R. v. George

Supreme Court of Canada – [1966] S.C.R. 267

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Ontario Aboriginal rightsIndian ActTreaties

Issue

Does the Treaty of 1827 subtracted Chippewa Indians from the application of the Migratory Birds Convention Act?

Decision

No, because the Indian Act was not meant to declare the paramountcy of treaties over federal legislation (6 against 1).

Parties

Between: the Crown

And: Calvin William George

Facts

In 1827, the Chippewa Indians signed a treaty with the British Crown. In return for their lands, it gave them the right to hunt all year long for food on the lands reserved for them.

In 1962, George is a resident of the Kettle Point Reserve and a status Indian member of the Chippewa Band. He shot two migratory birds (ducks) out of the open season for his subsistence. This was an act prohibited by the regulations of the Migratory Birds Convention Act. He was then charged under the Migratory Bird Regulations.

Arguments

George: The terms of the Treaty signed in 1827 subtracted him from the application of the Act, preventing him to being charged for the offense.

The Crown: Section 87 of the Indian Act was intended to render only provincial laws applicable to the Indians unless contrary to federal legislation.

Decision of the lower courts

Ontario High Court (1963): The Treaty of 1827 gave the Indians an “overlying interest” in the land that cannot be discarded by general acts of Parliament. The Crown’s action is dismissed.

Ontario Court of Appeal (1964): The Royal Proclamation of 1763 gave the Indians the right to use the lands reserved for them by the Crown as their hunting territory. Since section 87 of the Indian Act prescribes that the laws of Canada apply to Indians unless a Treaty stipulates otherwise, George is not subject to the Migratory Birds Convention Act and its regulations. The dissenting judge saw that the Treaty of 1827 did not concern in any way the Chippewas’ hunting and fishing rights. Therefore the Migratory Birds Act is in force on the Kettle Point Reserve, accordingly to section 87 of the Indian Act.

Reasons for Judgement

Jury

Fauteux, Abbott, Martland, Judson, Ritchie, Hall

Reason

There is no need to distinguish this case from Sikyea. Section 87 of the Indian Act makes only the provincial laws of general application conditional on the terms of treaties and Acts of Parliament applicable to Indians in the Province. The provision can not be interpreted as making federal laws like the Migratory Birds Convention Act secondary to the Treaty of 1827, which objective was the setting aside of lands for the use of the Chippewa Indians and their posterity by creating the Kettle Point Reserve.

The intention behind section 87 of the Indian Act was to subject Indians to provincial laws of general application and not making federal legislation subjected to treaties. The laws referred in section 87 refers are those falling under the province’s legislative power. Likewise, the mention of treaties was meant to subject Indians to provincial laws and not giving supremacy to treaties over federal legislation.

Impact

The events relevant to this case all took place before 1982. In that year, existing aboriginal and treaty rights, including the treaty right to hunt for food, became entrenched in the Constitution Act, 1982. Since then, provincial law of general application, even if it falls under section 88 of the Indian Act, cannot be applied to Aboriginal if it unlawfully infringe upon a recognized aboriginal or treaty right. Following Sioui, treaty rights are protected from provincial laws of general application when applied to Aboriginals through the mechanism of section 88 (Olthuis, Kleer and Townshend, 2008: 41; Hogg, 2008).

See Daniels v. White for an analysis on the Migratory Birds Convention.