R v Syliboy

1928 CanLII 352 (NSSC)

Patterson (Acting) Co. Ct. J. — #

The defendant, who is the grand chief of the Mick Macks of Nova Scotia was convicted under the Lands and Forests Act, 1926 (N.S.), c. 4, of having in his possession at Askilton in the County of Inverness on November 4, last fifteen green pelts, fourteen muskrat and one fox. He made no attempt to deny having the pelts, indeed frankly admits having them, but claims that as an Indian he is not bound by the provisions of the Act, but has by Treaty the right to hunt and trap at all times. Every now and then for a number of years one has heard that our Indians were making these claims but, so far as I know, the matter has never been before a Court.

The Treaty relied upon is that of 1752, made between Governor Hopson of the Province of Nova Scotia 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:” (1 Nova Scotia Archives, p. 683). Article 4 in part says: — “It is agreed that the said Tribe of Indians shall not be hindered from but have free liberty to hunt and fish as usual.”

Observe the date 1752. Cape Breton between 1748 and 1763 was not part of Nova Scotia. It was owned and governed by the French, while Nova Scotia was a colony of Great Britain. It will be remembered that defendant is a Cape Breton Indian and that the offence alleged against him was committed in Cape Breton. Assuming for the time that the Treaty is still in force in Nova Scotia proper, can defendant claim protection under it? Unless there is something more than I have stated, clearly not. But, say his counsel, the Mick Mack Tribe throughout Nova Scotia, including Cape Breton, is one and indivisible, and the Treaty was made with the tribe, and a very bright and intelligent young Indian testifies that two of the signatories to it were Cape Breton Indians. The language of the Treaty not only lends no support to this contention, but shows that it is untenable, and I am satisfied that the young Indian is mistaken.

[…]

In 1794 the first of our many Game Acts was passed, 1794 (N.S.), c. 4. It provided that no person within a certain period each year should kill partridge or black duck but Indians and poor settlers. It might be argued that the exception goes to show that the Indians had a special right by treaty, but if they had such a right why mention it in the statute? It would seem to me that the proper interpretation would be that they having no such right by treaty were given it by statute. However that may be the next statute on the subject makes the point clear.

By s. 1 of R.S.N.S. 1851, c. 92, it was enacted that: —

”No person shall take or kill any partridge … between the first of March and the first of September in any year; but Indians and poor settlers may kill them for their own use at any season.”

Section 3 of that Act provides that: — “The sessions may make orders respecting the setting of snares or traps for catching moose,” and by s. 5, “may make orders for regulating the periods … within which moose may be killed.” If the Indians were excepted as to the taking or killing of partridge because they had special right by treaty, why were they not so excepted as to setting snares or killing moose?

Then follows a series of statutes prohibiting everyone, Indians not excepted, from hunting during certain seasons until we come to that under which this prosecution was brought. Where a statute and treaty conflict a British Court must follow the statute, (Re Carter Medicine Co.’s Trade-Mark, [1892] 3 Ch. 472; Walker v. Baird, [1892] A.C. 491, at pp. 494-5). The result therefore is that even assuming the so called Treaty of 1752 is a treaty; assuming that it was valid as such without ratification by parliament, and that any rights under it could be claimed by the Indians of all Nova Scotia as that Province is now constituted, the prosecution would still succeed, because the statute not the treaty prevails.

At the trial there was no discussion as to whether the so called treaty was really a treaty or not. Counsel for the defendant, whose closely reasoned brief I cannot too highly commend, did not touch this point. Apparently they are content to accept the description in the document itself, “Treaty or Articles of Peace,” but the prosecution raised the question and I must deal with it. 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.

Having called the agreement a treaty, and having perhaps lulled the Indians into believing it to be a treaty with all the sacredness of a treaty attached to it, it may be the Crown should not now be heard to say it is not a treaty. With that I have nothing to do. That is a matter for representations to the proper authorities — representations which if there is nothing else in the way of the Indians could hardly fail to be successful.

On behalf of the defendant one witness testified that all his life he had fished as he would without regard to the Fisheries Law, and defendant himself swears he has started hunting muskrat for the last thirty-four years on Hallowe’en, October 31.

Neither of them had ever been interfered with. The suggestion was that they had not been interfered with because they were within their rights in doing what they did by virtue of the treaty. I say nothing about fishing, but as to the hunting it was not until 1927 that the close season was extended to November 15. Until that year whenever there had been a close season on muskrat it had ended on November 1. If defendant did not start his hunting until October 31, the reason he was not proceeded against before seems obvious.

There is abundant evidence also that the Indians have been for many years receiving food, blankets, etc., from the government through the Indian agent because, says the defendant, of this treaty. I cannot agree. Rather I think they received these goods, and other benefits as well, not because of the treaty but by virtue of the successive statutes in that behalf: (1842 (N.S.), c. 16; 1844 (N.S.), c. 56; R.S.N.S. 1851, c. 58; and 1859 (N.S.), c. 14). The good work so begun and carried on when Nova Scotia was a separate Province was taken over by the federal government at Confederation and one is glad to learn is being so generously continued.

On no ground that has been advanced, and I am sure everything has been said or done that with any chance of success could have been said or done, can defendant in my opinion succeed. Such sympathy as a Judge is permitted to have is with defendant. I would gladly allow the appeal if I could find any sound reason for doing so, but I cannot and must confirm the conviction. The very capable Magistrate who heard the case below has, I am pleased to see, fixed the penalty at the very lowest figure that the Act allows. Even so I venture to express the hope that the authorities will not enforce the conviction.

I have no doubt whatever that defendant honestly believed that the treaty was valid and that he was entitled under it to kill muskrat or have their pelts in his possession at any time, and as I pointed out, a year ago or rather in 1926 it was no offence on November 4 to have green muskrat pelts in one’s possession. While everyone is presumed to know the law and to know the exact limits of the close season, it is more than likely — is it not a certainty — that the untutored mind of the defendant was not aware that in 1927 the close season had been lengthened to November 15? Of course, ignorance of the law excuses no one, but surely ignorance of the law under such circumstances can be urged as a plea for most lenient treatment — for in such a case as this waiving both penalty and costs.