|
[1999] 3
S.C.R. |
R. v. |
456 |
Donald John Marshall, Jr. Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for New Brunswick,
the West Nova Fishermen's Coalition,
the Native Council of Nova Scotia
and the Union of New Brunswick Indians Interveners
Indexed
as: R. v.
File
No.: 26014.
1998: November 5; 1999: September 17.
Present: Lamer C.J. and
L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Binnie JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR NOVA
Indians
-- Treaty rights -- Fishing rights -- Accused, a Mi'kmaq Indian, fishing with
prohibited net during close period and selling fish caught without a licence in
violation of federal fishery regulations -- Whether accused possessed treaty
right to catch and sell fish that exempted him from compliance with regulations
-- Mi'kmaq Treaties of 1760-61 -- Maritime Provinces Fishery Regulations,
SOR/93-55, ss. 4(1)(a), 20 -- Fishery (General) Regulations, SOR/93-53,
s. 35(2).
The
accused, a Mi'kmaq Indian, was charged with three offences set out in the
federal fishery regulations: the selling of eels without a licence, fishing
without a licence and fishing during the close season with illegal nets. He
admitted that he had caught and sold 463 pounds of eels without a licence and
with a prohibited net within close times. The only issue at trial was whether
he possessed a treaty right to catch and sell fish under the treaties of
1760-61 that exempted him from compliance with the regulations. During the
negotiations leading to the treaties of 1760-61, the aboriginal leaders asked
for truckhouses "for the furnishing them with necessaries, in Exchange for
their Peltry" in response to the Governor's inquiry "Whether they
were directed by their Tribes, to propose any other particulars to be Treated
upon at this Time". The written document, however, contained only the
promise by the Mi'kmaq not to "Traffick, Barter or Exchange any
Commodities in any manner but with such persons, or the Manager of such
Truckhouses as shall be appointed or established by His majesty's
Governor". While this "trade clause" is framed in negative terms
as a restraint on the ability of the Mi'kmaq to trade with non-government
individuals, the trial judge found that it reflected a grant to them of the
positive right to bring the products of their hunting, fishing and gathering to
a truckhouse to trade. He also found that when the exclusive trade obligation
and the system of truckhouses and licensed traders fell into disuse, the
"right to bring" disappeared. The accused was convicted on all three
counts. The Court of Appeal upheld the convictions. It concluded that the trade
clause did not grant the Mi'kmaq any rights, but represented a mechanism
imposed upon them to help ensure that the peace between the Mi'kmaq and the
British was a lasting one, by obviating the need of the Mi'kmaq to trade with
the enemies of the British or unscrupulous traders.
Held
(Gonthier and McLachlin JJ. dissenting): The appeal should be allowed and
an acquittal entered on all charges.
Per
Lamer C.J. and L'Heureux-Dubé, Cory, Iacobucci and Binnie JJ.: When
interpreting the treaties the Court of Appeal erred in rejecting the use of
extrinsic evidence in the absence of ambiguity. Firstly, even in a modern
commercial context, extrinsic evidence is available to show that a written
document does not include all of the terms of an agreement. Secondly, extrinsic
evidence of the historical and cultural context of a treaty may be received even
if the treaty document purports to contain all of the terms and even absent any
ambiguity on the face of the treaty. Thirdly, where a treaty was concluded
orally and afterwards written up by representatives of the Crown, it would be
unconscionable for the Crown to ignore the oral terms while relying on the
written ones.
There
was more to the treaty entitlement than merely the right to bring fish and
wildlife to truckhouses. While the treaties set out a restrictive covenant and
do not say anything about a positive Mi'kmaq right to trade, they do not
contain all the promises made and all the terms and conditions mutually agreed
to. Although the trial judge drew positive implications from the negative trade
clause, such limited relief is inadequate where the British-drafted treaty
document does not accord with the British-drafted minutes of the negotiating
sessions and more favourable terms are evident from the other documents and
evidence the trial judge regarded as reliable. Such an overly deferential attitude
to the treaty document was inconsistent with a proper recognition of the
difficulties of proof confronted by aboriginal people. The trial judge's narrow
view of what constituted "the treaty" led to the equally narrow legal
conclusion that the Mi'kmaq trading entitlement, such as it was, terminated in
the 1780s. It is the common intention of the parties in 1760 to which effect
must be given. The trade clause would not have advanced British objectives
(peaceful relations with a self-sufficient Mi'kmaq people) or Mi'kmaq
objectives (access to the European "necessaries" on which they had
come to rely) unless the Mi'kmaq were assured at the same time of continuing
access, implicitly or explicitly, to a harvest of wildlife to trade.
This
appeal should be allowed because nothing less would uphold the honour and
integrity of the Crown in its dealings with the Mi'kmaq people to secure their
peace and friendship, as best the content of those treaty promises can now be
ascertained. If the law is prepared to supply the deficiencies of written
contracts prepared by sophisticated parties and their legal advisors in order
to produce a sensible result that accords with the intent of both parties,
though unexpressed, the law cannot ask less of the honour and dignity of the
Crown in its dealings with First Nations. An interpretation of events that
turns a positive Mi'kmaq trade demand into a negative Mi'kmaq covenant is not
consistent with the honour and integrity of the Crown. Nor is it consistent to
conclude that the Governor, seeking in good faith to address the trade demands
of the Mi'kmaq, accepted the Mi'kmaq suggestion of a trading facility while
denying any treaty protection to Mi'kmaq access to the things that were to be
traded, even though these things were identified and priced in the treaty
negotiations. The trade arrangement must be interpreted in a manner which gives
meaning and substance to the oral promises made by the Crown during the treaty
negotiations. The promise of access to "necessaries" through trade in
wildlife was the key point, and where a right has been granted, there must be
more than a mere disappearance of the mechanism created to facilitate the
exercise of the right to warrant the conclusion that the right itself is spent
or extinguished.
There
is a distinction to be made between a liberty enjoyed by all citizens and a
right conferred by a specific legal authority, such as a treaty, to participate
in the same activity. A general right enjoyed by all citizens can be made the
subject of an enforceable treaty promise. Thus the accused need not show
preferential trading rights, but only treaty trading rights. Following the
enactment of the Constitution Act, 1982, the fact the content of Mi'kmaq
rights under the treaty to hunt and fish and trade was no greater than those
enjoyed by other inhabitants does not, unless those rights were extinguished
prior to
The
accused's treaty rights are limited to securing "necessaries" (which
should be construed in the modern context as equivalent to a moderate
livelihood), and do not extend to the open-ended accumulation of wealth. Thus
construed, however, they are treaty rights within the meaning of s. 35 of the
Constitution Act, 1982. The surviving substance of the treaty is not the
literal promise of a truckhouse, but a treaty right to continue to obtain
necessaries through hunting and fishing by trading the products of those
traditional activities subject to restrictions that can be justified under the Badger
test. What is contemplated is not a right to trade generally for economic gain,
but rather a right to trade for necessaries. The treaty right is a regulated
right and can be contained by regulation within its proper limits. Catch limits
that could reasonably be expected to produce a moderate livelihood for
individual Mi'kmaq families at present-day standards can be established by
regulation and enforced without violating the treaty right. Such regulations
would accommodate the treaty right and would not constitute an infringement
that would have to be justified under the Badger standard.
The
accused caught and sold the eels to support himself and his wife. His treaty
right to fish and trade for sustenance was exercisable only at the absolute
discretion of the Minister. Accordingly, the close season and the imposition of
a discretionary licencing system would, if enforced, interfere with the
accused's treaty right to fish for trading purposes, and the ban on sales
would, if enforced, infringe his right to trade for sustenance. In the absence
of any justification of the regulatory prohibitions, the accused is entitled to
an acquittal.
Per
Gonthier and McLachlin JJ. (dissenting): Each treaty must be considered in its
unique historical and cultural context, and extrinsic evidence can be used in
interpreting aboriginal treaties, absent ambiguity. It may be useful to
approach the interpretation of a treaty in two steps. First, the words of the
treaty clause at issue should be examined to determine their facial meaning, in
so far as this can be ascertained, noting any patent ambiguities and
misunderstandings that may have arisen from linguistic and cultural
differences. This exercise will lead to one or more possible interpretations of
the clause. At the second step, the meaning or different meanings which have
arisen from the wording of the treaty right must be considered against the
treaty's historical and cultural backdrop. A consideration of the historical
background may suggest latent ambiguities or alternative interpretations not
detected at first reading.
The treaties of 1760-61 do not grant a general right to trade. The core of the
trade clause is the obligation on the Mi'kmaq to trade only with the British.
Ancillary to this is the implied promise that the British will establish
truckhouses where the Mi'kmaq can trade. These words do not, on their face,
confer a general right to trade. Nor does the historic and cultural context in
which the treaties were made establish such a right. The trial judge was amply
justified in concluding that the Mi'kmaq understood the treaty process as well
as the particular terms of the treaties they were signing. On the historical
record, moreover, neither the Mi'kmaq nor the British intended or understood
the treaty trade clause as creating a general right to trade. To achieve the
mutually desired objective of peace, both parties agreed to make certain
concessions. The Mi'kmaq agreed to forgo their trading autonomy and the general
trading rights they possessed as British subjects, and to abide by the treaty
trade regime. The British, in exchange, undertook to provide the Mi'kmaq with
stable trading outlets where European goods were provided at favourable terms
while the exclusive trade regime existed. Both the Mi'kmaq and the British
understood that the "right to bring" goods to trade was a limited
right contingent on the existence of a system of exclusive trade and
truckhouses. The finding that both parties understood that the treaties granted
a specific, and limited, right to bring goods to truckhouses to trade is
confirmed by the post-treaty conduct of the Mi'kmaq and the British. Soon after
the treaties were entered into, the British stopped insisting that the Mi'kmaq trade
only with them, and replaced the expensive truckhouses with licenced traders in
1762. The system of licenced traders, in turn, died out by the 1780s. The
exclusive trade and truckhouse system was a temporary mechanism to achieve
peace in a troubled region between parties with a long history of hostilities.
When the restriction on the Mi'kmaq trade fell, the need for compensation for
the removal of their trading autonomy fell as well. At this point, the Mi'kmaq
were vested with the general non-treaty right to hunt, to fish and to trade
possessed by all other British subjects in the region. The conditions
supporting the right to bring goods to trade at truckhouses, as agreed to by
both parties, ceased to exist.
It
follows from the trial judge's finding that the "right to bring"
goods to trade at truckhouses died with the exclusive trade obligation upon
which it was premised that the treaties did not grant an independent right to
truckhouses which survived the demise of the exclusive trade system. This right
therefore cannot be relied on in support of an argument of a trade right in the
modern context which would exempt the accused from the application of the
fisheries regulations.
Cases Cited
By Binnie J.
Referred
to: R. v. Denny (1990), 55 C.C.C. (3d) 322; R.
v. Badger, [1996] 1 S.C.R. 771; International Casualty Co. v.
Thomson (1913), 48 S.C.R. 167; R. v. Taylor and Williams (1981), 62
C.C.C. (2d) 227, leave to appeal refused, [1981] 2 S.C.R. xi; Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Sioui, [1990] 1
S.C.R.1025; Guerin v. The Queen, [1984] 2 S.C.R. 335; R.
v. Horse, [1988] 1 S.C.R. 187; Simon
v. The Queen, [1985] 2 S.C.R. 387; R.
v. Sundown, [1999] 1 S.C.R. 393; R.
v. Van der Peet, [1996] 2 S.C.R. 507, aff'g (1993), 80 B.C.L.R. (2d)
75; Jack v. The Queen, [1980] 1 S.C.R. 294; R.
v. Horseman, [1990] 1 S.C.R. 901; R. v. Isaac (1975), 13 N.S.R.
(2d) 460; R. v. Cope (1981), 132 D.L.R. (3d) 36; M.J.B.
Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619;
The "Moorcock" (1889), 14 P.D. 64; Canadian
Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711; The
Case of The Churchwardens of St. Saviour in Southwark (1613), 10 Co. Rep.
66b, 77 E.R. 1025; Roger Earl of Rutland's Case (1608), 8 Co. Rep. 55a,
77 E.R. 555; Sikyea v. The Queen, [1964] S.C.R. 642; R. v. George,
[1966] S.C.R. 267; R.
v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Bombay, [1993] 1
C.N.L.R. 92; Province of Ontario v. Dominion of Canada and Province of
Quebec; In re Indian Claims (1895), 25 S.C.R. 434; Ontario Mining Co. v.
Seybold (1901), 32 S.C.R. 1; R.
v. Gladstone, [1996] 2 S.C.R. 723; R.
v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R.
v. Nikal, [1996] 1 S.C.R. 1013; R.
v. Adams, [1996] 3 S.C.R. 101; R.
v. Côté, [1996] 3 S.C.R. 139.
By McLachlin J.
(dissenting)
R.
v. Sundown, [1999] 1 S.C.R. 393; R.
v. Badger, [1996] 1 S.C.R. 771; R.
v. Sioui, [1990] 1 S.C.R. 1025; Simon
v. The Queen, [1985] 2 S.C.R. 387; R.
v. Horseman, [1990] 1 S.C.R. 901; Nowegijick v. The Queen,
[1983] 1 S.C.R. 29; R.
v. Horse, [1988] 1 S.C.R. 187.
Statutes and Regulations
Cited
Aboriginal Communal
Fishing Licences Regulations, SOR/93-332, s. 4.
Act to prevent any
private Trade or Commerce with the Indians, 34 Geo. II, c. 11.
Constitution Act, 1982, ss. 35(1), 52.
Criminal Code, R.S.C., 1985, c. C-46,
s. 830 [rep. & sub. c. 27 (1st Supp.), s. 182; am. 1991, c. 43, s. 9
(Sch., item 15)].
Fisheries Act, R.S.C., 1985, c. F-14,
s. 7(1).
Fishery (General)
Regulations,
SOR/93-53, s. 35(2).
Mi'kmaq Treaties of
1760-61.
Authors Cited
"As Long as the Sun
and Moon Shall Endure": A Brief History of the Maritime First Nations
Treaties, 1675 to 1783.
Bourgeois, Donald J.
"The Role of the Historian in the Litigation Process", Canadian
Historical Review, LXVII, 2 (June 1986), 195-205.
Daugherty, W. E. Maritime
Indian Treaties in Historical Perspective.
Dickason, Olive Patricia.
"Amerindians Between French and English in
Dickinson, G. M., and R. D.
Gidney. "History and Advocacy: Some Reflections on the Historian's Role in
Litigation", Canadian Historical Review, LXVIII, 4 (December 1987),
576-85.
Fisher, Robin.
"Judging History: Reflections on the Reasons for Judgment in Delgamuukw
v. B.C.", B.C. Studies, XCV (Autumn 1992), 43-54.
Henderson, James [Sákéj]
Youngblood. "Interpreting Sui Generis Treaties" (1997), 36 Alta.
L. Rev. 46.
MacFarlane, R. O.
"Indian Trade in Nova Scotia to 1764", in Report of the Annual
Meeting of the Canadian Historical Association, held at McGill University,
Montreal, May 20-22, 1934, with Historical Papers.
MAWIW District Council and
Indian and Northern Affairs
Ray, Arthur J.
"Creating the Image of the Savage in Defence of the Crown: The
Ethnohistorian in Court", Native Studies Review, VI, 2 (1990),
13-29.
Rotman, Leonard I.
"Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow
Justificatory Test" (1997), 36 Alta. L. Rev. 149.
Stagg, Jack. Anglo-Indian
Relations in
Treitel, G. H. The Law
of Contract, 9th ed.
Upton, Leslie F. S. Micmacs
and Colonists: Indian-White Relations in the Maritimes, 1713-1867.
Waddams, S. M. The Law
of Contracts, 3rd ed.
APPEAL
from a judgment of the Nova Scotia Court of Appeal (1997), 159 N.S.R. (2d) 186,
468 A.P.R. 186, 146 D.L.R. (4th) 257, [1997] 3 C.N.L.R. 209, [1997] N.S.J. No.
131 (QL), affirming a decision of the
Bruce
H. Wildsmith, Q.C., and Eric A. Zscheile, for the appellant.
Michael
A. Paré, Ian MacRae and Gordon Campbell, for the respondent.
Bruce
Judah, Q.C., for the intervener the Attorney General for
A.
William Moreira, Q.C., and Daniel R. Pust, for the intervener
the West Nova Fishermen's Coalition.
D.
Bruce Clarke, for the intervener the Native Council of Nova Scotia.
Henry
J. Bear, for the intervener the Union of New Brunswick Indians.
The
judgment of Lamer C.J. and L'Heureux-Dubé, Cory, Iacobucci and Binnie JJ. was
delivered by
1 BINNIE
J. -- On an August morning six years ago the appellant and a companion, both
Mi'kmaq Indians, slipped their small outboard motorboat into the coastal waters
of
2 On
an earlier August morning, some 235 years previously, the Reverend John
Seycombe of
3 The
trial judge ([1996] N.S.J. No. 246 (QL) (
4 I
would allow this appeal because nothing less would uphold the honour and
integrity of the Crown in its dealings with the Mi'kmaq people to secure their
peace and friendship, as best the content of those treaty promises can now be
ascertained. In reaching this conclusion, I recognize that if the present
dispute had arisen out of a modern commercial transaction between two parties
of relatively equal bargaining power, or if, as held by the courts below, the
short document prepared at Halifax under the direction of Governor Charles
Lawrence on March 10, 1760 was to be taken as being the "entire
agreement" between the parties, it would have to be concluded that the
Mi'kmaq had inadequately protected their interests. However, the courts have
not applied strict rules of interpretation to treaty relationships. In R. v.
Denny (1990), 55 C.C.C. (3d) 322, and earlier decisions cited therein, the
Nova Scotia Court of Appeal has affirmed the Mi'kmaq aboriginal right to fish
for food. The appellant says the treaty allows him to fish for trade. In my
view, the 1760 treaty does affirm the right of the Mi'kmaq people to continue
to provide for their own sustenance by taking the products of their hunting,
fishing and other gathering activities, and trading for what in 1760 was termed
"necessaries". This right was always subject to regulation. The Crown
does not suggest that the regulations in question accommodate the treaty right.
The Crown's case is that no such treaty right exists. Further, no argument was
made that the treaty right was extinguished prior to 1982, and no justification
was offered by the Crown for the several prohibitions at issue in this case.
Accordingly, in my view, the appellant is entitled to an acquittal.
Analysis
5 The
starting point for the analysis of the alleged treaty right must be an
examination of the specific words used in any written memorandum of its terms.
In this case, the task is complicated by the fact the British signed a series
of agreements with individual Mi'kmaq communities in 1760 and 1761 intending to
have them consolidated into a comprehensive Mi'kmaq treaty that was never in
fact brought into existence. The trial judge, Embree Prov. Ct. J., found that
by the end of 1761 all of the Mi'kmaq villages in
Treaty
of Peace and Friendship concluded by [His Excellency Charles Lawrence] Esq.
Govr and Comr. in Chief in and over his Majesty's Province of Nova Scotia or
Accadia with Paul Laurent chief of the LaHave tribe of Indians at Halifax in
the Province of N.S. or Acadia.
I,
Paul Laurent do for myself and the tribe of LaHave Indians of which I am Chief
do acknowledge the jurisdiction and Dominion of His Majesty George the Second
over the Territories of Nova Scotia or Accadia and we do make submission to His
Majesty in the most perfect, ample and solemn manner.
And
I do promise for myself and my tribe that I nor they shall not molest any of
His Majesty's subjects or their dependents, in their settlements already made
or to be hereafter made or in carrying on their Commerce or in any thing
whatever within the Province of His said Majesty or elsewhere and if any
insult, robbery or outrage shall happen to be committed by any of my tribe
satisfaction and restitution shall be made to the person or persons injured.
That
neither I nor any of my tribe shall in any manner entice any of his said
Majesty's troops or soldiers to desert, nor in any manner assist in conveying
them away but on the contrary will do our utmost endeavours to bring them back
to the Company, Regiment, Fort or Garrison to which they shall belong.
That
if any Quarrel or Misunderstanding shall happen between myself and the English
or between them and any of my tribe, neither I, nor they shall take any private
satisfaction or Revenge, but we will apply for redress according to the Laws
established in His said Majesty's Dominions.
That
all English prisoners made by myself or my tribe shall be sett at
And
I do further promise for myself and my tribe that we will not either directly
nor indirectly assist any of the enemies of His most sacred Majesty King George
the Second, his heirs or Successors, nor hold any manner of Commerce traffick
nor intercourse with them, but on the contrary will as much as may be in our
power discover and make known to His Majesty's Governor, any ill designs which
may be formed or contrived against His Majesty's subjects. And I do further
engage that we will not traffick, barter or Exchange any Commodities in any
manner but with such persons or the managers of such Truck houses as shall be
appointed or Established by His Majesty's Governor at Lunenbourg or Elsewhere
in Nova Scotia or Accadia.
And
for the more effectual security of the due performance of this Treaty and every
part thereof I do promise and Engage that a certain number of persons of my
tribe which shall not be less in number than two prisoners shall on or before
September next reside as Hostages at Lunenburg or at such other place or places
in this Province of Nova Scotia or Accadia as shall be appointed for that
purpose by His Majesty's Governor of said Province which Hostages shall be
exchanged for a like number of my tribe when requested.
And
all these foregoing articles and every one of them made with His Excellency C.
L., His Majesty's Governor I do promise for myself and on of sd part -- behalf
of my tribe that we will most strictly keep and observe in the most solemn
manner.
In
witness whereof I have hereunto putt my mark and seal at
Paul
Laurent
I
do accept and agree to all the articles of the forgoing treaty in Faith and
Testimony whereof I have signed these present I have caused my seal to be
hereunto affixed this day of march in the 33 year of His Majesty's Reign and in
the year of Our lord - 1760
Chas
Lawrence [Emphasis added.]
6 The
underlined portion of the document, the so-called "trade clause", is
framed in negative terms as a restraint on the ability of the Mi'kmaq to trade
with non-government individuals. A "truckhouse" was a type of trading
post. The evidence showed that the promised government truckhouses disappeared
from
7 The
appellant's position is that the truckhouse provision not only incorporated the
alleged right to trade, but also the right to pursue traditional hunting,
fishing and gathering activities in support of that trade. It seems clear that
the words of the
8 Although
the agreed statement of facts does not state explicitly that the appellant was
exercising his rights for the purpose of necessaries, the Court was advised in
the course of oral argument that the appellant "was engaged in a
small-scale commercial activity to help subsidize or support himself and his
common-law spouse". The Crown did not dispute this characterization and it
is consistent with the scale of the operation, the amount of money involved,
and the other surrounding facts. If at some point the appellant's trade and
related fishing activities were to extend beyond what is reasonably required
for necessaries, as hereinafter defined, he would be outside treaty protection,
and can expect to be dealt with accordingly.
Evidentiary
Sources
9 The
Court of Appeal took a strict approach to the use of extrinsic evidence when
interpreting the Treaties of 1760-61. Roscoe and Bateman JJ.A. stated at
p. 194: "While treaties must be interpreted in their historical context,
extrinsic evidence cannot be used as an aid to interpretation, in the absence
of ambiguity". I think this approach should be rejected for at least three
reasons.
The parol evidence rule does
not purport to exclude evidence designed to show whether or not the agreement
has been "reduced to writing", or whether it was, or was not, the
intention of the parties that it should be the exclusive record of their
agreement. Proof of this question is a pre-condition to the operation of the
rule, and all relevant evidence is admissible on it. This is the view taken by
Corbin and other writers, and followed in the Second Restatement.
See also International Casualty
Co. v. Thomson (1913), 48 S.C.R. 167, per Idington J., at p.
191, and G. H. Treitel, The Law of Contract (9th ed. 1995), at p. 177.
For an example of a treaty only partly reduced to writing, see R. v. Taylor
and Williams (1981), 62 C.C.C. (2d) 227 (Ont. C.A.) (leave to appeal
dismissed, [1981] 2 S.C.R. xi).
. . . if there is evidence by
conduct or otherwise as to how the parties understood the terms of the treaty,
then such understanding and practice is of assistance in giving content to the
term or terms.
The proposition is cited with
approval in Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010, at para. 87, and R.
v. Sioui, [1990] 1 S.C.R. 1025, at p. 1045.
Nonetheless, the Crown, in my
view, was not empowered by the surrender document to ignore the oral terms
which the Band understood would be embodied in the lease. The oral
representations form the backdrop against which the Crown's conduct in
discharging its fiduciary obligation must be measured. They inform and confine
the field of discretion within which the Crown was free to act. After the
Crown's agents had induced the Band to surrender its land on the understanding
that the land would be leased on certain terms, it would be unconscionable to
permit the Crown simply to ignore those terms.
The Guerin case is a
strong authority in this respect because the surrender there could only be
accepted by the Governor in Council, who was not made aware of any oral terms.
The surrender could not have been accepted by the departmental officials
who were present when the Musqueam made known their conditions. Nevertheless,
the Governor in Council was held bound by the oral terms which "the Band
understood would be embodied in the lease" (p. 388). In this case, unlike Guerin,
the Governor did have authority to bind the Crown and was present when the
aboriginal leaders made known their terms.
13 The
narrow approach applied by the Court of Appeal to the use of extrinsic evidence
apparently derives from the comments of Estey J. in R.
v. Horse, [1988] 1 S.C.R. 187, where, at p. 201, he expressed some
reservations about the use of extrinsic materials, such as the transcript of
negotiations surrounding the signing of Treaty No. 6, except in the case of
ambiguity. (Estey J. went on to consider the extrinsic evidence anyway, at p.
203.) Lamer J., as he then was, mentioned this aspect of Horse in Sioui,
supra, at p. 1049, but advocated a more flexible approach when
determining the existence of treaties. Lamer J. stated, at p. 1068, that
"[t]he historical context, which has been used to demonstrate the
existence of the treaty, may equally assist us in interpreting the extent of
the rights contained in it".
. . . when considering a
treaty, a court must take into account the context in which the treaties were
negotiated, concluded and committed to writing. The treaties, as written
documents, recorded an agreement that had already been reached orally and they
did not always record the full extent of the oral agreement: see Alexander
Morris, The Treaties of Canada with the Indians of Manitoba and the
North-West Territories (1880), at pp. 338-42; Sioui, supra,
at p. 1068; Report of the Aboriginal Justice Inquiry of Manitoba (1991);
Jean Friesen, Grant me Wherewith to Make my Living (1985). The treaties
were drafted in English by representatives of the Canadian government who, it
should be assumed, were familiar with common law doctrines. Yet, the treaties
were not translated in written form into the languages (here Cree and Dene) of
the various Indian nations who were signatories. Even if they had been, it is
unlikely that the Indians, who had a history of communicating only orally,
would have understood them any differently. As a result, it is well settled
that the words in the treaty must not be interpreted in their strict technical
sense nor subjected to rigid modern rules of construction. [Emphasis
added.]
"Generous" rules of
interpretation should not be confused with a vague sense of after-the-fact
largesse. The special rules are dictated by the special difficulties of
ascertaining what in fact was agreed to. The Indian parties did not, for all
practical purposes, have the opportunity to create their own written record of
the negotiations. Certain assumptions are therefore made about the Crown's
approach to treaty making (honourable) which the Court acts upon in its
approach to treaty interpretation (flexible) as to the existence of a treaty (Sioui,
supra, at p. 1049), the completeness of any written record (the use,
e.g., of context and implied terms to make honourable sense of the treaty
arrangement: Simon
v. The Queen, [1985] 2 S.C.R. 387, and R.
v. Sundown, [1999] 1 S.C.R. 393), and the interpretation of treaty
terms once found to exist (Badger). The bottom line is the Court's
obligation is to "choose from among the various possible interpretations
of the common intention [at the time the treaty was made] the one which
best reconciles" the Mi'kmaq interests and those of the British Crown (Sioui,
per Lamer J., at p. 1069 (emphasis added)). In Taylor and Williams,
supra, the Crown conceded that points of oral agreement recorded in
contemporaneous minutes were included in the treaty (p. 230) and the court
concluded that their effect was to "preserve the historic right of these
Indians to hunt and fish on Crown lands" (p. 236). The historical record
in the present case is admittedly less clear-cut, and there is no parallel
concession by the Crown.
The
1752 Mi'kmaq Treaty
It is agreed that the said
Tribe of Indians shall not be hindered from, but have free liberty of Hunting
and 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. [Emphasis added.]
16 It
will be noted that unlike the
There are fishing people who
live along the coastline who encounter countless fishermen, traders, on a
regular basis off their coastline.
The Mi'kmaq, according to the
evidence, had seized in the order of 100 European sailing vessels in the years
prior to 1760. There are recorded Mi'kmaq sailings in the 18th century between
Findings of Fact by the
Trial Judge
18 The
appellant admitted that he did what he was alleged to have done on
In
the case at bar, Scarlett Prov. Ct. J., the trial judge, made findings of fact
based on the testimony and evidence before him, and then proceeded to make a
determination as to whether those findings of fact supported the appellant's
claim to the existence of an aboriginal right. The second stage of Scarlett
Prov. Ct. J.'s analysis -- his determination of the scope of the appellant's
aboriginal rights on the basis of the facts as he found them -- is a
determination of a question of law which, as such, mandates no deference from
this Court. The first stage of Scarlett Prov. Ct. J.'s analysis, however -- the
findings of fact from which that legal inference was drawn -- do mandate such
deference and should not be overturned unless made on the basis of a
"palpable and overriding error".
I accept as inherent in these
treaties that the British recognized and accepted the existing Mi'kmaq way of
life. Moreover, it's my conclusion that the British would have wanted the
Mi'kmaq to continue their hunting, fishing and gathering lifestyle. The British
did not want the Mi'kmaq to become a long-term burden on the public treasury
although they did seem prepared to tolerate certain losses in their trade with
the Mi'kmaq for the purpose of securing and maintaining their friendship and
discouraging their future trade with the French. I am satisfied that this
trade clause in the 1760-61 Treaties gave the Mi'kmaq the right to bring the
products of their hunting, fishing and gathering to a truckhouse to trade.
[Emphasis added.]
The treaty document of
The written treaties with the
Mi'kmaq in 1760 and 1761 which are before me contain, and fairly represent, all
the promises made and all the terms and conditions mutually agreed to.
It was, after all, the
aboriginal leaders who asked for truckhouses "for the furnishing them with
necessaries, in Exchange for their Peltry" in response to the Governor's
inquiry "Whether they were directed by their Tribes, to propose any other
particulars to be Treated upon at this Time". It cannot be supposed that
the Mi'kmaq raised the subject of trade concessions merely for the purpose of
subjecting themselves to a trade restriction. As the Crown acknowledges in its
factum, "The restrictive nature of the truckhouse clause was British in
origin". The trial judge's view that the treaty obligations are all found
within the four corners of the March 10, 1760 document, albeit generously
interpreted, erred in law by failing to give adequate weight to the concerns
and perspective of the Mi'kmaq people, despite the recorded history of the
negotiations, and by giving excessive weight to the concerns and perspective of
the British, who held the pen. (See Badger, at para. 41, and Sioui,
at p. 1036.) The need to give balanced weight to the aboriginal
perspective is equally applied in aboriginal rights cases: Van der Peet,
at paras. 49-50; Delgamuukw, at para. 81.
20 While
the trial judge drew positive implications from the negative trade clause
(reversed on this point by the Court of Appeal), such limited relief is
inadequate where the British-drafted treaty document does not accord with the
British-drafted minutes of the negotiating sessions and more favourable terms
are evident from the other documents and evidence the trial judge regarded as
reliable. Such an overly deferential attitude to the
21 The
Court of Appeal, with respect, compounded the errors of law. It not only read
the Mi'kmaq "right", such as it was, out of the trial judgment, it
also took the view, at p. 204, that the principles of interpretation of
Indian treaties developed in connection with land cessions are of "limited
specific assistance" to treaties of peace and friendship where "the
significant `commodity' exchanged was mutual promises of peace". While it
is true that there is no applicable land cession treaty in
The 1760 Negotiations
(i) The Documentary Record
1 The
1760-61 treaties were the culmination of more than a decade of intermittent
hostilities between the British and the Mi'kmaq. Hostilities with the French
were also prevalent in
2 The
use of firearms for hunting had an important impact on Mi'kmaq society. The
Mi'kmaq remained dependant on others for gun powder and the primary sources of
that were the French, Acadians and the British.
3 The
French frequently supplied the Mi'kmaq with food and European trade goods. By
the mid-18th century, the Mi'kmaq were accustomed to, and in some cases relied
on, receiving various European trade goods [including shot, gun powder, metal
tools, clothing cloth, blankets and many other things].
.
. .
6 The
British wanted peace and a safe environment for their current and future
settlers. Despite their recent victories, they did not feel completely secure
in
. . . my Reverend Father, It
is necessary that I make known to you that your Capital Quebec has fallen to
the arms of the King, my master, your armies are in flight, thus if you and
your people are so reckless to continue [this war] without justification, it is
certain that you will perish by starvation since you have no other assistance.
So you, My Reverend Father,
would do well to accept the olive branches that I send to you and to put me in
possession of the vessels that your people took from me and return them all to
me, I am commanded to assure you by His Majesty that you will enjoy all your
possessions, your liberty, property with the free exercise of your religion as
you can see by the declaration that I have the honour of sending you.
[Emphasis added.]
25 In
the harsh winter of 1759-1760, so many Mi'kmaq turned up at Louisbourg seeking
sustenance that the British Commander expressed concern that unless their
demand for necessaries was met, they would become "very Troublesome"
and "entirely putt a Stop to any Settling or fishing all along the
Coast" or indeed "the Settlement of Nova Scotia" generally. This
is stated in the dispatch from the Governor at Louisbourg, Brigadier-General
Edward Whitmore to General Jeffrey Amherst, based in
I acquainted you in some of my
Letters in December [1759] and January [1760] last that the Indians were Come
in, and that they had agreed to live with us upon a footing of Friendship.
Accordingly Several of their Chiefs came in here and articles were agreed on
and Signed by Them and Me in Form. On which Occassion as They pleaded they were
Naked and Starving I Cloathed Them and gave Them Some Presents of Provisions
etc. Afterwards Several Others came in to whom I was Obliged to do the like.
And at this time the Chief of the Island is here who beside some Cloathing
makes a demand of Powder, Shott, and Arms for four men, which if I would Remain
in Peace with Them I find I must Comply with. They Say the French always
Supplyed Them with these Things and They expect that we will do the Same. I can
fore See that this will be a Constant annual Expence, and therefore I should be
glad to have Your Directions both for my own Satisfaction and as a Rule to
whoever may be left to Command here when I am Called away. Its Certain unless
They are keep'd Quiet They might be very Troublesome to this Town with only a
Small Garrison in it, and would entirely putt a Stop to any Settling or fishing
all along the Coast, and which is yet of greater Consequence might much disturb
and hinder the Settlement of Nova Scotia as They are so near to the back
Settlements of that Province.
(Dispatch dated
It is apparent that the
British saw the Mi'kmaq trade issue in terms of peace, as the Crown expert Dr.
Stephen Patterson testified, "people who trade together do not fight, that
was the theory". Peace was bound up with the ability of the Mi'kmaq people
to sustain themselves economically. Starvation breeds discontent. The British
certainly did not want the Mi'kmaq to become an unnecessary drain on the public
purse of the colony of
What is plain from the pre-Confederation
period is that the Indian fishermen were encouraged to engage in their
occupation and to do so for both food and barter purposes.
The same strategy of economic
aboriginal self-sufficiency was pursued across the prairies in terms of hunting:
see R.
v. Horseman, [1990] 1 S.C.R. 901, per Wilson J., at p. 919, and
Cory J., at p. 928.
26 The
trial judge concluded that in 1760 the British Crown entered into a series of
negotiations with communities of first nations spread across what is now
28 The
trial judge found (at para. 101) that on
His Excellency then Ordered
the Several Articles of the Treaty made with the Indians of St. John's River
and Passamaquody to be Communicated to the said Paul Laurent and Michel
Augustine who expressed their satisfaction therewith, and declar'd that all
the Tribe of Mickmacks would be glad to make peace upon the same
Conditions. [Emphasis added.]
Governor Lawrence afterwards
confirmed, in his
29 The
genesis of the Mi'kmaq trade clause is therefore found in the Governor's
earlier negotiations with the Maliseet and Passamaquody First Nations. In that
regard, the appellant places great reliance on a meeting between the Governor
and their chiefs on
His Excellency then demanded
of them, Whether they were directed by their Tribes, to propose any other
particulars to be Treated upon at this time. To which they replied that their
Tribes had not directed them to propose any thing further than that there
might be a Truckhouse established, for the furnishing them with necessaries, in
Exchange for their Peltry, and that it might, at present, be at
Upon which His Excellency
acquainted them that in case of their now executing a Treaty in the
manner proposed, and its being ratified at the next General Meeting of their
Tribes the next Spring, a Truckhouse should be established at Fort
Frederick, agreable to their desire, and likewise at other Places if it
should be found necessary, for furnishing them with such Commodities as shall
be necessary for them, in Exchange for their Peltry & and that great care
should be taken, that the Commerce at the said Truckhouses should be managed by
Persons on whose Justice and good Treatment, they might always depend; and that
it would be expected that the said Tribes should not Trafic or Barter and
Exchange any Commodities at any other Place, nor with any other Persons. Of
all which the Chiefs expressed their entire Approbation. [Emphasis added.]
31 At
a meeting of the Governor's Council on February 16, 1760 (less than a week
later), the Council and the representatives of the Indians proceeded to settle
the prices of various articles of merchandise including beaver, marten, otter,
mink, fox, moose, deer, ermine and bird feathers, etc. Prices of
"necessaries" for purchase at the truckhouse were also agreed, e.g.,
one pound of spring beaver could purchase 30 pounds of flour or 14 pounds of
pork. The British took a liberal view of "necessaries". Two gallons
of rum cost one pound of spring beaver pelts. The oral agreement on a price
list was reflected in an Order in Council dated
32 In
furtherance of this trade arrangement, the British established six truckhouses
following the signing of the treaties in 1760 and 1761, including Chignecto,
Lunenburg, St. John, Windsor, Annapolis and "the Eastern Battery"
along the coast from Halifax. The existence of advantageous terms at the
truckhouses was part of an imperial peace strategy. As Governor Lawrence wrote
to the Board of Trade on
33 Accordingly,
on March 21, 1760, the Nova Scotia House of Assembly passed An Act to
prevent any private Trade or Commerce with the Indians, 34 Geo. II, c. 11.
In July 1761, however, the "Lords of Trade and
. . . the first Indian
commissary,
(ii) The Expert Evidence
Q.I guess it's fair to say
that the British would have understood that the Micmac lived and survived by
hunting and fishing and gathering activities.
A.Yes, of course.
Q.And that in this time
period, 1760 and `61, fish would be amongst the items they would have to trade.
And they would have the right under this treaty to bring fish and feathers and
furs into a truckhouse in exchange for commodities that were available.
A.Well, it's not mentioned but
it's not excluded. So I think it's fair to assume that it was permissible.
Q.Okay. It's fair to say that
it's an assumption on which the trade truckhouse clause is based.
A.That the truckhouse clause
is based on the assumption that natives will have a variety of things to
trade, some of which are mentioned and some not. Yes, I think that's fair.
Q.Yes. And wouldn't be out of
line to call that a right to fish and a right to bring the fish or furs or
feathers or fowl or venison or whatever they might have, into the truckhouses
to trade.
A.Ah, a right. I think
the implication here is that there is a right to trade under a certain
form of regulation --
Q.Yes.
A.-- that's laid down. And if
you're saying right to fish, I've assumed that in recognizing the Micmac
by treaty, the British were recognizing them as the people they were. They
understood how they lived and that that meant that those people had a right
to live in
It seems to me that that's
implicit in the thing. Even though it doesn't say it, and I know that there
seems to, in the 20th century, be some reluctance to see the value of the 1760
and 1761 treaties because they're not so explicit on these matters, but I
personally don't see the hang-up. Because it strikes me that there is a
recognition that the Micmac are a people and they have the right to exist. And
that has -- carries certain implications with it.
More than this, the very fact
that there is a truckhouse and that the truckhouse does list some of the things
that natives are expected to trade, implies that the British are condoning or
recognizing that this is the way that natives live. They do live by hunting
and, therefore, this is the produce of their hunting. They have the right
to trade it.
Q.And you have, in fact, said
that in your
A.That's correct.
Q.Yeah. And you testified to
that effect in the Pelletier case, as well.
A.Well, my understanding of
this issue, Mr. Wildsmith, has developed and grown with my close reading of the
material. It's the position that I come to accept as being a reasonable
interpretation of what is here in these documents. [Emphasis added.]
Ascertaining the Terms of
the Treaty
42 I
mentioned earlier that the Nova Scotia Court of Appeal has held on several
occasions that the "peace and friendship" treaties with the Mi'kmaq
did not extinguish aboriginal hunting and fishing rights in Nova Scotia: R.
v. Isaac (1975), 13 N.S.R. (2d) 460, R. v. Cope (1981), 132 D.L.R.
(3d) 36, Denny, supra. We are not here concerned with the
exercise of such a right. The appellant asserts the right of Mi'kmaq people to
catch fish and wildlife in support of trade as an alternative or
supplementary method of obtaining necessaries. The right to fish is not
mentioned in the
43 The
law has long recognized that parties make assumptions when they enter into
agreements about certain things that give their arrangements efficacy. Courts
will imply a contractual term on the basis of presumed intentions of the
parties where it is necessary to assure the efficacy of the contract, e.g.,
where it meets the "officious bystander test": M.J.B.
Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619,
at para. 30. (See also: The "Moorcock" (1889), 14 P.D. 64; Canadian
Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711; and see
generally: Waddams, supra, at para. 490; Treitel, supra, at pp.
190-94.) Here, if the ubiquitous officious bystander had said, "This talk
about truckhouses is all very well, but if the Mi'kmaq are to make these
promises, will they have the right to hunt and fish to catch something to trade
at the truckhouses?", the answer would have to be, having regard to the
honour of the Crown, "of course". If the law is prepared to supply
the deficiencies of written contracts prepared by sophisticated parties and
their legal advisors in order to produce a sensible result that accords with
the intent of both parties, though unexpressed, the law cannot ask less of the
honour and dignity of the Crown in its dealings with First Nations. The honour
of the Crown was, in fact, specifically invoked by courts in the early 17th
century to ensure that a Crown grant was effective to accomplish its intended
purpose: The Case of The Churchwardens of St. Saviour in Southwark
(1613), 10 Co. Rep. 66b, 77 E.R. 1025, at p. 67b and p. 1026, and Roger
Earl of Rutland's Case (1608), 8 Co. Rep. 55a, 77 E.R. 555, at p. 56b
and pp. 557-58.
The treaty gives the Hurons
the freedom to carry on their customs and their religion. No mention is made in
the treaty itself of the territory over which these rights may be exercised.
There is also no indication that the territory of what is now Jacques-Cartier
park was contemplated. However, for a freedom to have real value and meaning,
it must be possible to exercise it somewhere. [Emphasis added.]
Similarly, in Sundown, supra,
the Court found that the express right to hunt included the implied right to
build shelters required to carry out the hunt. See also Simon, supra,
where the Court recognized an implied right to carry a gun and ammunition on
the way to exercise the right to hunt. These cases employed the concept of
implied rights to support the meaningful exercise of express rights granted to
the first nations in circumstances where no such implication might necessarily
have been made absent the sui generis nature of the Crown's relationship
to aboriginal people. While I do not believe that in ordinary commercial
situations a right to trade implies any right of access to things to trade, I
think the honour of the Crown requires nothing less in attempting to make sense
of the result of these 1760 negotiations.
Rights of the Other
Inhabitants
47 The
Crown objects strongly to any suggestion that the treaty conferred "preferential
trading rights". I do not think the appellant needs to show preferential
trading rights. He only has to show treaty trading rights. The settlers
and the military undoubtedly hunted and fished for sport or necessaries as
well, and traded goods with each other. The issue here is not so much the
content of the rights or liberties as the level of legal protection thrown
around them. A treaty could, to take a fanciful example, provide for a right of
the Mi'kmaq to promenade down
The Laws will be like a great
Hedge about your Rights and properties, if any break this Hedge to hurt and
injure you, the heavy weight of the Laws will fall upon them and punish their
Disobedience.
48 Until
enactment of the Constitution Act, 1982, the treaty rights of aboriginal
peoples could be overridden by competent legislation as easily as could the
rights and liberties of other inhabitants. The hedge offered no special
protection, as the aboriginal people learned in earlier hunting cases such as
Sikyea v. The Queen, [1964] S.C.R. 642, and R. v. George, [1966]
S.C.R. 267. On April 17, 1982, however, this particular type of
"hedge" was converted by s. 35(1) into sterner stuff that could only
be broken down when justified according to the test laid down in R.
v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1112 et seq., as
adapted to apply to treaties in Badger, supra, per Cory
J., at paras. 75 et seq. See also R. v. Bombay, [1993] 1 C.N.L.R.
92 (Ont.
The
Honour of the Crown
. . . the honour of the Crown
is always at stake in its dealings with Indian people. Interpretations of
treaties and statutory provisions which have an impact upon treaty or
aboriginal rights must be approached in a manner which maintains the integrity
of the Crown. It is always assumed that the Crown intends to fulfil its
promises. No appearance of "sharp dealing" will be sanctioned.
. . . what is contended for
and must not be lost sight of, is that the British sovereigns, ever since the
acquisition of Canada, have been pleased to adopt the rule or practice of entering
into agreements with the Indian nations or tribes in their province of Canada,
for the cession or surrender by them of what such sovereigns have been pleased
to designate the Indian title, by instruments similar to these now under
consideration to which they have been pleased to give the designation of
"treaties" with the Indians in possession of and claiming title to
the lands expressed to be surrendered by the instruments, and further that the
terms and conditions expressed in those instruments as to be performed by or on
behalf of the Crown, have always been regarded as involving a trust graciously
assumed by the Crown to the fulfilment of which with the Indians the faith and
honour of the Crown is pledged, and which trust has always been most faithfully
fulfilled as a treaty obligation of the Crown. [Emphasis added.]
See also Ontario Mining Co.
v. Seybold (1901), 32 S.C.R. 1, at p. 2.
The principles to be applied
to the interpretation of Indian treaties have been much canvassed over the
years. In approaching the terms of a treaty quite apart from the other
considerations already noted, the honour of the Crown is always involved and no
appearance of "sharp dealing" should be sanctioned. Mr. Justice
Cartwright emphasized this in his dissenting reasons in R. v. George, .
. . [1966] S.C.R. 267 at p. 279, where he said:
We should, I think, endeavour
to construe the treaty of 1827 and those Acts of Parliament which bear upon the
question before us in such a manner that the honour of the Sovereign may be
upheld and Parliament not made subject to the reproach of having taken away by
unilateral action and without consideration the rights solemnly assured to the
Indians and their posterity by treaty.
Further, if there is any
ambiguity in the words or phrases used, not only should the words be
interpreted as against the framers or drafters of such treaties, but such
language should not be interpreted or construed to the prejudice of the Indians
if another construction is reasonably possible: R. v. White and Bob
(1964), 50 D.L.R. (2d) 613 at p. 652 . . . (B.C.C.A.); affirmed . . . [1965]
S.C.R. vi. . . .
This statement by MacKinnon
A.C.J.O. (who had acted as counsel for the native person convicted of hunting
offences in George, supra) has been adopted subsequently in
numerous cases, including decisions of this Court in Badger, supra,
para. 41, and Sparrow, supra, at pp. 1107-8.
Contradictory
Interpretations of the Truckhouse Clause
The Limited Scope of the
Treaty Right
57 The
Crown expresses the concern that recognition of the existence of a
constitutionally entrenched right with, as here, a trading aspect, would open
the floodgates to uncontrollable and excessive exploitation of the natural
resources. Whereas hunting and fishing for food naturally restricts quantities
to the needs and appetites of those entitled to share in the harvest, it is
argued that there is no comparable, built-in restriction associated with a
trading right, short of the paramount need to conserve the resource. The Court
has already addressed this issue in R.
v. Gladstone, [1996] 2 S.C.R. 723, per Lamer C.J., at paras. 57-63,
L'Heureux-Dubé J., at para. 137, and McLachlin J., at para. 164; Van der
Peet, supra, per L'Heureux-Dubé J., at para. 192, and per
McLachlin J., at para. 279; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672, per
L'Heureux-Dubé J., at para. 47; and Horseman, supra, per Wilson J., at p. 908,
and Cory J., at pp. 928-29. The ultimate fear is that the appellant, who in
this case fished for eels from a small boat using a fyke net, could lever the
treaty right into a factory trawler in
58 The
recorded note of
59 The
concept of "necessaries" is today equivalent to the concept of what
Lambert J.A., in R. v. Van der Peet (1993), 80 B.C.L.R. (2d) 75, at
p. 126, described as a "moderate livelihood". Bare subsistence
has thankfully receded over the last couple of centuries as an appropriate
standard of life for aboriginals and non-aboriginals alike. A moderate
livelihood includes such basics as "food, clothing and housing,
supplemented by a few amenities", but not the accumulation of wealth (
Despite the large quantities
of herring spawn on kelp traditionally traded, the evidence does not indicate
that the trade of herring spawn on kelp provided for the Heiltsuk anything more
than basic sustenance. There is no evidence in this case that the Heiltsuk
accumulated wealth which would exceed a sustenance lifestyle from the herring
spawn on kelp fishery. [Emphasis added.]
In this case, equally, it is
not suggested that Mi'kmaq trade historically generated "wealth which
would exceed a sustenance lifestyle". Nor would anything more have been
contemplated by the parties in 1760.
Application to the Facts of
this Case
62 The
appellant is charged with three offences: the selling of eels without a
licence, fishing without a licence and fishing during the close season with
illegal nets. These acts took place at
7. (1) Subject to
subsection (2), the Minister may, in his absolute discretion, wherever
the exclusive right of fishing does not already exist by law, issue or
authorize to be issued leases and licences for fisheries or fishing, wherever
situated or carried on. [Emphasis added.]
The Maritime Provinces
Fishery Regulations provides that the Minister "may issue" a
commercial fishing licence (s. 5). The Aboriginal Communal Fishing Licences
Regulations state as well that the Minister "may issue" a
communal licence to an aboriginal organization to carry on food fishing and
related activities (s. 4). The licences described in the Fishery (General)
Regulations are all discretionary as well, although none of those licences
would have assisted the appellant in this situation.
64 Furthermore,
there is nothing in these regulations which gives direction to the Minister to
explain how she or he should exercise this discretionary authority in a manner
which would respect the appellant's treaty rights. This Court has had the opportunity
to review the effect of discretionary licensing schemes on aboriginal and
treaty rights: Badger, supra, R.
v. Nikal, [1996] 1 S.C.R. 1013, R.
v. Adams, [1996] 3 S.C.R. 101, and R.
v. Côté, [1996] 3 S.C.R. 139. The test for infringement under s. 35(1)
of the Constitution Act, 1982 was set out in Sparrow, supra,
at p. 1112:
To
determine whether the fishing rights have been interfered with such as to
constitute a prima facie infringement of s. 35(1), certain questions
must be asked. First, is the limitation unreasonable? Second, does the
regulation impose undue hardship? Third, does the regulation deny to the
holders of the right their preferred means of exercising that right? The onus
of proving a prima facie infringement lies on the individual or group
challenging the legislation.
Lamer
C.J. in
In
light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament
may not simply adopt an unstructured discretionary administrative regime which
risks infringing aboriginal rights in a substantial number of applications in
the absence of some explicit guidance. If a statute confers an
administrative discretion which may carry significant consequences for the
exercise of an aboriginal right, the statute or its delegate regulations must
outline specific criteria for the granting or refusal of that discretion which
seek to accommodate the existence of aboriginal rights. In the absence of such
specific guidance, the statute will fail to provide representatives of the
Crown with sufficient directives to fulfil their fiduciary duties, and the
statute will be found to represent an infringement of aboriginal rights under
the Sparrow test. [Emphasis added.]
Cory
J. in Badger, supra, at para. 79, found that the test for
infringement under s. 35(1) of the Constitution Act, 1982 was the same
for both aboriginal and treaty rights, and thus the words of Lamer C.J. in
65 Further,
the appellant was charged with fishing during the close season with improper
nets, contrary to s. 20 of the
Disposition
67 The
constitutional question stated by the Chief Justice on
Are the prohibitions on
catching and retaining fish without a licence, on fishing during the close
time, and on the unlicensed sale of fish, contained in ss. 4(1)(a) and
20 of the Maritime Provinces Fishery Regulations and s. 35(2) of the Fishery
(General) Regulations, inconsistent with the treaty rights of the appellant
contained in the Mi'kmaq Treaties of 1760-61 and therefore of no force or
effect or application to him, by virtue of ss. 35(1) and 52 of the Constitution
Act, 1982?
should be answered in the
affirmative. I would therefore allow the appeal and order an acquittal on all
charges.
The reasons of Gonthier and
McLachlin JJ. were delivered by
MCLACHLIN J. (dissenting) --
I.Introduction
II.Relevant Treaty and Constitutional
Provisions
71 Trade
Clause in Treaties of 1760-61
And I do further engage that
we will not traffick, barter or Exchange any Commodities in any manner but with
such persons or the managers of such Truck houses as shall be appointed or
Established by His Majesty's Governor at [insert location of closest truck
house] or Elsewhere in
Constitution Act, 1982
35. (1) The existing
aboriginal and treaty rights of the aboriginal peoples of
III.Judgments
It was a pre-requisite to the
Mi'kmaq being able to trade under the terms of the trade clause that the
British provide truckhouses or appoint persons to trade with. When the British
stopped doing that, the requirement (or if I had taken the Defence view, the
option) to trade with truckhouses or licensed traders disappeared. The trade
clause says nothing about that eventuality and it is my view that no further
trade right arises from the trade clause.
IV.The Issues
A.The Rights Claimed
1 The
treaties conferred on the Mi'kmaq a general right to trade.
2 Alternatively,
or in addition, the treaties conferred on the Mi'kmaq a right to truckhouses or
licensed traders.
B.Justification
Arguments
1 In
the event a general right to trade is established, the federal fisheries
legislation governing fishing and trade in fish fails to accommodate this
treaty right to trade.
2 The
government has not shown that this failure is justified as required by s. 35 of
the Constitution Act, 1982.
3 Therefore
the federal fisheries legislation does not apply to the appellant and he is
entitled to be acquitted.
Alternatively,
or in addition:
1 In
the event a right to truckhouses or licensed traders is established, the
government has been in breach of its treaty obligations since the 1780s.
2 The
government has not shown that this infringement is justified as required by s.
35 of the Constitution Act, 1982.
3 Therefore
the federal fisheries legislation does not apply to the appellant and he is
entitled to be acquitted.
V.Discussion
A.What Principles of
Interpretation Apply to the Interpretation of the Treaty Trade Clause?
1 Aboriginal
treaties constitute a unique type of agreement and attract special principles
of interpretation: R. v. Sundown, [1999] 1 S.C.R 393, at para. 24; R.
v. Badger, [1996] 1 S.C.R. 771, at para. 78; R.
v. Sioui, [1990] 1 S.C.R. 1025, at p. 1043; Simon
v. The Queen, [1985] 2 S.C.R. 387, at p. 404. See also: J. [Sákéj]
Youngblood Henderson, "Interpreting Sui Generis Treaties"
(1997), 36 Alta. L. Rev. 46; L. I. Rotman, "Defining Parameters:
Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory
Test" (1997), 36 Alta. L. Rev. 149.
5 In
determining the signatories' respective understanding and intentions, the court
must be sensitive to the unique cultural and linguistic differences between the
parties: Badger, supra, at paras. 52-54; R.
v. Horseman, [1990] 1 S.C.R. 901, at p. 907.
81 The
second issue of interpretation raised on this appeal is whether extrinsic
evidence can be used in interpreting aboriginal treaties, absent ambiguity.
Again, the principle that every treaty must be understood in its historical and
cultural context suggests the answer must be yes. It is true that in R.
v. Horse, [1988] 1 S.C.R. 187, at p. 201, this Court alluded with
approval to the strict contract rule that extrinsic evidence is not admissible
to construe a contract in the absence of ambiguity. However, subsequent
decisions have made it clear that extrinsic evidence of the historic and
cultural context of a treaty may be received absent ambiguity: Sundown, supra,
at para. 25; Badger, supra, at para. 52. As Cory J. wrote in Badger,
supra, at para. 52, courts interpreting treaties "must take into
account the context in which the treaties were negotiated, concluded and
committed to writing".
With the full benefit of the
cultural and historical context, I now need to address the following questions.
What did the Mi'kmaq and the British agree to and intend to agree to in the
Treaties of 1760 and 1761? Directly related to that are the questions of Mi'kmaq
understanding of these treaties' contents. Did they understand and agree to all
of the written portions of the treaties before me? Were there other statements
or promises made orally which the Mi'kmaq considered were part of these
treaties and which have an impact on their meaning? Did the Mi'kmaq consider
that previous treaties were renewed by and combined with the 1760-61 Treaties?
Are there any other aspects of the historical record, whether referred to me by
Counsel for the defendant or otherwise, which reflect on the contents or the
proper understanding of the contents of these treaties?
The trial judge's review of
the historical context, the cultural differences between the parties, their
different methods of communication, and the pre-treaty negotiations, led him to
conclude that there was no misunderstanding or lack of agreement between the
British and the Mi'kmaq that trade under the treaties was to be carried out in
accordance with the terms of the trade clause. Having come to this conclusion,
the trial judge turned again to the historical context to interpret the content
of such terms, in accordance with the parties' common intention. In my opinion,
the trial judge's approach to the interpretation of the Treaties of 1760-61 is
in keeping with the principles governing treaty interpretation. With the
greatest respect for the contrary view of my colleague, Justice Binnie, I find
no basis for error in the trial judge's approach.
B.Do the Treaties of
1760-61 Grant a General Right to Trade?
86 Before
addressing whether the words of the treaties, taken in their historic and
cultural context support a general treaty right to trade, it is necessary to
distinguish between a right to trade under the law applicable to all citizens,
and a treaty right to trade. All inhabitants of the province of
(1) The Wording of the
Trade Clause
The clause is short, the words
simple. The Mi'kmaq covenant that they will "not traffick, barter
or Exchange any Commodities in any manner but with [British
agents]" (emphasis added). The core of this clause is the obligation on
the Mi'kmaq to trade only with the British. Ancillary to this is the implied
promise that the British will establish truckhouses where the Mi'kmaq can
trade. These words do not, on their face, confer a general right to trade.
(2) Cultural and Linguistic
Considerations
(3) The Historical Context
and the Scope of the Trade Clause
93 The
desire to establish a secure and successful peace led each party to make
significant concessions. The Mi'kmaq accepted that forging a peaceful
relationship with the British was essential to ensuring continued access to
European trade goods and to their continued security in the region. To this
end, the Mi'kmaq agreed to limit their autonomy by trading only with the
British and ceasing all trading relations with the French. Agreeing to
restricted trade at truckhouses made the limit on Mi'kmaq autonomy more
palatable as truckhouses were recognized as vehicles for stable trade at
guaranteed and favourable terms. See: O. P. Dickason, "Amerindians Between
French and English in
94 The
British, for their part, saw continued relations between the Mi'kmaq and the
French as a threat to British dominance in the region and to British-Mi'kmaq
relations. Although the fall of the French in 1760 established British power in
the region, the trial judge concluded, at para. 90, that the British "did
not feel completely secure in
97 The
parties' pre-treaty negotiations and post-treaty conduct point to the same
conclusion. I turn first to the pre-treaty negotiations. British negotiations
with the Mi'kmaq took place against the background of earlier negotiations with
the Maliseet and Passamaquody on
. . . that it was now expected
that they should engage, in behalf of their Tribes, that they will not aid or
assist any of His Majesty's Enemies, nor hold any Correspondence or Commerce
with them.
The Maliseet and Passamaquody
consented to this term of trade exclusivity. After some discussion about
"hostages" the following exchange took place:
His Excellency then demanded
of them, Whether they were directed by their Tribes, to propose any other
particulars to be Treated upon at this Time. To which they replied that their
Tribes had not directed them to propose any thing further than that there might
be a Truckhouse established, for the furnishing them with necessaries, in
Exchange for their Peltry, and that it might, at present, be at
Upon which His Excellency
acquainted them that in case of their now executing a Treaty in the manner
proposed, and its being ratified at the next General Meeting of their Tribes
the next Spring, a Truckhouse should be established at Fort Frederick, agreable
to their desire, and likewise at other Places if it should be found necessary,
for furnishing them with such Commodities as shall be necessary for them, in
Exchange for their Peltry & and that great care should be taken, that the
Commerce at the said Truckhouses should be managed by Persons on whose Justice
and good Treatment, they might always depend; and that it would be expected
that the said Tribes should not Trafic or Barter and Exchange any Commodities
at any other Place, nor with any other Persons. Of all which the Chiefs
expressed their entire Approbation. [
99 This
finding is confirmed by the post-treaty conduct of the Mi'kmaq and the British.
Neither party's conduct is consistent with an expectation that the treaty
granted the Mi'kmaq any trade right except the implied "right to
bring" incidental to their obligation to trade exclusively with the
British. Soon after the treaties were entered into, the British stopped
insisting that the Mi'kmaq trade only with them. The British replaced the expensive
truckhouses with licensed traders in 1762. The system of licensed traders, in
turn, died out by the 1780s. Mi'kmaq adherence to the exclusive trade and
truckhouse regime was also ambiguous. Records exist of Mi'kmaq trade with the
French on the islands of
Chiefs9.
We shall be glad that the
Prices of Goods were regulated, as formerly, for Beaver skins were Sold at a
better price than some people will now give for them.
Answer
There is no Restriction on
your Trade you may Traffick with those who sell Cheapest, which will be more
for your Interest than limitting the Price of Beaver.
(
(4) The Argument on the
Treaty of 1752
C.Do the Treaties of
1760-61 Grant a Right to Government Trading Outlets?
VI.Justification
VII.Conclusion
Appeal allowed,
GONTHIER and MCLACHLIN JJ. dissenting.
Solicitor for the
appellant: Bruce H. Wildsmith,
Solicitor for the
respondent: The Attorney General of
Solicitor for the
intervener the Attorney General for
Solicitors for the
intervener the West Nova Fishermen's Coalition: Daley, Black & Moreira,
Halifax.
Solicitors for the
intervener the Native Council of
Solicitors for the
intervener the