Aboriginal title over Lake St. Francis, but it was extinguished before 1982 by either the submersion or the 1888 surrender. Since the surrender was not set out in a treaty, the Mohawks do not have any Aboriginal right to fish for food on their traditional fishing grounds. J. Rothman, dissenting, came to the conclusion that the Mohawks had an Aboriginal right to fish, which differs from an Aboriginal title. The Aboriginal right is not attached to any notion of property but belongs to an identified group and is linked to its traditional culture and lifestyle. The Mohawks’ Aboriginal right was never ceded to the Crown in 1888. The Regulation infringed on that right since there was no evidence that it had an objective of conservation and no fishing priority was given to the Mohawks.

Reasons for Judgement


Lamer, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, Major


Lamer (La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major): When there is evidence that a particular practice, custom or tradition that is integral to the distinctive culture of that group is occurring on the land, even if the case is not strong enough to support a claim to an Aboriginal title over it, the Aboriginal right to the practice, custom or tradition will have been proven. The practice of an Aboriginal right does not require that the group prove a connection with any specific land claim. This is an important distinction given that some Aboriginal people were nomadic. Recognizing that aboriginal title is an aboriginal right must not reflect the idea that “land use or occupation is unimportant.” (par. 30 of the decision).

The Mohawks showed that fishing in Lake St. Francis was an element of a practice, custom or tradition integral to their distinctive culture. To prove the extinguishment of an aboriginal right, there must be a proof of clear and plain intention – which was not presented in this case. Aboriginal rights cannot depend solely on the minister’s discretion. The practice of Adams’ fishing right as a discretion of the minister imposed undue hardship and impeded his preferred means of exercising his Aboriginal right to fish for food. In addition, the Court found that the discretionary power was not sufficiently regulated in order to ensure that the Crown’s fiduciary duty was discharged correctly, which infringed on Adams’ Aboriginal right. Adams’ conviction was annulled.

L’Heureux-Dubé: The acknowledgment of Aboriginal rights does not require a claim to Aboriginal title, but the relationship between Aboriginal rights and Aboriginal title plays an important part in assessing the nature and extent of Aboriginal rights.


After their constitutionalization in 1982, aboriginal rights were gradually defined and circumscribed by the Supreme Court of Canada, starting with Sparrow in 1990. Adams contributed to the “justification of infringement” test by stating that a ministerial discretionary power contained in a regulation can constitute an unjustified infringement on an Aboriginal right when the criteria for the exercising of this power are not stipulated in the regulation concerned (Olthuis, Kleer and Townshend, 2008: 42).

According to Otis, if the Adams case encourages coexistence between Aboriginal and non-Aboriginal peoples on the same territory, and puts into place an essential component of the constitutional arbitration policy between aboriginal and non-aboriginal rights by excluding the necessity of exclusivity, its broad definition of aboriginal rights offers the former a “poisoned” gift (Otis, 1997: 75). Not only does it exclude customs that have appeared after contact, it also appears to marginalize aboriginal title.

In the 1990s, the Quebec government, under both the Parti Québécois and Quebec Liberal Party administrations, had a more positive attitude regarding specific Aboriginal rights such as fishing than did its judiciary system (Lajoie et al., 1998: 84-85; Gélineau-Asseray and Lajoie, 2004: 509). These rights were officially recognized on the floor of the National Assembly and in general motions adopted, but mostly in theory and without any practical measures being adopted. The same goes for federal members of Parliament, with the notable exception of members of the Reform Party, which adopted the Supreme Court’s reasoning: even though Aboriginal rights are protected under the Constitution Act, 1982, they differ for each Aboriginal group, and unresolved claims are left to the courts. The definition of federal policy on this matter is therefore left to the Canadian judiciary system (Gélineau-Asseray and Lajoie, 2004: 511).

Related Cases

R. c. Sparrow, [1990] 1 R.C.S. 1075

R. v. Côté, [1996] 3 S.C.R. 139

R. c. Van der Peet, [1996] 2 R.C.S. 507


Boivin Richard. 1996. Le débat en Cour suprême du Canada sur l’existence de droits ancestraux au Québec, in Recherches amérindiennes au Québec 26 (2): 86-89.

Gélineau-Asseray Éric and Andrée Lajoie. 2004. Droits autochtones – Les conceptions canadiennes des droits ancestraux, in Revue juridique Thémis 38: 489-529.

Lajoie Andrée, Melançon Hugues, Rocher Guy and Richard Janda. 1998. Québec’s Conceptions of Aboriginal Rights, in Canadian Journal of Law and Society 13 (1): 63-86.

Olthuis John, Kleer Nancy and Roger Townshend. 2008. Aboriginal Law Handbook, 3rd edition, Toronto: Carswell.

OTIS Ghislain. 1997. Le diptyque Côté-Adams ou la préséance de l’ordre établi dans le droit postcolonial des peuples autochtones, In Constitutional FORUM 8 (3) : 70-78.

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