Simon v. The Queen

Supreme Court of Canada – [1985] 2 S.C.R. 387


Nova Scotia Application of laws to AboriginalsTreaties
Summary

Simon is one of the first cases about peace and friendship treaties in Canada. The Court recognizes that peace and friendship treaties can be considered as treaties within the meaning of section 88 of the Indian Act and, as such, exempt their beneficiaries from the application of certain provincial laws.

Quote

The Treaty was entered into for the benefit of both the British Crown and the Micmac people, to maintain peace and order as well as to recognize and confirm the existing hunting and fishing rights of the Micmac. In my opinion, both the Governor and the Micmac entered into the Treaty with the intention of creating mutually binding obligations which would be solemnly respected. (par. 24 of the decision).

Issue

Is the Treaty of 1752 valid and still in force and, if so, does it guarantee hunting rights for the Micmacs? Is it included within the meaning of treaty in section 88 of the Indian Act and can Simon invoke an exemption from prosecution under the Lands and Forests Act of Nova Scotia as a direct descendent of the Micmacs who signed the Treaty with the British in the first place?

Decision

The Treaty of 1752 is still in force. It protects the exercise of modern hunting by the Micmacs, and exempts them from the Lands and Forests Act (unanimous decision).

Parties

Between: James Matthew Simon

And: the Crown of Nova Scotia

Interveners: The Union of New Brunswick Indians, Inc., the Native Council of Nova Scotia, Canada, Ontario and New Brunswick

Facts

Simon is a member of the Shubenacadie Indian Brook Band (No. 2) of the Micmac Indians of Nova Scotia. That Nation is a signatory of the Treaty of 1752 that protects the Micmacs’ free liberty of hunting and fishing “as usual”.

In September 1980, as he was on a public road with his vehicule, Simon was charged with possession of a rifle and shotgun cartridges in violation of Nova Scotia’s Lands and Forests Act. He did not have any license, nor any authorization to carry such an arm

Arguments

Simon: He acknowledged that his action constituted the basic elements of the offence; he contended that the Treaty of 1752 and section 88 of the Indian Act protected him from prosecution under the provincial legislation. Section 88 provided that he was exempt from the application of a provincial law of general application, such as the Lands and Forests Act, because it would violate his rights as created by an earlier treaty.

The Crown of Nova Scotia: The Treaty of 1752 is not an international-type treaty which is more easily extinguished. It became unenforceable after conflict arose between the Micmacs and the British in 1753. And if the Treaty were considered to be in force, the right to hunt given to the Micmacs would be limited to the purposes and methods in use at the time of the Treaty’s signing, thus not covering the possession of a rifle and a shotgun for hunting purposes. Also, there is no sufficient proof that Simon is a direct descendent of the Micmacs who signed the treaty with the British. If the Court considered the document a Treaty, it would not fall under the scope of sect. 88 of the Indian Act because it only recognized the hunting and fishing rights of the Micmacs and did not create new ones.

Decision of the lower courts

Nova Scotia Provincial Court (1981): The Treaty is valid, but nevertheless Simon is convicted. The hunting rights have been extinguished by the Crown.

Nova Scotia Provincial Court, Appellate Division (1982): Simon’s appeal is dismissed. For the majority, it was clear that the hunting rights had been limited to the reserve lands.

Reasons for Judgement

Jury

Dickson, Beetz, Estey, McIntyre, Chouinard, Wilson, Le Dain

Reason

The evidence pointed to a mutual intention of the parties to enter into a binding agreement and the Treaty in question was found to be still in effect. It protects the Micmacs’ right to hunt, including the incidental activities connected with hunting, such as the right to transport a gun and ammunition to the designated area for hunting. The Treaty should be interpreted in a large and liberal manner, meaning in a flexible way, in order to include the normal evolution of hunting practices.

There is a satisfactory connection between Simon and his Micmac ancestors who signed the Treaty since he is a member of the same Nation and lives in the same area as the signatories. There is no need for a conclusive proof in this case but only sufficient evidence because most Nations never kept written records and their traditions are mostly oral. Imposing a harder burden would nullify the very notion of Aboriginal rights since no Aboriginal person living in Canada would be able to successfully establish his lineage.

Since the Treaty of 1752 implies compulsory obligations between the Indians and the Crown, it falls within the scope of sect. 88 of the Indian Act even if it created no new rights for the Micmacs. Parliament’s intention behind sect. 88 was to include all agreements between the Crown and Aboriginal people, whether they ceded their lands or not. Hence, Simon’s right to hunt pursuant to the Treaty was constrained by sect. 150 (1) of the Lands and Forests Act. The effect of section 88 is to exempt Aboriginal people from provincial legislation of general application (like the Lands and Forests Act) which contravenes the terms of any treaty.

Simon was acquitted, because he was in possession of a rifle and ammunition in a safe manner which is accessory to his right to hunt as recognized by the Crown in the Treaty of 1752.

Impact

This is one of the principal decisions of the Supreme Court with respect to treaties in the Maritimes. Its significance resides in the recognition of treaties of peace and friendship as treaties in the sense of sect. 88 of the Indian Act despite the fact that there was no land surrender involved.

Along with Nowegijick, Simon was among the first Supreme Court decisions to discuss the interpretation of treaties after section 35 of the Constitution Act of 1982 was enacted in 1982, giving constitutional protection to Aboriginal rights issuing from treaties. Even if the decision is based on section 88 of the Indian Act, the Court unanimously decided that treaties and statutes relating to Aboriginal people should be given a “fair, large and liberal construction” in deciding in favour of Aboriginal people and settling on the sense naturally understood by them each time an expression was equivocal.

Related Cases

Nowegijick v. La Reine, [1983] 1 S.C.R. 29

R. v. Sioui, [1990] 1 S.C.R. 1025


Sources

Isaac Thomas. 2001. Aboriginal and Treaty Rights in the Maritimes: The Marshall Decision and Beyond. Saskatoon: Purich Pub.

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