Simon v The Queen, 1985 CanLII 11 (SCC)

Dickson C.J.C. – #

This case raises the important question of the interplay between the treaty rights of native peoples and provincial legislation. The right to hunt, which remains important to the livelihood and way of life of the Micmac people, has come into conflict with game preservation legislation in effect in the Province of Nova Scotia. The main question before this Court is whether, pursuant to a Treaty of 1752 between the British Crown and the Micmac, and to s. 88 of the Indian Act, R.S.C. 1970, c. 1-6, the appellant, James Matthew Simon, enjoys hunting rights which preclude his prosecution for offences under the Lands and Forests Act, R.S.N.S. 1967, c. 163.

The appellant is a member of the Shubenacadie Indian Brook Band (No. 2) of the Micmac people and a registered Indian under the Indian Act. He was charged under s. 150(1) of the Lands and Forests Act with possession of a rifle and shotgun cartridges.

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The Treaty of 1752, the relevant part of which states at article 4 that the Micmacs have “free liberty of Hunting & Fishing as usual”, provides:

Treaty or Articles of Peace and Friendship Renewed between His Excellency Peregrine Thomas Hopson Esquire Captain General and Governor in Chief in and over His Majesty’s Province of Nova Scotia or Acadie. Vice Admiral of the same & Colonel of one of His Majesty’s Regiments of Foot, and His Majesty’s Council on behalf of His Majesty and Major Jean Baptiste Cope, chief Sachem of the Tribe of Mick Mack Indians Inhabiting the Eastern Coast of the said Province, and Andrew Hadley Martin, Gabriel Martin & Francis Jeremiah, Members and Delegates of the said Tribe, for themselves and their said Tribe their Heirs, and the Heirs of their Heirs forever, Begun made and concluded in the manner, form and Tenor following, vizt:

1. It is agreed that the Articles of Submission and Agreement, made at Boston in New England by the Delegates of the Penobscot Norridgwolk & St. John’s Indians, in the year 1725 Ratified & Confirmed by all the Nova Scotia Tribes, at Annapolis Royal, in the month of June 1726, & lately renewed with Governor Cornwallis at Halifax, & Ratified at St. John’s River, now read over, Explained and Interpreted, shall be and are hereby from this time forward Renewed, Reiterated, and forever Confirmed by them and their Tribe; and the said Indians for themselves and their Tribe and their Heirs aforesaid Do make & Renew the same Solemn Submissions and promisses for the Strickt observance of all the Articles therein contained as at any time heretofore that been done.

2. That all Transactions during the late War shall on both sides be buried in Oblivion with the Hatchet, and that the said Indians shall have all favour, Friendship & Protection shewn them from this His Majesty’s Government.

3. That the said Tribe shall use their utmost endeavours to bring in the other Indians to Renew and Ratify this Peace, and shall discover and make known any attempts or designs of any other Indians or any Enemy whatever against His Majestys Subjects within this Province so soon as they shall know thereof and shall also hinder and Obstruct the same to the utmost of their Power, and on the other hand if any of the Indians refusing to ratify this Peace, shall make War upon the Tribe who have now confirmed the same; they shall upon Application have such aid and Assistance from the Government for their Defence, as the case may require.

4. It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting & Fishing as usual: and that if they shall think a Truckhouse needful at the River Chibenaccadie or any other place of their resort, they shall have the same built and proper Merchandize lodged therein, to be Exchanged for what the Indians shall have to dispose of, and that in the mean time the said Indians shall have free liberty to bring for Sale to Halifax or any other Settlement within this Province, Skins, feathers, fowl, fish or any other thing they shall have to sell, where they shall have liberty to dispose thereof to the best Advantage.

5. That a Quantity of Bread, Flour, & such other Provisions as can be procured, necessary for the Familys, and proportionable to the number of the said Indians, shall be given them half yearly for the time to come; and the same regard shall be had to the other Tribes that shall hereafter agree to Renew and Ratify the Peace upon the Terms and Conditions now Stipulated.

6. That to Cherish a good Harmony & mutual Correspondence between the said Indians & this Government, His Excellency Peregrine Thomas Hopson Esqr. Captain General & Governor in Chief in & over His Majesty’s Province of Nova Scotia or Accadie, Vice Admiral of the same & Colonel of one of His Majesty’s Regiments of Foot, hereby Promises on the Part of His Majesty, that the said Indians shall upon the first day of October Yearly, so long as they shall Continue in Friendship, Receive Presents of Blankets, Tobacco, and some Powder & Shot; and the said Indians promise once every Year, upon the first of October to come by themselves or their Delegates and Receive the said Presents and Renew their Friendship and Submissions.

7. That the Indians shall use their best Endeavours to save the lives and goods of any People Shipwrecked on this Coast, where they resort, and shall Conduct the People saved to Halifax with their Goods, & a Reward adequate to the Salvadge shall be given them.

8. That all Disputes whatsoever that may happen to arise between the Indians now at Peace, and others His Majesty’s Subjects in this Province shall be tryed in His Majesty’s Courts of Civil Judicature, where the Indians shall have the same benefit, Advantages and Priviledges, as any others of His Majesty’s Subjects.

In Faith and Testimony whereof, the Great Seal of the Province is hereunto Appended, and the party’s to these presents have hereunto interchangeably Set their Hands in the Council Chamber at Halifax this 22nd day of Nov. 1752, in the Twenty sixth year of His Majesty’s Reign.

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Was the Treaty of 1752 Validly Created by Competent Parties? #

The respondent raised the issue of the capacity of the parties for two reasons which are stated at p. 8 of the factum:

The issue of capacity is raised for the purpose of illustrating that the Treaty of 1752 was of a lesser status than an International Treaty and therefore is more easily terminated. The issue is also raised to give the document an historical legal context as this issue has been raised in previous cases.

The question of whether the Treaty of 1752 constitutes an international-type treaty is only relevant to the respondent’s argument regarding the appropriate legal tests for the termination of the Treaty. I will address this issue, therefore, in relation to the question of whether the Treaty of 1752 was terminated by hostilities between the British and the Micmac in 1753.

The historical legal context provided by the respondent consists primarily of the 1929 decision of Acting Judge Patterson in R. v. Syliboy, [1929] 1 D.L.R. 307 (Co. Ct.) and the academic commentary it generated immediately following its rendering. In the Syliboy case Patterson J. addressed the question of the capacity of the parties to enter into a treaty at pp. 313-14:

Two considerations are involved. First, did the Indians of Nova Scotia have status to enter into a treaty? And second, did Governor Hopson have authority to enter into one with them? Both questions must I think be answered in the negative.

(1) “Treaties are unconstrained Acts of independent powers.” But the Indians were never regarded as an independent power. A civilized nation first discovering a country of uncivilized people or savages held such country as its own until such time as by treaty it was transferred to some other civilized nation. The savages’ rights of sovereignty even of ownership were never recognized. Nova Scotia had passed to Great Britain not by gift or purchase from or even by conquest of the Indians but by treaty with France, which had acquired it by priority of discovery and ancient possession; and the Indians passed with it.

Indeed the very fact that certain Indians sought from the Governor the privilege or right to hunt in Nova Scotia as usual shows that they did not claim to be an independent nation owning or possessing their lands. If they were, why go to another nation asking this privilege or right and giving promise of good behaviour that they might obtain it? In my judgment the Treaty of 1752 is not a treaty at all and is not to be treated as such; it is at best a mere agreement made by the Governor and council with a handful of Indians giving them in return for good behaviour food, presents, and the right to hunt and fish as usual — an agreement that, as we have seen, was very shortly after broken.

(2) Did Governor Hopson have authority to make a treaty? I think not. “Treaties can be made only by the constituted authorities of nations or by persons specially deputed by them for that purpose.” Clearly our treaty was not made with the constituted authorities of Great Britain. But was Governor Hopson specially deputed by them? Cornwallis' commission is the manual not only for himself but for his successors and you will search it in vain for any power to sign treaties.

It should be noted that the language used by Patterson J., illustrated in this passage, reflects the biases and prejudices of another era in our history. Such language is no longer acceptable in Canadian law and indeed is inconsistent with a growing sensitivity to native rights in Canada. With regard to the substance of Patterson J.’s words, leaving aside for the moment the question of whether treaties are international-type documents, his conclusions on capacity are not convincing.

No court, with the exception of the Nova Scotia Supreme Court, Appeal Division in the present case, has agreed explicitly with the conclusion of Patterson J. that the Indians and Governor Hopson lacked capacity to enter into an enforceable treaty. The Treaty of 1752 was implicitly assumed to have been validly created in R. v. Simon (1958), 124 C.C.C. 100 (N.B.C.A.); R. v. Francis (1969), 10 D.L.R. (3d) 189 (N.B.C.A.); R. v. Paul (1980), 30 N.B.R. (2d) 545 (C.A.); R. v. Cope, supra; R. v. Atwin and Sacobie, [1981] 2 C.N.L.R. 99 (N.B. Prov. Ct.); R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta, [1982] 2 All E.R. 118 (C.A.); R. v. Paul and Polchies (1984), 58 N.B.R. (2d) 297 (Prov. Ct.) In R. v. Isaac, supra, Cooper J.A., after noting Patterson J.’s conclusions on the validity of the Treaty of 1752, expressed doubt as to their correctness, at p. 496:

The Treaty of 1752 was considered in Rex v. Syliboy.… It was there held by Patterson, Acting C.C.J., that it did not extend to Cape Breton Indians and further that it was not in reality a treaty. I have doubt as to the second finding and express no opinion on it, but I have no doubt as to the correctness of the first finding.

N.A.M. MacKenzie, in “Indians and Treaties in Law” (1929), 7 Can. Bar Rev. 561, disagreed with Patterson J.’s ruling that the Indians did not have the capacity, nor the Governor the authority, to conclude a valid treaty. MacKenzie stated at p. 565:

As to the capacity of the Indians to contract and the authority of Governor Hopson to enter into such an agreement, with all deference to His Honour, both seem to have been present. Innumerable treaties and agreements of a similar character were made by Great Britain, France, the United States of America and Canada with the Indian tribes inhabiting this continent, and these treaties and agreements have been and still are held to be binding.Nor would Governor Hopson require special “powers” to enter into such an agreement. Ordinarily “full powers” specially conferred are essential to the proper negotiating of a treaty, but the Indians were not on a par with a sovereign state and fewer formalities were required in their case. Governor Hopson was the representative of His Majesty and as such had sufficient authority to make an agreement with the Indian tribes.

The Treaty was entered into for the benefit of both the British Crown and the Micmac people, to maintain peace and order as well as to recognize and confirm the existing hunting and fishing rights of the Micmac. In my opinion, both the Governor and the Micmac entered into the Treaty with the intention of creating mutually binding obligations which would be solemnly respected. It also provided a mechanism for dispute resolution. The Micmac Chief and the three other Micmac signatories, as delegates of the Micmac people, would have possessed full capacity to enter into a binding treaty on behalf of the Micmac. Governor Hopson was the delegate and legal representative of His Majesty The King. It is fair to assume that the Micmac would have believed that Governor Hopson, acting on behalf of His Majesty The King, had the necessary authority to enter into a valid treaty with them. I would hold that the Treaty of 1752 was validly created by competent parties.

Does the Treaty Contain a Right to Hunt and What is the Nature and Scope of this Right? #

Article 4 of the Treaty of 1752 states, “It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting & Fishing as usual.…” What is the nature and scope of the “liberty of Hunting & Fishing” contained in the Treaty?

The majority of the Nova Scotia Court of Appeal seemed to imply that the Treaty contained merely a general acknowledgement of pre-existing non-treaty aboriginal rights and not an independent source of protection of hunting rights upon which the appellant could rely. In my opinion, the Treaty, by providing that the Micmac should not be hindered from but should have free liberty of hunting and fishing as usual, constitutes a positive source of protection against infringements on hunting rights. The fact that the right to hunt already existed at the time the Treaty was entered into by virtue of the Micmac’s general aboriginal right to hunt does not negate or minimize the significance of the protection of hunting rights expressly included in the Treaty.

Such an interpretation accords with the generally accepted view that Indian treaties should be given a fair, large and liberal construction in favour of the Indians. This principle of interpretation was most recently affirmed by this Court in Nowegijick v. The Queen, [1983] 1 S.C.R. 29. I had occasion to say the following at p. 36:

It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. ...In Jones v. Meehan, 175 U.S. 1 (1899), it was held that Indian treaties “must ... be construed, not according to the technical meaning of [their] words ... but in the sense in which they would naturally be understood by the Indians”.

Having determined that the Treaty embodies a right to hunt, it is necessary to consider the respondent’s contention that the right to hunt is limited to hunting for purposes and by methods usual in 1752 because of the inclusion of the modifier “as usual” after the right to hunt.

First of all, I do not read the phrase “as usual” as refering to the types of weapons to be used by the Micmac and limiting them to those used in 1752. Any such construction would place upon the ability of the Micmac to hunt an unnecessary and artificial constraint out of keeping with the principle that Indian treaties should be liberally construed. Indeed, the inclusion of the phrase “as usual” appears to reflect a concern that the right to hunt be interpreted in a flexible way that is sensitive to the evolution of changes in normal hunting practices. The phrase thereby ensures that the Treaty will be an effective source of protection of hunting rights.

Secondly, the respondent maintained that “as usual” should be interpreted to limit the treaty protection to hunting for non-commercial purposes. It is difficult to see the basis for this argument in the absence of evidence regarding the purpose for which the appellant was hunting. In any event, article 4 of the Treaty appears to contemplate hunting for commercial purposes when it refers to the construction of a truck house as a place of exchange and mentions the liberty of the Micmac to bring game to sale: see R. v. Paul, supra, at p. 563 per Ryan J.A., dissenting in part.

It should be clarified at this point that the right to hunt to be effective must embody those activities reasonably incidental to the act of hunting itself, an example of which is travelling with the requisite hunting equipment to the hunting grounds. In this case, the appellant was not charged with hunting in a manner contrary to public safety in violation of the Lands and Forests Act but with illegal possession of a rifle and ammunition upon a road passing through or by a forest, wood or resort of moose or deer contrary to s.150(1) of the same Act. The appellant was simply travelling in his truck along a road with a gun and some ammunition. He maintained that he was going to hunt in the vicinity. In my opinion, it is implicit in the right granted under article 4 of the Treaty of 1752 that the appellant has the right to possess a gun and ammunition in a safe manner in order to be able to exercise the right to hunt. Accordingly, I conclude that the appellant was exercising his right to hunt under the Treaty.