Interpretation of the 1752 Treaty after Syliboy

In 1928, Grand Chief Gabriel Syliboy was charged and ultimately convicted of hunting muskrats out of season on Unamaki (Cape Breton). Justice Patterson’s interpretation of the 1752 treaty in R v Syliboy—though ultimately rejected by Canadian courts—would stand as an authoritative common law precedent for many years to come. The decision would influence relationships between Mi’kmaq peoples and the Crown long after it was issued. As William Wicken notes:¹

In approaching treaties signed with Mi’kmaq peoples, federal and provincial governments have ignored community perspectives and reinforced Judge Patterson’s viewpoint of treaty-making. Though treaty issues have been before the courts on numerous occasions over the past sixty years, scant attention has been focused on how the Mi’kmaq understood treaties both at their signing and afterward. A 1974 memorandum, for instance, sent by Nova Scotia’s deputy Attorney-General, to the president of the Union of Nova Scotia Indians noted that:

The law in Nova Scotia would appear to be basically summed up in the decision of R v Syliboy (1929), 50 CCC 389, a decision of the County Court. In that particular case the court decided that the treaties referred to were not made between competent contracting parties and did not extend to the particular people in question.

As a result of Patterson’s judgment, the Department of Indian Affairs refused to provide lawyers in cases where Mi’kmaq were charged with violations of provincial game laws, forcing communities to raise funds privately to pay legal expenses. Even when counsel was retained, clients were at times advised to plead guilty rather than enter treaty rights in defence.