Supreme Court of Canada –  3 S.C.R. 139
This case was delivered on the same day as Adams. It confirms that it is not necessary to prove the existence of an aboriginal title in order to demonstrate the existence of valid aboriginal rights.
The Court tries to standardize its aboriginal rights doctrine across Canada by refusing to impose different recognition rules according to a French or British colonial past.
As in Adams, the Court asks government’s representatives to use discretionary ministerial powers in a clear and framed way in order to avoid any infringement of aboriginal rights.
Can the accused claim an aboriginal or treaty right protected by the Constitution Act, 1982 allowing them to fish on their Quebec territory, formerly part of a French colony? If so, does the provincial regulation infringe on that right?
The colonial regime issue is not relevant. The ancestral activity had to be an integral part of the aboriginal group’s culture at the time of contact with the Europeans. Here, the accused have an ancestral right to fish, but the regulation is justified (unanimous decision).
Between: Franck Côté, Peter Decontie, Frida Morin-Côté, Russell Tenasco and Ben Decontie
And: the Crown of Quebec
Interveners: Canada, Atikamekw-Sipi / Council of the Atikamekw Nation and Chief Robert Whiteduck, on behalf of the Algonquins of Golden Lake First Nation and on behalf of others
In 1984, Côté, Morin-Côté, Tenasco and the Deconties, all Algonquin Indians, members of the Kitigan Zibi Anishinabeg First Nation, traveled into a controlled harvest zone (Z.E.C.) as part of an outing to teach traditional fishing methods to young Algonquins.
They were all convicted under Quebec’s Regulation respecting controlled zones for going into a Z.E.C. without disbursing the compulsory fee for motor vehicle access as they refused to pay it when they entered the Z.E.C. Also, Côté was charged and convicted, under the Quebec Fishery Regulations, of fishing within the zone without a valid license.
Côté et al.: The zone in question was located within their traditional hunting and fishing grounds. This meant that the Z.E.C. regulations infringed on their Aboriginal right to fish, and their community’s Aboriginal title over the same area. They also hold a treaty right to fish on their traditional lands, which are encompassed in the Z.E.C.
The Crown of Quebec: The Royal Proclamation of 1763 never created new Aboriginal rights or titles, since it required a specific concession by the French Crown for them to be recognized. Furthermore, the Terra Nullius doctrine applies in this case because the property rights over the territory of the French colony passed to the Crown when it took possession of the land.
Provincial Court of Quebec (1988): The accused did have an Aboriginal right to fish in the Z.E.C., but they were not exercising this right at the time of their arrest, since they were fishing for the purpose of teaching. They are convicted of the offence.
Superior Court of Quebec (1989): The convictions are reaffirmed, albeit on other grounds than those of the lower court. The evidence of occupancy by the Algonquins is not sufficient to constitute an Aboriginal title, and there is no treaty right for the Algonquins to fish for food in the Z.E.C., because no valid treaty was concluded between the Algonquins and the British authorities.
Quebec Court of Appeal (1993): The convictions are upheld. The claim of an Aboriginal title is rejected, but there is a treaty right to fish for food in the Z.E.C. However, the regulations concerning admission fees and licenses are part of valid objectives and the infringement by the province is minimal under the Sparrow test. J. Delisle, dissenting, found that the regulations did not meet the Sparrow test, because the requirement of a mandatory fishing licence for the Algonquins cannot be justified as a minimal infringement on the province’s part.
Lamer, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, Major
The protection of constitutional rights should not vary “depending upon the historical idiosyncrasies of colonization over particular regions of the country” (par. 53 of the decision).
The accused were not required to demonstrate the existence of an Aboriginal title over the Z.E.C. to prove an ancestral right to fish, whether in common law or under the Royal Proclamation of 1763. As established in R. v. Adams, Aboriginal rights may exist independently of Aboriginal title.
As for the existence of an Aboriginal right to fish, the evidence supplied by the appellants satisfactorily supported that fishing for food on the territory of the Z.E.C. was a significant part of the Algonquins’ lifestyle in 1603, when they first came into contact with French settlers in the area. The Van der Peet test was met.
The Regulation respecting controlled zones infringes on the accused right to fish for food within the Z.E.C. An Algonquin is entitled to go into the Z.E.C. by different means, except by motor vehicle, without paying an access fee. Making the entry subject to a fee for motor vehicles only does not impair their ancestral right to fish for food, since the purpose of the fee is valid, that is, to ensure the maintenance of the facilities and roads of the Z.E.C.
Discretionary power should always be clearly delineated and warranted. Without arguing that discretionary authority is undesirable in regard to Aboriginal rights, the Court pointed out that governments should establish a set of criteria in order to have the ability to explain their action after the fact
The Supreme Court refuses to impose different acknowledgement rules because of the French colonial history. According to some authors, like Otis, by choosing a uniform Canadian regime, it marginalizes and makes commonplace the reference to colonial law.
With section 35, the Court presents aboriginal rights as the result of an intercultural alliance (Otis, 1997). It encourages the emergence of a culturalist view of indigeneity.
As in the Adams decision, the Côté case urges government officials to use ministerial authority in a justifiable and clear manner in order to avoid any infringement on Aboriginal rights. Criteria must be established to guide senior government officials in the exercising of their discretionary authority (Isaac, 2004: 384).
R. v. Adams,  3 S.C.R. 101
R. v. Van der Peet,  2 S.C.R. 507
R. v. Gladstone,  2 S.C.R. 723
R. v. N.T.C. Smokehouse Ltd.,  2 S.C.R. 672
R. v. Sparrow,  1 S.C.R. 1075
Isaac Thomas. 2004. Aboriginal Law: Commentary, Cases and Materials. 3rd edition. Saskatoon: Purich Publications.
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.