R. v. Marshall

R. v. Marshall
Collection
Supreme Court Judgments
Date
1999-09-17
Report
[1999] 3 SCR 456
Case number
26014
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Binnie, William Ian Corneil
On appeal from
Nova Scotia
Subjects
Aboriginal law
Notes
SCC Case Information: 26014
Decision Content
R. v. Marshall, [1999] 3 S.C.R. 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. Marshall
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 scotia
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 April 17, 1982, detract from the higher protection they presently offer to the Mi’kmaq people.
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).
Maritime Provinces Fishery Regulations, SOR/93-55, ss. 4(1)(a), 5, 20.
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. Fredericton: Paul & Gaffney, 1986.
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. Ottawa: Department of Indian and Northern Affairs Canada, 1983.
Dickason, Olive Patricia. “Amerindians Between French and English in Nova Scotia, 1713-1763”, American Indian Culture and Research Journal, X, 4 (1986), 31-56.
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. Toronto: University of Toronto Press, 1935, 57-67.
MAWIW District Council and Indian and Northern Affairs Canada. “We Should Walk in the Tract Mr. Dummer Made”: A Written Joint Assessment of Historical Materials . . . Relative to Dummer’s Treaty of 1725 and All Other Related or Relevant Maritime Treaties and Treaty Negotiations. St. John, N.B., 1992.
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 North America to 1763 and an Analysis of the Royal Proclamation of 7 October 1763. Ottawa: Research Branch, Indian and Northern Affairs Canada, 1981.
Treitel, G. H. The Law of Contract, 9th ed. London: Sweet & Maxwell, 1995.
Upton, Leslie F. S. Micmacs and Colonists: Indian-White Relations in the Maritimes, 1713-1867. Vancouver: University of British Columbia Press, 1979.
Waddams, S. M. The Law of Contracts, 3rd ed. Toronto: Canada Law Book, 1993.
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 Provincial Court, [1996] N.S.J. No. 246 (QL), convicting the accused of three offences under the Fisheries Act . Appeal allowed, Gonthier and McLachlin JJ. dissenting.
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 New Brunswick.
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 Pomquet Harbour, Antigonish County, Nova Scotia to fish for eels. They landed 463 pounds, which they sold for $787.10, and for which the appellant was arrested and prosecuted.
2 On an earlier August morning, some 235 years previously, the Reverend John Seycombe of Chester, Nova Scotia, a missionary and sometime dining companion of the Governor, noted with satisfaction in his diary, “Two Indian squaws brought seal skins and eels to sell”. That transaction was apparently completed without arrest or other incident. The thread of continuity between these events, it seems, is that the Mi’kmaq people have sustained themselves in part by harvesting and trading fish (including eels) since Europeans first visited the coasts of what is now Nova Scotia in the 16th century. The appellant says that they are entitled to continue to do so now by virtue of a treaty right agreed to by the British Crown in 1760. As noted by my colleague, Justice McLachlin, the appellant is guilty as charged unless his activities were protected by an existing aboriginal or treaty right. No reliance was placed on any aboriginal right; the appellant chooses to rest his case entirely on the Mi’kmaq treaties of 1760-61.
3 The trial judge ([1996] N.S.J. No. 246 (QL) (Prov. Ct.)) accepted as applicable the terms of a Treaty of Peace and Friendship signed on March 10, 1760 at Halifax. The parties disagree about the existence of alleged oral terms, as well as the implications of the “trade clause” written into that document. From this distance, across more than two centuries, events are necessarily seen as “through a glass, darkly”. The parties were negotiating in March 1760 in the shadow of the great military and political turmoil following the fall of the French fortresses at Louisbourg, Cape Breton (June 1758) and Quebec (September 1759). The Mi’kmaq signatories had been allies of the French King, and Montreal would continue to be part of New France until it subsequently fell in June 1760. The British had almost completed the process of expelling the Acadians from southern Nova Scotia. Both the Treaty of Paris, ending hostilities, and the Royal Proclamation of 1763 were still three years in the future. Only six years prior to the signing of the treaties, the British Governor of Nova Scotia had issued a Proclamation (May 14, 1756) offering rewards for the killing and capturing of Mi’kmaq throughout Nova Scotia, which then included New Brunswick. The treaties were entered into in a period where the British were attempting to expand and secure their control over their northern possessions. The subtext of the Mi’kmaq treaties was reconciliation and mutual advantage.
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 Nova Scotia had entered into separate but similar treaties. Some of these documents are missing. Despite some variations among some of the documents, Embree Prov. Ct. J. was satisfied that the written terms applicable to this dispute were contained in a Treaty of Peace and Friendship entered into by Governor Charles Lawrence on March 10, 1760, which in its entirety provides as follows:
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 Liberty and that we will use our utmost endeavours to prevail on the other tribes to do the same, if any prisoners shall happen to be in their hands.
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 Halifax in Nova Scotia this day of March one thousand
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 Nova Scotia within a few years and by 1780 a replacement regime of government licensed traders had also fallen into disuse while the British Crown was attending to the American Revolution. The trial judge, Embree Prov. Ct. J., rejected the Crown’s argument that the trade clause amounted to nothing more than a negative covenant. He found, at para. 116, that it reflected a grant to the Mi’kmaq of the positive right to “bring the products of their hunting, fishing and gathering to a truckhouse to trade”. The Court of Appeal ((1997), 159 N.S.R. (2d) 186) found that the trial judge misspoke when he used the word “right”. It held that the trade clause does not grant the Mi’kmaq any rights. Instead, the trade clause represented a “mechanism imposed upon them to help ensure that the peace was a lasting one, by obviating their need to trade with enemies of the British” (p. 208). When the truckhouses disappeared, said the court, so did any vestiges of the restriction or entitlement, and that was the end of it.
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 March 10, 1760 document, standing in isolation, do not support the appellant’s argument. The question is whether the underlying negotiations produced a broader agreement between the British and the Mi’kmaq, memorialized only in part by the Treaty of Peace and Friendship, that would protect the appellant’s activities that are the subject of the prosecution. I should say at the outset that the appellant overstates his case. In my view, the treaty rights are limited to securing “necessaries” (which I construe in the modern context, as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth. The rights thus construed, however, are, in my opinion, treaty rights within the meaning of s. 35 of the Constitution Act, 1982 , and are subject to regulations that can be justified under the Badger test (R. v. Badger, [1996] 1 S.C.R 771).
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.
10 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. Rules of interpretation in contract law are in general more strict than those applicable to treaties, yet Professor Waddams states in The Law of Contracts (3rd ed. 1993), at para. 316:
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).
11 Secondly, even in the context of a treaty document that purports to contain all of the terms, this Court has made clear in recent cases that extrinsic evidence of the historical and cultural context of a treaty may be received even absent any ambiguity on the face of the treaty. MacKinnon A.C.J.O. laid down the principle in Taylor and Williams, supra, at p. 236:
. . . 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.
12 Thirdly, where a treaty was concluded verbally 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 terms, per Dickson J. (as he then was) in Guerin v. The Queen, [1984] 2 S.C.R. 335. Dickson J. stated for the majority, at p. 388:
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”.
14 Subsequent cases have distanced themselves from a “strict” rule of treaty interpretation, as more recently discussed by Cory J., in Badger, supra, at para. 52:
. . . 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
15 In 1749, following one of the continuing wars between Britain and France, the British Governor at Halifax had issued what was apparently the first of the Proclamations “authorizing the military and all British subjects to kill or capture any Mi’kmaq found, and offering a reward”. This prompted what the Crown’s expert witness at trial referred to as a “British-Mi’kmaq war”. By 1751 relations had eased to the point where the 1749 Proclamation was revoked, and in November 1752 the Shubenacadie Mi’kmaq entered into the 1752 Treaty which was the subject of this Court’s decision in Simon. This treaty stated in Article 4 that:
It is agreed that the said Tribe of Indians shal