Supreme Court of Canada –  1 S.C.R. 1025 – ‘Sioui’
The Supreme Court specifies the characteristics of treaties between Aboriginals and the Crown of Canada.
The decision explains that it is important to take into account the historical context, the capacity and the intentions of the parties to determine whether the document in question is a treaty. It affirms that treaties must receive a generous interpretation.
It also affirms that a treaty cannot be extinguished without the consent of the Indians concerned.
Is the document signed by General Murray a treaty in the sense of sect. 88 of the Indian Act, and if so, was it still effective at the time of the offence, committed contrary to the Regulation respecting the Parc de la Jacques-Cartier?
The document signed by General Murray, which recognizes “the free Exercise of their Religion, their Customs, and Liberty of trading with the English”, is a treaty and is still operative today (unanimous decision).
And: Régent Sioui, Conrad Sioui [sic], Georges Sioui and Hugues Sioui
Interveners: Canada and the National Indian Brotherhood / Assembly of First Nations
Around 1650, the Huron came to live in the Quebec City region after leaving their ancestral lands near Georgian Bay, in what is today known as Ontario.
Numerous Hurons settled on lands in Lorette (what is today known as Ancienne-Lorette) and regularly used the Jacques-Cartier Park for their traditional activities.
In 1760, a document signed by General Murray (then the highest-ranking officer in the British Army posted in Canada) recognized the Huron’s right to freely exercise their religion and customs on their territories and their freedom to trade with the English.
In 1983, Régent, Konrad, Georges and Hugues Sioui, members of the Huron band of the Lorette Indian reserve, today the Wendake Indian Reserve, set up a camp in Jacques-Cartier Park to practice their ancestral customs and religious rites, which required that they cut down trees and light fires.
Both acts were prohibited by the Regulation respecting the Parc de la Jacques-Cartier adopted pursuant to the Parks Act and the four men were convicted of the offences of cutting down trees and making fires and were sentenced to a fine by the Court of Sessions of the Peace.
Quebec: The document in question is not a treaty since the British Crown could not enter into a treaty with the Huron in 1760 because it was not yet sovereign in Canada. Also, Murray did not have the capacity to conclude a treaty with the Hurons since he was the subordinate to the Commander of the British Forces in North America and the Hurons had not historically occupied the Jacques-Cartier Park. Therefore, as descendants of the Hurons, the Siouis could not be exempt from prosecution.
The Siouis: The Parks Act is not a law of general application and under s. 88 of the Indian Act, and it conflicted with the 1760 document signed by General Murray, a treaty. It gave them the right to free exercise of their religion. Consequently, they could not be prosecuted under this law.
Court of Sessions of the Peace (1983): The respondents were found guilty of the offences.
Superior Court of Québec (1985): The Siouis appealed the conviction by the Superior Court by way of a new trial. They admitted to the acts constituting the offence but claimed that s. 88 of the Indian Act rendered the Parks Act’s regulations inapplicable to them because a treaty guaranteed their rights to such practices. The Court found that the document was not a treaty and dismissed their appeal.
Québec Court of Appeal (1987): The Court of Appeal overturned the lower court’s judgement. The majority found that the 1760 document was in fact a treaty and that the traditional activities or religious rites celebrated by the Hurons in Jacques-Cartier Park were protected by the provisions of the treaty. Hence, the Siouis were not liable to prosecution by the effect of s. 88 of the Indian Act.
Dickson, Lamer, Wilson, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin
The document in question was a treaty as defined by the Indian Act, as the Hurons could reasonably assume that the rights recognized therein were protected as long as the British Crown maintained control over Canada. As the highest ranking British officer in Quebec, Murray had the capacity to reach an agreement in the form of a treaty, as did the Hurons. The historical context surrounding the signing of the 1760 document supports the contention that both the British Crown and the Hurons wanted to form an alliance and the document itself is the result of peace negotiations between both parties. A land claim was not essential to the existence of a treaty as it is meant in s. 88 of the Indian Act.
The treaty was not extinguished by the Treaty of Paris in 1763. In fact, the capitulation by the French could not be viewed as consent to the extinction of the rights in the treaty, as the Hurons were the only ones who could agree to the abolition of those rights. Even the creation of Jacques-Cartier Park and the non-usage of the treaty by the group does not equate to the extinction of the rights; “a solemn agreement cannot lose its validity merely because it has not been invoked”.
Use of the territory
The territory should be understood as the area used by the Hurons at the time of the treaty, as long as this use was not inconsistent with the use by the Crown. With regard to the territory, the Hurons could not expect its use by the Crown to remain unchanged. The area in question became a park with an objective of conservation of natural sites and to preserve its extraordinary features.
The use by the Hurons was not inconsistent with the occupancy of the Crown and did not threaten it in any way. Therefore, the Siouis could not be prosecuted.
With the constitutionalization of treaty rights in 1982, treaties are now full-fledged constitutional documents and the treaty rights contained therein are viewed as constitutional rights for Canada’s First Peoples that the federal and provincial governments must respect (Hunter, 2004: 65).
This decision defined what a treaty is and how it must be interpreted. It helped the Mi’kmaq in getting their treaty right to fish recognized in the Marshall cases. They invoked a Peace and Friendship Treaty concluded between the British Crown and their ancestors in 1760, the content of which is somewhat similar to the Murray Treaty (Id.: 59).
The new Parks Regulation adopted by the Quebec government in 2000 now specifies that the cutting of trees by a member of the Huron-Wendat Nation engaging in an activity for food, ritual or social purposes is allowed in the Parc national de la Jacques-Cartier, Parc national des Grands-Jardins and Parc national des Hautes-Gorges-de-la-Rivière-Malbaie (Parks Regulation, s. 20 al. 2). The Abenakis, Algonquins, Maliseets, Mi’kmaqs, Mohawks and Innus have also had similar rights recognized (Id.: Sch. 1).
The Sioui case has been criticized as an example of the politicization of Aboriginal history (Beaulieu, 2000: 546). The Court’s findings on historical documents are considered to be the authority on these matters, even if the evidence was ultimately appraised by judges and not historians (although expert historians are generally called to testify in Aboriginal cases). There is a risk that any historian criticizing a decision could be considered racist or anti-Aboriginal, even though there are legitimate concerns as to the certainty of the document’s purposes (Id.: 547).
The recognition of the Murray Treaty of 1760 by the Supreme Court was controversial. Historians were not in agreement on how to categorize the document: some considered it as a safe conduct ensuring the safety of the Hurons of Lorette, and for others, it was a formal treaty protecting the group’s religious practices (Trudel, 1996). Doubts were expressed as to whether peace between the British and the Hurons was negotiated on September 5, 1760, the date when the document was signed, and whether General Murray had the power to grant such an agreement (Morin, 51-52).
In 2009, the Huron-Wendats filed an application for judicial review before the Federal Court to contest the 2004 conclusion of the Agreement-in-Principle of General Nature between the federal government, the government of Quebec and certain Innu communities. They argue that this agreement covers a significant part of the territory protected by the Murray Treaty – or the Huron-British Treaty of 1760. In 2010, the application was suspended in order to undertake negotiations. In 2013, as Canada had not obtained the mandate to negotiate the “actualization” of the treaty, the application was reactivated.
R. v. White and Bob, (1965), 52 D.L.R. (2d) 481 (C.S.C.)
Parks Regulation, R.R.Q. ch. P-9, r. 25
Thomas v. Norris, (1992) 2 CNLR 139 (CSCB)
Beaulieu Alain. 2000. “Les pièges de la judiciarisation de l’histoire autochtone”, in Revue d’histoire de l’Amérique française 53(4) : 541-551.
Hunter Claire E. 2004. “In Defence of Characterizing First Nations Treaties as Contracts”, in University of Toronto Faculty Law Review 62: 61-83.
Morin Michel. 2004. “Les insuffisances d’une analyse purement historique des peuples autochtones”, in Ghyslain Otis (ed.), Droit, territoire et gouvernance des peoples autochtones. P.U.L. : Québec. 45-68.
Sioui Georges. 1994. “Les Wendats : une civilisation méconnue”, Québec : Presse de l’Université Laval.
Trudel Marcel. 1996. “Les Hurons et Murray en 1760 : Un traité qui n’est qu’un laissez-passer”, in Denis Vaugeois (ed.) Les Hurons de Lorette. Septentrion : Sillery. 132-158.