R. v. Sioui

R. v. Sioui
Collection
Supreme Court Judgments
Date
1990-05-24
Report
[1990] 1 SCR 1025
Case number
20628
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Quebec
Subjects
Aboriginal law
Notes
SCC Case Information: 20628
Decision Content
R. v. Sioui, [1990] 1 S.C.R. 1025
The Attorney General of Quebec Appellant
v.
Régent Sioui, Conrad Sioui,
Georges Sioui and Hugues Sioui Respondents
and
The Attorney General of Canada and
the National Indian Brotherhood/
Assembly of First Nations Interveners
indexed as: r. v. sioui
File No.: 20628.
1989: October 31, November 1; 1990: May 24.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for quebec
Indians -- Treaty -- Rights -- Customs and religion -- Huron band Indians charged with cutting down trees, camping and making fires in places not designated in Jacques-Cartier park contrary to provincial regulations ‑‑ Whether regulations applicable to Hurons practising customs and religious rites -- Whether document signed by General Murray in 1760 guaranteeing them free exercise of their customs and religion is a treaty -- Whether treaty still in effect -- Whether territorial scope of treaty extends to territory of park so as to make regulations unenforceable in respect of accused -- Indian Act, R.S.C., 1985, c. I-5, s. 88 -- Regulation respecting the Parc de la Jacques-Cartier, (1981) 113 O.G. II 3518, ss. 9, 37.
The respondents are members of the Huron band on the Lorette Indian reserve. They were convicted by the Court of Sessions of the Peace of cutting down trees, camping and making fires in places not designated in Jacques‑Cartier park contrary to ss. 9 and 37 of the Regulation respecting the Parc de la Jacques-Cartier, adopted pursuant to the Quebec Parks Act. The respondents appealed to the Superior Court against this judgment by way of trial de novo. They admitted committing the acts with which they were charged in the park, which is located outside the boundaries of the Lorette reserve. However, they alleged that they were practising certain ancestral customs and religious rites which are the subject of a treaty between the Hurons and the British, a treaty which brings s. 88 of the Indian Act into play and exempts them from compliance with the regulations. The treaty that the respondents rely on is a document of 1760 signed by General Murray. This document guaranteed the Hurons, in exchange for their surrender, British protection and the free exercise of their religion, customs and trade with the English. At that time the Hurons were settled at Lorette and made regular use of the territory of Jacques‑Cartier park. The Superior Court held that the document was not a treaty and dismissed the appeal. A majority of the Court of Appeal reversed this judgment. The court found that the 1760 document was a treaty and that the customary activities or religious rites practised by the Hurons in Jacques‑Cartier park were protected by the treaty. Section 88 of the Indian Act made the respondents immune from any prosecution. This appeal is to determine (1) whether the 1760 document is a treaty; (2) whether it is still in effect; and (3) whether it makes ss. 9 and 37 of the Regulation respecting the Parc de la Jacques‑Cartier unenforceable in respect of the respondents.
Held: The appeal should be dismissed.
The 1760 document is a treaty within the meaning of s. 88 of the Indian Act . Though the wording of the document does not suffice to determine its legal nature, the historical context and evidence relating to facts which occurred shortly before or after the signing of the document indicate that General Murray and the Hurons entered into an agreement to make peace and guarantee it. They entered into this agreement with the intention to create mutually binding obligations that would be solemnly respected. All the parties involved were competent to enter into this treaty. Even if Great Britain was not sovereign in Canada in 1760, the Hurons could reasonably have believed that it had the power to enter into a treaty with them and that this treaty would be in effect as long as the British controlled Canada. The circumstances prevailing at the time indicate that Murray had the necessary capacity to enter into a treaty, or at least that the Hurons could reasonably have assumed he did in view of the importance of his position in Canada at the time. In the case of the Hurons, though they could not claim historical occupation or possession of the lands in question, this did not prevent them from concluding a treaty with the British Crown. A territorial claim is not essential to the existence of a treaty within the meaning of s. 88 of the Indian Act .
The treaty was still in effect when the offences with which the respondents were charged were committed. The Act of Capitulation of Montreal in 1760 and the Treaty of Paris in 1763 did not have the effect of terminating rights resulting from the treaty. At the time, France could no longer claim to represent the Hurons. Since the Hurons had the capacity to enter into a treaty with the British Crown, they were the only ones who could give the necessary consent to its extinguishment. Similarly, the silence of the Royal Proclamation of 1763 regarding the treaty cannot be interpreted as extinguishing it. The change in use of the land by legislation in 1895 (creation of the Jacques‑Cartier park) also did not terminate the right protected by the treaty. If the treaty gives the Hurons the right to carry on their customs and religion in the territory of the park, the existence of a provincial statute and subordinate legislation will not ordinarily affect that right. Finally, non‑user of the treaty over a long period of time does not result in its extinguishment.
Although the treaty gives the Hurons the freedom to carry on their customs and religion, it makes no mention of the territory over which these rights may be exercised. As there is no express indication of the territorial scope of the treaty, it must be interpreted by determining the intention of the parties at the time it was concluded. When the historical context is given its full meaning, the interpretation that is called for is that the parties contemplated that the rights guaranteed by the treaty could be exercised over the entire territory frequented by the Hurons in 1760, so long as the carrying on of the customs and rites was not incompatible with the particular use made by the Crown of this territory. This interpretation would reconcile the Hurons' need to protect the exercise of their customs and the desire of the British conquerors to expand. It gave the British the necessary flexibility to be able to respond in due course to the increasing need to use Canada's resources, in the event that Canada remained under British suzerainty, and it allowed the Hurons to continue carrying on their rites and customs on the lands frequented to the extent that those rites and customs did not interfere with enjoyment of the lands by their occupier. The Hurons could not reasonably expect that the use would remain forever what it was in 1760. Jacques‑Cartier park is land occupied by the Crown, since the province has set it aside for a specific use. The park falls within the class of conservation parks and is intended to ensure the permanent protection of territory representative of the natural regions of Quebec or natural sites presenting exceptional features, while rendering them accessible to the public for the purposes of education and cross‑country recreation. This type of occupancy is not incompatible with the exercise of Huron rites and customs. For such an exercise to be incompatible with occupancy of the park by the Crown, it must not only be contrary to the purpose underlying that occupancy but it must prevent the realization of that purpose. Crown lands are held for the benefit of the community (exclusive use is not an essential aspect of public ownership) and the activities with which the respondents are charged do not seriously compromise the Crown's objectives in occupying the park. Neither the representative nature of the natural region where the park is located nor the exceptional nature of this natural site are threatened. These activities also present no obstacle to cross‑country recreation. Under s. 88 of the Indian Act , the respondents could therefore not be prosecuted since the activities in question were the subject of a treaty.
Cases Cited
Applied: Simon v. The Queen, [1985] 2 S.C.R. 387; R. v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.), aff'd (1965), 52 D.L.R. (2d) 481 (S.C.C.); referred to: Jones v. Meehan, 175 U.S. 1 (1899); R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 227; R. v. Horse, [1988] 1 S.C.R. 187; Worcester v. State of Georgia, 31 U.S. (6 Pet.) 515 (1832); Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313; R. v. Secretary of State for Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118.
Statutes and Regulations Cited
Act of Capitulation of Montreal (1760), arts. 40, 50.
Act of Capitulation of Québec (1759).
Act to establish the Laurentides National Park, S.Q. 1895, 58 Vict., c. 22.
Constitution Act, 1982, s. 35 .
Indian Act, R.S.C., 1985, c. I-5 [formerly R.S.C. 1970, c. I-6], s. 88.
Parks Act, R.S.Q., c. P-9, ss. 1(c), (e), 11.
Regulation respecting the Parc de la Jacques-Cartier, (1981) 113 O.G. II 3518, ss. 9, 37 [now R.R.Q. 1981, c. P-9, r. 2, ss. 10, 38].
Royal Proclamation, 1763 [reprinted R.S.C., 1985, App. II, No. 1].
Treaty of Paris (1763).
Authors Cited
Canadian Archives: Documents relating to the Constitutional History of Canada 1759-1791, 2nd and rev. ed., Part I. Edited by Adam Shortt and Arthur G. Dought. Ottawa: King's Printer.
Colden, Cadwallader. The History of the Five Indian Nations of Canada. London: T. Osborne, 1747.
Garneau, François Xavier. Histoire du Canada français, t. 3. Montréal: Les Amis de l'Histoire, 1969.
Jésuites. Relations des jésuites contenant ce qui s'est passé de plus remarquable dans les missions des Pères de la Compagnie de Jésus dans la Nouvelle‑France, vol. 2. Québec: Augustin Côté, 1858.
Johnson, Sir William. The Papers of Sir William Johnson, vols. I, III, X, XIII. Prepared for publication by the Division of Archives and History of the University of the State of New York. Albany: University of the State of New York, 1921 to 1962.
Knox, John. An Historical Journal of the Campaigns in North-America for the Years 1757, 1758, 1759 and 1760, vol. II. London, 1769.
Knox, John. Appendix to an Historical Journal of the Campaigns in North America for the Years 1757, 1758, 1759 and 1760, vol. III. Toronto: Champlain Society, 1916.
MacKenzie, N. A. M. "Indians and Treaties in Law" (1929), 7 Can. Bar. Rev. 561.
Montcalm, Louis-Joseph. Journal du Marquis de Montcalm durant ses campagnes en Canada de 1756 à 1759. Publié sous la direction de H.-R. Casgrain. Québec: Imprimerie De L.-J. Demers & Frère, 1895.
Murray, James. Governor Murray's Journal of the Siege of Quebec. Toronto: Rous & Mann Ltd., 1939.
O'Callaghan, E. B., ed. Documents relative to the Colonial History of New York, vol. VII. Albany, N.Y.: Weed, Parsons and Co., 1856.
Ortolan, Eugène. Des moyens d'acquérir le domaine international ou propriété d'État entre les nations. Paris: Amyot, 1851.
Québec. Archives de Québec. Rapport de l'archiviste de la Province de Québec pour 1923-1924, Québec: Imprimeur de Sa Majesté le Roi, 1924.
Ratelle, Maurice. Contexte historique de la localisation des Attikameks et des Montagnais de 1760 à nos jours. Publié en collaboration avec le Bureau du coordonnateur aux Affaires autochtones, ministère de l'Énergie et des Ressources, 1987.
Stagg, Jack. Anglo-Indian Relations in North America to 1763. Ottawa: Research Branch, Indian and Northern Affairs Canada, 1981.
Vattel, Emmerich de. The Law of Nations or Principles of the Law of Nature, vol. II, book III. London, 1760.
APPEAL from a judgment of the Quebec Court of Appeal, [1987] R.J.Q. 1722, 8 Q.A.C. 189, [1987] C.N.L.R. 118, reversing a judgment of the Superior Court, J.E. 85-947, dismissing the respondents' appeals by way of trial de novo from their convictions for offences under the Parks Act, J.E. 83-722. Appeal dismissed.
Robert Décary, Q.C., and René Morin, for the appellant.
Jacques Larochelle and Guy Dion, for the respondents.
Jean-Marc Aubry, Q.C., for the intervener the Attorney General of Canada.
Peter W. Hutchins and Franklin S. Gertler, for the intervener National Indian Brotherhood/Assembly of First Nations.
//Lamer J.//
English version of the judgment of the Court delivered by
Lamer J. --
I - Facts and Relevant Legislation
The four respondents were convicted by the Court of Sessions of the Peace of cutting down trees, camping and making fires in places not designated in Jacques‑Cartier park contrary to ss. 9 and 37 of the Regulation respecting the Parc de la Jacques‑Cartier (Order in Council 3108‑81 of November 11, 1981, (1981) 113 O.G. II 3518), adopted pursuant to the Parks Act, R.S.Q., c. P‑9. The regulations state that:
9. In the Park, users may not:
1. destroy, mutilate, remove or introduce any kind of plant or part thereof.
However, the collection of edible vegetable products is authorized solely for the purpose of consumption as food on the site, except in the preservation zones where it is forbidden at all times;
37. Camping and fires are permitted only in the places designated and arranged for those purposes.
The Parks Act, under which the foregoing regulations were adopted, provides the following penalties for an offence:
11. Every person who infringes this act or the regulations is guilty of an offence and liable on summary proceedings, in addition to the costs, to a fine of not less than $50 nor more than $1,000 in the case of an individual and to a fine of not less than $200 nor more than $5,000 in the case of a corporation.
The respondents appealed unsuccessfully to the Superior Court against this judgment by way of trial de novo. However, the Court of Appeal allowed their appeal and acquitted the respondents, Jacques J.A. dissenting.
The respondents are Indians within the meaning of the Indian Act, R.S.C., 1985, c. I‑5 (formerly R.S.C. 1970, c. I‑6), and are members of the Huron band on the Lorette Indian reserve. They admit that they committed the acts with which they were charged in Jacques‑Cartier park, which is located outside the boundaries of the Lorette reserve. However, they alleged that they were practising certain ancestral customs and religious rites which are the subject of a treaty between the Hurons and the British, a treaty which brings s. 88 of the Indian Act into play and exempts them from compliance with the regulations. Section 88 of the Indian Act states that:
88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by‑law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.
The document the respondents rely on in support of their contentions is dated September 5, 1760 and signed by Brigadier General James Murray. It reads as follows:
THESE are to certify that the CHIEF of the HURON tribe of Indians, having come to me in the name of His Nation, to submit to His BRITANNICK MAJESTY, and make Peace, has been received under my Protection, with his whole Tribe; and henceforth no English Officer or party is to molest, or interrupt them in returning to their Settlement at LORETTE; and they are received upon the same terms with the Canadians, being allowed the free Exercise of their Religion, their Customs, and Liberty of trading with the English: -- recommending it to the Officers commanding the Posts, to treat them kindly.
Given under my hand at Longueil, this 5th day of September, 1760.
By the Genl's Command,
JOHN COSNAN, JA. MURRAY.
Adjut. Genl.
The Hurons had been in the Québec area since about 1650, after having had to leave their ancestral lands located in territory which is now in Ontario. In 1760, they were settled at Lorette on land given to them by the Jesuits eighteen years earlier and made regular use of the territory of Jacques‑Cartier park at that time.
II - Judgments
A. Court of Sessions of the Peace
The questions regarding the existence of a treaty, its extinguishment and its scope were not raised before Judge Bilodeau of the Court of Sessions of the Peace: J.E. 83‑722. The respondents argued instead that the regulations were adopted without authority, that they were illegal because they were too vague and imprecise and that they had not been infringed, at least as regards the cutting down and mutilation of trees. Judge Bilodeau rejected each of these arguments.
Finally, the respondents contended that as the relevant provincial legislation was not of general application, s. 88 of the Indian Act made them immune to prosecution under this legislation. Judge Bilodeau concluded that the provincial legislation was general in scope and so found the respondents guilty of the offences with which they were charged.
B. Superior Court
The issue which is the subject of the appeal to this Court was considered by Desjardins J.: J.E. 85‑947. He rejected the respondents' argument that the document of September 5 was a treaty, on the ground that Murray had neither the powers nor the intention to enter into a treaty giving territorial rights to the Hurons. He concluded that it was actually a certificate of protection or a safe conduct, and based his conclusion on the fact that neither the Huron nation nor the Sovereign ever regarded the document of September 5 as a treaty.
In the Superior Court the respondents also made the following argument, which was then abandoned in the subsequent appeals: an ancestral right to hunt and fish for their sustenance and that of their families was enjoyed by the Hurons over the territory in question and necessarily implied the right to move about and set up their tents. Desjardins J. considered that such a right had not been proven and that, even if it had been, the provincial legislation would nonetheless have regulated its exercise.
C. Court of Appeal
In the Quebec Court of Appeal, [1987] R.J.Q. 1722, the respondents abandoned all arguments based on ancestral rights, rights that might result from the Royal Proclamation of October 7, 1763 or s. 35 of the Constitution Act, 1982 .
Bisson J.A., as he then was, whose opinion was concurred in by Paré J.A., saw the document of September 5 as a treaty by which the Hurons surrendered to the British and made peace in exchange for British protection and the free exercise of their religion, customs and trade with the English. The presence of this specific mention of free exercise of religion, customs and liberty of trading with the English is, in the view of the majority, the decisive factor making the document at issue a treaty. Bisson J.A. further concluded that the Act of Capitulation of Montreal had not extinguished the treaty. On the question of whether the customary activities or religious rites practised by the Hurons in Jacques‑Cartier park were protected by the treaty, Bisson J.A. considered that all the evidence tended to show that the Hurons moved freely in the area in 1760 and carried on religious and customary activities there. Accordingly it followed, he said, that s. 88 of the Indian Act made the respondents immune from any prosecution for the activities with which they were charged, since the latter were the subject of a treaty whose rights could not be limited by provincial legislation.
Jacques J.A., dissenting, considered that the respondents' claim was of an essentially territorial nature and that neither the document at issue nor the Royal Proclamation of October 7, 1763 conferred rights of this kind on the native peoples.
III - Points at Issue
The appellants are asking this Court to dispose of the appeal solely on the basis of the document of September 5, 1760 and s. 88 of the Indian Act . The following constitutional questions were stated by the Chief Justice:
1. Does the following document, signed by General Murray on 5 September 1760, constitute a treaty within the meaning of s. 88 of the Indian Act, R.S.C. 1970, c. I‑6?
"THESE are to certify that the CHIEF of the HURON tribe of Indians, having come to me in the name of His Nation, to submit to His BRITANNICK MAJESTY, and make Peace, has been received under my Protection, with his whole Tribe; and henceforth no English Officer or party is to molest, or interrupt them in returning to their Settlement at LORETTE; and they are received upon the same terms with the Canadians, being allowed the free Exercise of their Religion, their Customs, and Liberty of trading with the English: -- recommending it to the Officers commanding the Posts, to treat them kindly.
Given under my hand at Longueil, this 5th day of September, 1760.
By the Genl's Command,
JOHN COSNAN, JA. MURRAY.
Adjut. Genl."
2. If the answer to question 1 is in the affirmative, was the "treaty" still operative on 29 May 1982, at the time when the alleged offences were committed?
3. If the answers to questions 1 and 2 are in the affirmative, are the terms of the document of such a nature as to make ss. 9 and 37 of the Regulation respecting the Parc de la Jacques‑Cartier (Order in Council 3108‑81, Gazette officielle du Québec, Part II, November 25, 1981, pp. 3518 et seq.) made under the Parks Act, R.S.Q., c. P‑9, unenforceable in respect of the respondents?
To decide the case at bar I will consider first the question of whether Great Britain, General Murray and the Hurons had capacity to sign a treaty, assuming that those parties intended to do so. If they had, I will then consider whether the parties actually did enter into a treaty. Finally, if the document of September 5, 1760 is a treaty, I will analyse its contents to determine the nature of the rights guaranteed therein and establish whether they have territorial application.
IV - Analysis
A. Introduction
Our courts and those of our neighbours to the south have already considered what distinguishes a treaty with the Indians from other agreements affecting them. The task is not an easy one. In Simon v. The Queen, [1985] 2 S.C.R. 387, this Court adopted the comment of Norris J.A. in R. v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.) (affirmed in the Supreme Court (1965), 52 D.L.R. (2d) 481), that the courts should show flexibility in determining the legal nature of a document recording a transaction with the Indians. In particular, they must take into account the historical context and perception each party might have as to the nature of the undertaking contained in the document under consideration. To the question of whether the document at issue in White and Bob was a treaty within the meaning of the Indian Act , Norris J.A. replied (at pp. 648‑49):
The question is, in my respectful opinion, to be resolved not by the application of rigid rules of construction without regard to the circumstances existing when the document was completed nor by the tests of modern day draftsmanship. In determining what the intention of Parliament was at the time of the enactment of s. 87 [now s. 88] of the Indian Act , Parliament is to be taken to have had in mind the common understanding of the parties to the document at the time it was executed.
As the Chief Justice said in Simon, supra, treaties and statutes relating to Indians should be liberally construed and uncertainties resolved in favour of the Indians (at p. 410). In our quest for the legal nature of the document of September 5, 1760, therefore, we should adopt a broad and generous interpretation of what constitutes a treaty.
In my opinion, this liberal and generous attitude, heedful of historical fact, should also guide us in examining the preliminary question of the capacity to sign a treaty, as illustrated by Simon and White and Bob.
Finally, once a valid treaty is found to exist, that treaty must in turn be given a just, broad and liberal construction. This principle, for which there is ample precedent, was recently reaffirmed in Simon. The factors underlying this rule were eloquently stated in Jones v. Meehan, 175 U.S. 1 (1899), a judgment of the United States Supreme Court, and are I think just as relevant to questions involving the existence of a treaty and the capacity of the parties as they are to the interpretation of a treaty (at pp. 10‑11):
In construing any treaty between the United States and an Indian tribe, it must always . . . be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.
The Indian people are today much better versed in the art of negotiation with public authorities than they were when the United States Supreme Court handed down its decision in Jones. As the document in question was signed over a hundred years before that decision, these considerations argue all the more strongly for the courts to adopt a generous and liberal approach.
B. Question of Capacity of Parties Involved
Before deciding whether the intention in the document of September 5, 1760 was to enter into a treaty within the meaning of s. 88 of the Indian Act , this Court must decide preliminary matters regarding the capacity of Great Britain, General Murray and the Huron nation to enter into a treaty. If any one of these parties was without such capacity, the document at issue could not be a valid treaty and it would then be pointless to consider it further.
As to General Murray's capacity, the appellant argued that Bisson J.A. erred in suggesting that he had admitted Murray's capacity to enter into a treaty. He said he only admitted that the signature on the document was that of Murray and that the document was a safe conduct. As I consider that Murray had the capacity to enter into a treaty, the question of whether or not an admission was made in this regard is of no importance.
I will first examine the capacity of Great Britain to enter into a treaty and then consider that of Murray and the Hurons.
1. Capacity of Great Britain
At this preliminary stage of the analysis, and for purposes of discussion, it has to be assumed that the document of September 5, 1760 possesses the characteristics of a treaty and that the only issue that arises concerns the capacity of the parties to create obligations of the kind contained in a treaty.
The appellant argued that the British Crown could not validly enter into a treaty with the Hurons as it was not sovereign in Canada in 1760. The appellant based this argument on the rules of international law, as stated by certain eighteenth and nineteenth century writers, which required that a state should be sovereign in a territory before it could alienate that territory. (See E. de Vattel, The Law of Nations or Principles of the Law of Nature (1760), vol. II, book III, para. 197; E. Ortolan, Des moyens d'acquérir le domaine international ou propriété d'État entre les nations (1851), para. 167.)
Without deciding what the international law on this point was, I note that the writers to whom the appellant referred the Court studied the rules governing international relations and did not comment on the rules which at that time governed the conclusion of treaties between European nations and native peoples. In any case, the rules of international law do not preclude the document being characterized as a treaty within the meaning of s. 88 of the Indian Act . At the time with which we are concerned relations with Indian tribes fell somewhere between the kind of relations conducted between sovereign states and the relations that such states had with their own citizens. The Simon decision, supra, is clear in this regard: an Indian treaty is an agreement sui generis which is neither created nor terminated according to the rules of international law (p. 404).
Of course, if the document is a treaty, it could not have been binding on France if Canada had remained under its sovereignty at the end of the war. It would be fair to assume that the Hurons knew enough about warfare to understand that a treaty concluded with the enemy would be of little use to them if the French regained de facto control of New France.
Both Simon and White and Bob make it clear that the question of capacity must be seen from the point of view of the Indians at that time, and the Court must ask whether it was reasonable for them to have assumed that the other party they were dealing with had the authority to enter into a valid treaty with them. I conclude without any hesitation that the Hurons could reasonably have believed that the British Crown had the power to enter into a treaty with them that would be in effect as long as the British controlled Canada. France had not hesitated to enter into treaties of alliance with the Hurons and no one ever seemed to have questioned France's capacity to conclude such agreements. From the Hurons' point of view, there was no difference between these two European states. They were both foreigners to the Hurons and their presence in Canada had only one purpose, that of controlling the territory by force.
2. General Murray's Capacity
The appellant disputes Murray's capacity to sign a treaty on behalf of Great Britain on the ground that he was at that time only Governor of the city and district of Québec and a brigadier general in the British Army. As Governor, he was subject to the authority of His Majesty's Secretary of State for the Southern Department, and as a soldier he was the subordinate of General Amherst, the "Commander in Chief of His Britannic Majesty's Troops and Forces in North America". It is true that Murray's capacity to enter into this treaty is less obvious than that of Great Britain to "treat" with the Indians.
In Simon Dickson C.J. cited with approval, at pp. 400-401, N. A. M. MacKenzie in "Indians and Treaties in Law" (1929), 7 Can. Bar Rev. 561, on the question of a person's powers to enter into a treaty with the Indians:
As to the capacity of the Indians to contract and the authority of Governor Hopson to enter into such an agreement, with all deference to His Honour, both seem to have been present. Innumerable treaties and agreements of a similar character were made by Great Britain, France, the United States of America and Canada with the Indian tribes inhabiting this continent, and these treaties and agreements have been and still are held to be binding. Nor would Governor Hopson require special "powers" to enter into such an agreement. Ordinarily "full powers" specially conferred are essential to the proper negotiating of a treaty, but the Indians were not on a par with a sovereign state and fewer formalities were required in their case. Governor Hopson was the representative of His Majesty and as such had sufficient authority to make an agreement with the Indian tribes.
The Chief Justice went on as follows, at p. 401:
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. It also provided a mechanism for dispute resolution. The Micmac Chief and the three other Micmac signatories, as delegates of the Micmac people, would have possessed full capacity to enter into a binding treaty on behalf of the Micmac. Governor Hopson was the delegate and legal representative of His Majesty the King. It is fair to assume that the Micmac would have believed that Governor Hopson, acting on behalf of His Majesty the King, had the necessary authority to enter into a valid treaty with them. I would hold that the Treaty of 1752 was validly created by competent parties.
To arrive at the conclusion that a person had the capacity to enter into a treaty with the Indians, he or she must thus have represented the British Crown in very important, authoritative functions. It is then necessary to take the Indians' point of view and to ask whether it was reasonable for them to believe, in light of the circumstances and the position occupied by the party they were dealing with directly, that they had before them a person capable of binding the British Crown by treaty. To determine whether the Hurons' perception of Murray's capacity to sign a treaty on behalf of Great Britain was reasonable, the importance of the part played by the latter in Canada in 1760 has to be established.
Although during the siege of Québec James Murray was the fourth ranking officer in the British military hierarchy in Canada, after the death of Wolfe and the departure of Townshend and Monckton he became the highest ranking officer in the British Army stationed in Canada. General Amherst was the highest military authority in North America and his authority covered all British soldiers in Canada. Murray received the command of the troops at Québec from him. A very important fact is that since 1759 Murray had also acted as military governor of the Québec district, which included Lorette. He had used his powers to regulate, inter alia, the currency exchange rate and the prices of grain, bread and meat and to create civil courts and appoint judges (Governor Murray's Journal of the Siege of Quebec (1939), at pp. 10, 11, 12, 14, 16 and 17).
At the time the document under consideration was signed, General Amherst and his troops were occupied in crossing the rapids upstream of Montréal and it was not until some days later, probably on September 8, 1760, that they reached that city (see in this regard the work of F. X. Garneau, Histoire du Canada français (1969), vol. 3, at pp. 269‑72). In my view, therefore, the respondents are correct in stating that on September 5, 1760, Murray was the highest ranking British officer with whom the Hurons could have conferred. The circumstances prevailing at the time, in my view, thus support the respondents' proposition that Murray in fact had the necessary capacity to enter into a treaty. Furthermore, if there is still any doubt, I think it is clear in any event that Murray had such authority in New France that it was reasonable for the Hurons to believe that he had the power to enter into a treaty with them.
It is useful at this point to note a passage from the decision of the British Columbia Court of Appeal in White and Bob, cited with approval by this Court in Simon (at p. 649):
In the section [88] "Treaty" is not a word of art and in my respectful opinion, it embraces all such engagements made by persons in authority as may be brought within the term "the word of the white man" the sanctity of which was, at the time of British exploration and settlement, the most important means of obtaining the goodwill and co‑operation of the native tribes and ensuring that the colonists would be protected from death and destruction. On such assurance the Indians relied.
Murray was one of those persons who could reasonably have been assumed to be capable of giving the word of the white man. Finally, I would even go so far as to say that Murray, as Governor of the Quebec district, might reasonably have been regarded by the Hurons living in that district as the person most competent to sign a treaty with them. The fact that they belonged to the territory which was Murray's responsibility and in which he represented His Majesty, in my opinion, entitled them to assume he had the capacity to enter into a valid treaty with them.
In short, even apart from my conclusion with respect to Murray's actual authority to sign a treaty, I am of the view that the Hurons could reasonably have assumed that, as a general, Murray was giving them a safe conduct to return to Lorette, and that as Governor of the Québec district, he was signing a treaty guaranteeing the Hurons the free exercise of their religion, customs and trade with the English. In either case no problems concerning Murray's capacity would invalidate the treaty, if there was one.
For all these reasons, therefore, I conclude that Murray had the necessary powers to enter into a treaty with the Hurons that would be binding on the British.
3. Capacity of the Hurons
The appellant argues that the Hurons could not enter into a treaty with the British Crown because this Indian nation had no historical occupation or possession of the territory extending from the St‑Maurice to the Saguenay. Without going so far as to suggest that there cannot be treaties other than agreements under which the Indians cede land to the Crown, the appellant argues that a treaty could not confer rights on the Indians unless the latter could claim historical occupation or possession of the lands in question. The appellant deduces this requirement from the fact that most of the cases involving treaties between the British and the Indians concern territories which had traditionally been occupied or held at the time in question by the Indian nation which signed the treaty. The academic commentary cited by the appellant also deals with the aspect of historical occupation or possession of land found in treaties with Indians.
There is no basis either in precedent or in the ordinary meaning of the word "treaty" for imposing such a restriction on what can constitute a treaty within the meaning of s. 88 of the Indian Act . In Simon (at p. 410) this Court in fact rejected the argument that s. 88 applied only to land cession treaties. In the Court's opinion that would limit severely the scope of the word "treaty" and run contrary to the principle that Indians treaties should be liberally construed and uncertainties resolved in favour of the Indians. The argument made here must be rejected in the same way. There is no reason why an agreement concerning something other than a territory, such as an agreement about political or social rights, cannot be a treaty within the meaning of s. 88 of the Indian Act . There is also no basis for excluding agreements in which the Crown may have chosen to create, for the benefit of a tribe, rights over territory other than its traditional territory. Accordingly, I consider that a territorial claim is not essential to the existence of a treaty.
I therefore conclude that all the parties involved were competent to enter into a treaty within the meaning of s. 88 of the Indian Act . This leads me to consider the next question: did General Murray and the Hurons in fact enter into such a treaty?
C. Legal Nature of the Document of September 5, 1760
1. Constituent Elements of a Treaty
In Simon this Court noted that a treaty with the Indi