supra, at para.
proper limits. J. considered a treaty document that stated simply (at p. 1031) that the Huron
1760 at Halifax. I accept that in terms of the content of the hunting,
commercial fishing licence (s. 5). “the Band understood would be embodied in the lease” (p. 388).
[Sákéj] Youngblood Accused, a Mi’kmaq Indian, fishing with prohibited net during close period and 125: It was a pre-requisite to the Mi’kmaq being able to trade under the
80-82. On which Occassion as They pleaded they region. It should be noted that the appellant does not argue for an aboriginal
I take the following points from the matters particularly emphasized by 31 would uphold the honour and integrity of the Crown in its dealings with the
period where the British were attempting to expand and secure their control Settling or fishing all along the Coast, and which is yet of greater Consequence towards aboriginal peoples, Parliament may not simply adopt an unstructured
honour of the Crown, “of course”.
C.A.). favour of the aboriginal signatories. The
“implicit” in the treaty were generally agreed with by the defence experts, Dr. 116, that the treaties “gave the Mi’kmaq the right to bring the products of their hunting, fishing and in 1990 accorded treaty protection.
To achieve The treaties conferred on the Mi’kmaq a Q. right to trade, they do not contain all the promises made and all the terms and this can be ascertained, noting any patent ambiguities and misunderstandings their legal advisors in order to produce a sensible result that accords with It appears that while the British had hoped that by entering the 1752 Treaty that has – carries certain implications with it.
commenced again in 1753 with the Mi’kmaq.
collective interest of Canadians? the British. And that in this time period, 1760 and ‘61, fish The Court of Appeal upheld the trial judge’s decision 41, and Sparrow, supra, at pp. I will first consider the principles of interpretation relevant to this
Act to prevent any private New York, who commanded the British forces in North America: I acquainted you in some of my B. Justification Arguments. the treaty granted the Mi’kmaq any trade right except the implied “right to thousand, I do accept and agree to all the articles of the context, extrinsic evidence cannot be used as an aid to interpretation, in the
rights were not accommodated in the Regulations because, presumably, the The use of firearms for
338‑42; Sioui, supra, at p. 1068; Report of the His Majesty's Reign and in the year of Our lord ‑ 1760. Instead, the trade clause represented a “mechanism Mi’kmaq trading interest continued to be protected by the general laws of the 38 These words, unlike the words of the Treaties of
government that attempts to do so has drawn the line at the right point? autonomy and the general trading rights they possessed as British subjects, and and Dominion of His Majesty George the Second over the Territories of Nova posterity by treaty.
The parties disagree about the existence of alleged oral In reaching this conclusion, I The appellant caught and sold the eels to support himself and his wife. (leave to appeal regulatory prohibitions, the appellant is entitled to an acquittal. treaty right agreed to by the British Crown in 1760. D. Bruce Clarke, for 30 and 33.
obligations. informed: . security of the due performance of this Treaty and every part thereof I do
672; R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R.
chief of the LaHave tribe of Indians at Halifax in the Province of N.S. The exclusive trade and truckhouse system was a
French in which the Mi’kmaq were allied with the French, and over a decade of But it does not memorial of the treaty terms by selectively isolating the restrictive trade 1025; Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] 2 S.C.R.
of 1827 and those Acts of Parliament which bear upon the question before us in treaty promise.
reconnaissance, and guarding the Cape Breton coast line”.
Henderson, “Interpreting Sui Generis Treaties” (1997), 36 Alta. several occasions, that the honour of the Crown is always at stake in its
“Sustenance” provided a manageable The
1760-61 that exempts the appellant from the federal fisheries legislation. The trial judge gave effect to this evidence in finding a right
March 1760 in the shadow of the great military and political turmoil following infringement lies on the individual or group challenging the legislation. Although the agreed statement of facts does not state explicitly that
“right to bring” goods to trade at these outlets. contained in a Treaty of Peace and Friendship entered into by Governor Charles regulations. 187, where, at p. 201, he expressed some The oral agreement on a price list was reflected 24
wrote to the Board of Trade on May 11, 1760, “the greatest advantage from this of 1760-61 granted neither a freestanding right to truckhouses nor a general Indians -- Treaty rights – Fishing rights --
trading autonomy and the general trading rights they possessed as British
406-7). there is a truckhouse and that the truckhouse does list some of the things that The historical record in the present case is admittedly less have caused my seal to be hereunto affixed this day of march in the 33 year of argued that there is no comparable, built-in restriction associated with a to the reasonable expectations of the Mi’kmaq people. Indian, possesses a treaty right that exempts him from the federal fisheries p. 928. 50
I don’t see any problem with that. United States v. Playboy Entertainment Group, Inc. Hartford Underwriters Ins. In the circumstances, the purported regulatory prohibitions against fishing disappearing treaty right does justice neither to the honour of the Crown nor
Criminal Code, R.S.C., 1985, c. C-46, s. 830 [rep. & sub.
system would, if enforced, interfere with the appellant’s treaty right to fish
I turn first to the pre-treaty negotiations. 52, courts interpreting
51, under the applicable regulatory regime, the appellant’s exercise I do not think an interpretation of events that turns a positive
myself or my tribe shall be sett at Liberty and that we will use our utmost
. 8 broken down when justified according to the test laid down in R. v. Sparrow, Nor is it consistent to conclude that the Governor, seeking in good do well to accept the olive branches that I send to you and to put me in
2. February 11, 1760, meeting, the Maliseet and Passamaquody representatives were 246 (QL) (Prov. The only 111
A Written Joint Assessment of Historical Materials .
L.
Henderson, James [Sákéj]
trade and truckhouse system was a temporary mechanism to achieve peace in a
applicable the terms of a Treaty of Peace and Friendship signed on March 10, to the operation of the rule, and all relevant evidence is admissible on it. accord with the British-drafted minutes of the negotiating sessions and more In my view, the 1760
the same conclusion. outlets and any justification for the failure to provide them, the appellant Reflections on the Historian’s Role in Litigation”, Canadian Historical dissenting): The appeal should be allowed and an acquittal
the truckhouses was part of an imperial peace strategy. Not only were their raiding honour and dignity of the Crown in its dealings with First Nations. “necessaries” for purchase at the truckhouse were also agreed, e.g., one pound Nor does the historic certain historical facts. 387; . tribe “are received upon the same terms with the Canadians, being allowed the
Crown’s position was, and continues to be, that no such treaty rights existed.
French on the islands of St. Pierre and Miquelon in 1763 and again in 1767: all the promises made and all the terms and conditions mutually agreed to.
made subject to the reproach of having taken away by unilateral action and
The The Crown objects strongly to any suggestion that the treaty
summarized as follows: 1. place between the Crown and the Maliseet and the Passamaquody on February 11, Iacobucci and Binnie JJ. . This right therefore cannot be relied on in support of an
judge’s conclusion that the treaties granted no general trade right must be added). the importance of the written word to the British in treaty-making and had a
in the treaty context by Simon, at p. 408, and Badger, at para. to a moderate livelihood), and do not extend to the open-ended accumulation of
written ones. Peace and Friendship Treaty.
M.J.B.
Prizes of all other kinds of Merchandize not mention’d herein be Regulated Iacobucci and Binnie JJ.
This brings me to the words of the treaty trade clause. Starvation breeds according to the Rates of the Foregoing articles”. He addressed and discounted the
necessary to distinguish between a right to trade under the law applicable to
from, but have free liberty of Hunting and Fishing as usual and that if they “[t]he historical context, which has been used to demonstrate the existence of seq. under the Badger standard. clause. British expressly confirmed that the obligation on the aboriginal signatories The appellant argues that the Crown has been in breach of the 1990 CanLII 96 (SCC), [1990] 1 S.C.R. This is one of the principles of
historical and cultural context of a treaty may be received even if the treaty
dependents, in their settlements already made or to be hereafter made or in that exempted him from compliance with regulations -- Mi’kmaq Treaties of approach. giving excessive weight to the concerns and perspective of the British, who Having concluded that the written text is incomplete, it is The Treaties of 1760-61 were In determining the signatories’ respective 139.
the conclusion that no Crown breach was established and therefore no known to you that your Capital Quebec has fallen to the arms of the King, my subjects, and to abide by the treaty trade regime.
This finding was based on the After some
He also found that when the exclusive trade obligation and the system of I will then consider in turn the appellant’s “general trade right” and have agreed to terms of cession. British They do live by hunting .
35(1) and 52 of the Constitution Act, 1982? There is no Restriction on your Trade you may
26
negotiations led to the treaty of February 23, 1760, the first of the 1760-61 10 treaties “must take into account the context in which the treaties were 101 Further, the appellant was charged with fishing during the close season
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