Supreme Court of Canada – , 52 D.L.R. (2d) 481
The Supreme Court develops a liberal approach to treaty interpretation, and recognizes the existence of a treaty.
Was the 1854’s agreement a treaty in the sense of the Indian Act?
Yes, the 1854’s agreement was not a simple sale agreement – it was a treaty (unanimous decision).
Between: the Crown of British Columbia
And: White and Bob
In 1854, the Saalequun tribe is part of an agreement with the Nanaimo tribes on Vancouver Island for the sale of their lands to the Hudson’s Bay Co. in return for the right to hunt and fish for food on the lands sold and on any unoccupied lands.
In 1963, White and Bob, both members of the Saalequun tribe, were charged under the Game Act for being found in the possession of six deer carcasses for over nine days after the close of the open season. They were conducted before a magistrate who convicted them of the offense.
White and Bob: The document signed in 1854 is a treaty that gives the concerned natives a right to hunt for food at any time on unoccupied Crown land. Thus through section 87 of the Indian Act, they are subtracted from the relevant sections of the Game Act. Alternatively, they maintain that their right to hunt for food is protected by the Royal Proclamation of 1763.
The Crown of British Columbia: The dispositions of the Game Act are applicable to White and Bob. The document does not create hunting rights for the Saalequun tribe, but only recognized the privileges already given by the British Crown. The Game Act abolished those privileges when it was enacted. Even if the document created or recognized rights, it is not a treaty because the British Crown was not a party to the sale, thus section 87 of the Indian Act cannot be applied.
County Court of British Columbia (1963): The summary convictions were repealed with an acquittal.
British Columbia Court of Appeal (1964): The acquittals are upheld. The minority found that the agreement was simply a sale and not a treaty.
Decision delivered on the bench.
The Supreme Court issued its decision on the bench without hearing representations from both parties, agreeing with the Court of Appeal’s motives. The document signed in 1854 was indeed a treaty within the meaning of section 87 of the Indian Act. Hence, the Saalequun tribe is excluded from the application section 25 of the Game Act.
The Court of Appeal found that the Royal Proclamation did not apply to Indians of Vancouver Island because the Crown did not own the lands at the time of the signing. When taking into account the Hudson’s Bay Co.’s role in colonizing Canada, the document signed in 1854 could not have been a simple sale agreement between private parties. When enacting section 87, Parliament had the intention of including such agreements in the definition of “treaty” and to exclude their terms from the operational part of the section. Consequently, section 87 exempts the respondents from the provisions of the Game Act.
White and Bob was the first decision in modern Canadian judicial history to ponder over the impacts of the Royal Proclamation, 1763 on contemporary relations between the Crown and Aboriginal peoples. The decision, confirming the existence of a treaty right to hunt for food for the Saalequun tribe, laid down the legal framework for the development of the Aboriginal rights theory upon which the Supreme Court would base latter its decision in Calder.
The Privy Council had already explored some of the implications of the Royal Proclamation, 1763 in St. Catherine Millings. However, in White and Bob, it was affirmed that its enactment confirmed the existence of aboriginal rights instead of creating them at the seam. With this judgment, the questions of Aboriginal rights and the effects of historic treaties were once again subject to discussion by the country’s highest court (RCAP, 1996).
R. v. Sioui,  1 S.C.R. 1025
Royal Commission on Aboriginal Peoples. 1996. Looking Forward Looking Back. Vol. 1, Part One. Ottawa : Supply and Services Canada.