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Court and Tribunal Decisions - Canada
Supreme Court of Canada (Lamer CJ, Binnie, L’Heureux-Dubi, Cory, Iacobucci, McLachlin and Gonthier JJ)
September 17, 1999
First Nations — treaty rights — fishing rights — treaty interpretation — use of extrinsic evidence in treaty interpretation — Mi’kmaq Treaties of 1760-1761 — accused Mi’kmaq admitted fishing with a prohibited net during close period and selling fish caught without a licence in violation of federal fishing regulations — whether treaty right to catch fish existed — the honour of the Crown in interpreting treaties — whether treaty right exempted accused from compliance with regulations — Maritime Provinces Fishery Regulations, SOR/93-55, ss 4(1)(a), 20 — Fishery (General) Regulations, SOR/92-53, s 35(2) — Constitution Act 1982, s 35(1).
The appellant, a Mi’kmaq Indian, admitted to having caught and sold eels with prohibited nets during the closed season without a licence. He argued that he possessed a treaty right to sell and catch fish under the Mi’kmaq treaties of 1760-1761 that exempted him from the regulations. The written treaties contain a ‘trade clause’ that restrained Mi’kmaq trade with non-government individuals; it did not contain an explicit right to hunt and fish. The trial judge found that when the ‘truckhouse system’ set up by the terms of the treaty to trade with the Mi’kmaq disappeared, the right to trade disappeared with it.
As per Binnie J (Lamer CJ and L’Heureux-Dubi, Cory and Iacobucci JJ concurring):
1. When interpreting treaties, extrinsic evidence can be used when there is ambiguity. The Court of Appeal erred by not considering such evidence. This is especially so when a treaty is concluded orally and written up afterwards by representatives of the Crown. It would be unconscionable for the Crown to ignore the oral terms while relying on the written ones.
2. The document contains a restrictive clause and contains no explicit right to trade, but it also fails to express all the terms orally agreed to. 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. The British-drafted treaty document did 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.
3. The appeal should be allowed, as the honour and integrity of the Crown need to be considered in relation to its dealings with the Mi’kmaq. 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. Where promise of access to ‘necessaries’ through trade in wildlife was made, there must be more than the mere disappearance of the mechanism created to facilitate the exercise of the right (such as the ‘truckhouses’) to warrant the conclusion that the right itself is spent or extinguished.
4. 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. This is a treaty right protected by 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 test set out in R v Badger [1996] 1 SCR 771.
McLachlin JJ (dissenting) (Gonthier J concurring):
There was no right to fish under the treaty. On the historical record, neither the Mi’kmaq nor the British intended or understood the treaty trade clause as creating a general right to trade. The appeal should therefore be dismissed and the charges upheld.[1]
1. 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] NSJ 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 1759) 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 CCC (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.
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:
...
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.
...
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 ...
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 SCR 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.
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 JJA 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 SCR 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 CCC (2d) 227 (Ont CA) (leave to appeal dismissed, [1981] 2 SCR 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 ACJO 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 SCR 1010, at para 87, and R v Sioui [1990] 1 SCR 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 SCR 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’. 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 SCR 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.
...
‘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, for example, of context and implied terms to make honourable sense of the treaty arrangement: Simon v The Queen [1985] 2 SCR 387, and R v Sundown [1999] 1 SCR 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). 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.
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18. The appellant admitted that he did what he was alleged to have done on August 24, 1993. The only contentious issues arose on the historical record and with respect to the conclusions and inferences drawn by Embree Prov Ct J from the documents, as explained by the expert witnesses.
...
19. In the present case, the trial judge, after a careful and detailed review of the evidence, concluded at para 116:
I accept as inherent in these treaties that the British recognized and accepted the existing Mi’kmaq way of life. Moreover, it’s my conclusion that the British would have wanted the Mi’kmaq to continue their hunting, fishing and gathering lifestyle. The British did not want the Mi’kmaq to become a long term burden on the public treasury although they did seem prepared to tolerate certain losses in their trade with the Mi’kmaq for the purpose of securing and maintaining their friendship and discouraging their future trade with the French. I am satisfied that this trade clause in the 1760-61 Treaties gave the Mi’kmaq the right to bring the products of their hunting, fishing and gathering to a truckhouse to trade.
The treaty document of March 10, 1760 sets out a restrictive covenant and does not say anything about a positive Mi’kmaq right to trade. In fact, the written document does not set out any Mi’kmaq rights at all, merely Mi’kmaq ‘promises’ and the Governor’s acceptance. I cannot reconcile the trial judge’s conclusion, at para 116, that the treaties ‘gave the Mi’kmaq the right to bring the products of their hunting, fishing and gathering to a truckhouse to trade’, with his conclusion at para 112 that:
The written treaties with the Mi’kmaq in 1760 and 1761 which are before me contain, and fairly represent, all the promises made and all the terms and conditions mutually agreed to.
It was, after all, the aboriginal leaders who 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’. It cannot be supposed that the Mi’kmaq raised the subject of trade concessions merely for the purpose of subjecting themselves to a trade restriction. As the Crown acknowledges in its factum, ‘The restrictive nature of the truckhouse clause was British in origin’. The trial judge’s view that the treaty obligations are all found within the four corners of the March 10, 1760 document, albeit generously interpreted, erred in law by failing to give adequate weight to the concerns and perspective of the Mi’kmaq people, despite the recorded history of the negotiations, and by giving excessive weight to the concerns and perspective of the British, who held the pen. (See Badger, at para 41, and Sioui, at p 1036.) The need to give balanced weight to the aboriginal perspective is equally applied in aboriginal rights cases: Van der Peet, at paras 4950; Delgamuukw, at para 81.
20. While the trial judge drew positive implications from the negative trade clause (reversed on this point by the Court of Appeal), 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 March 10, 1760 document was inconsistent with a proper recognition of the difficulties of proof confronted by aboriginal people, a principle emphasised in the treaty context by Simon, at p 408, and Badger, at para 4, and in the aboriginal rights context in Van der Peet, at para 68, and Delgamuukw, at paras 80-82. The trial judge interrogated himself on the scope of the March 10, 1760 text. He thus asked himself the wrong question. His 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. Had the trial judge not given undue weight to the March 10, 1760 document, his conclusions might have been very different.
21. The Court of Appeal, with respect, compounded the errors of law. It not only read the Mi’kmaq ‘right’, such as it was, out of the trial judgment, it also took the view, at p 204, that the principles of interpretation of Indian treaties developed in connection with land cessions are of ‘limited specific assistance’ to treaties of peace and friendship where ‘the significant “commodity” exchanged was mutual promises of peace’. While it is true that there is no applicable land cession treaty in Nova Scotia, it is also true that the Mi’kmaq were largely dispossessed of their lands in any event, and (as elsewhere) assigned to reserves to accommodate the wave of European settlement which the Treaty of 1760 was designed to facilitate. It seems harsh to put aboriginal people in a worse legal position where land has been taken without their formal cession than where they have agreed to terms of cession. A deal is a deal. The same rules of interpretation should apply. If, as I believe, the courts below erred as a matter of law in these respects, it is open to an appellate court to correct the errors in an appeal under s 830 of the Criminal Code, RSC, 1985, c C46.
22. I propose to review briefly the documentary record to emphasise and amplify certain aspects of the trial judge’s findings. He accepted in general the evidence of the Crown’s only expert witness, Dr Stephen Patterson, a Professor of History at the University of New Brunswick, who testified at length about what the trial judge referred to (at para 116) as British encouragement of the Mi’kmaq ‘hunting, fishing and gathering lifestyle’. That evidence puts the trade clause in context, and answers the question whether there was something more to the treaty entitlement than merely the right to bring fish and wildlife to truckhouses.
23. I take the following points from the matters particularly emphasised by the trial judge at para 90 following his thorough review of the historical background:
(1) The 1760-61 treaties were the culmination of more than a decade of intermittent hostilities between the British and the Mi’kmaq. Hostilities with the French were also prevalent in Nova Scotia throughout the 1750s, and the Mi’kmaq were constantly allied with the French against the British.
(2) The use of firearms for hunting had an important impact on Mi’kmaq society ...
(3) The French frequently supplied the Mi’kmaq with food and European trade goods ...
(6) The British wanted peace and a safe environment for their current and future settlers ...
24. Shortly after the fall of Louisburg in June, 1758, the British commander sent emissaries to the Mi’kmaq, through the French missionary, Father Maillard (who served as translator at the subsequent negotiations), holding out an offer of the enjoyment of peace, liberty, property, possessions and religion.
...
25. In the harsh winter of 1759-1760, so many Mi’kmaq turned up at Louisbourg seeking sustenance that the British Commander expressed concern that unless their demand for necessaries was met, they would become ‘very troublesome’ and ‘entirely put a stop to any settling or fishing all along the Coast’ or indeed ‘the settlement of Nova Scotia’ generally. This is stated in the dispatch from the Governor at Louisbourg, BrigadierGeneral Edward Whitmore to General Jeffrey Amherst, based in New York, who commanded the British forces in North America.
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It is apparent that the British saw the Mi’kmaq trade issue in terms of peace (as the Crown expert Dr Stephen Patterson testified, ‘people who trade together do not fight, that was the theory’). Peace was bound up with the ability of the Mi’kmaq people to sustain themselves economically. Starvation breeds discontent. The British certainly did not want the Mi’kmaq to become an unnecessary drain on the public purse of the colony of Nova Scotia or of the Imperial purse in London, as the trial judge found. To avoid such a result, it became necessary to protect the traditional Mi’kmaq economy, including hunting, gathering and fishing.
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The same strategy of economic aboriginal self-sufficiency was pursued across the prairies in terms of hunting.
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27. The trial judge found as a fact, at para 108, that the relevant Mi’kmaq treaty did ‘make peace upon the same conditions’ as the Maliseet and Passamaquody. Meetings took place between the Crown and the Maliseet and the Passamaquody on February 11, 1760, 12 days before these bands signed their treaty with the British and 18 days prior to the meeting between the Governor and the Mi’kmaq representatives, Paul Laurent of LaHave and Michel Augustine of the Richebucto region, where the terms of the Maliseet and Passamaquody treaties were ‘communicated’ and accepted.
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29. The genesis of the Mi’kmaq trade clause is therefore found in the Governor’s earlier negotiations with the Maliseet and Passamaquody First Nations.
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30. It is true, as my colleague points out at para 97, that the British made it clear from the outset that the Mi’kmaq were not to have any commerce with ‘any of His Majesty’s Enemies’. A Treaty of Peace and Friendship could not be otherwise. The subject of trading with the British government as distinguished from British settlers, however, did not arise until after the Indians had first requested truckhouses. The limitation to government trade came as a response to the request for truckhouses, not the other way around.
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32. In furtherance of this trade arrangement, the British established six truckhouses following the signing of the treaties in 1760 and 1761, including Chignecto, Lunenburg, St John, Windsor, Annapolis and ‘the Eastern Battery’ along the coast from Halifax.
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34. By 1762, Garrish was removed and the number of truckhouses was reduced to three. By 1764, the system itself was replaced by the impartial licensing of private traders approved by the London Board of Trade’s ‘Plan for the Future Management of Indian Affairs’, but that eventually died out as well, as mentioned earlier.
35. In my view, all of this evidence, reflected in the trial judgment, demonstrates the inadequacy and incompleteness of the written memorial of the treaty terms by selectively isolating the restrictive trade covenant. Indeed, the truckhouse system offered such advantageous terms that it hardly seems likely that Mi’kmaq traders had to be compelled to buy at lower prices and sell at higher prices. At a later date, they objected when truckhouses were abandoned. 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 wildlife to trade. This was confirmed by the expert historian called by the Crown, as set out below.
36. The courts have attracted a certain amount of criticism from professional historians for what these historians see as an occasional tendency on the part of judges to assemble a ‘cut and paste’ version of history.
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37. While the tone of some of this criticism strikes the non-professional historian as intemperate, the basic objection, as I understand it, is that the judicial selection of facts and quotations is not always up to the standard demanded of the professional historian, which is said to be more nuanced. Experts, it is argued, are trained to read the various historical records together with the benefit of a protracted study of the period, and an appreciation of the frailties of the various sources. The law sees a finality of interpretation of historical events where finality, according to the professional historian, is not possible. The reality, of course, is that the courts are handed disputes that require for their resolution the finding of certain historical facts. The litigating parties cannot await the possibility of a stable academic consensus. The judicial process must do as best it can. In this particular case, however, there was an unusual level of agreement amongst all of the professional historians who testified about the underlying expectations of the participants regarding the treaty obligations entered into by the Crown with the Mi’kmaq.
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While the trial judge was not bound to accept the whole or any particular part of Dr Patterson’s evidence, even if supported by the other experts, I do not think there was any basis in the evidence for the trial judge to find (at para 29) that the appellant’s claim, to the extent it tracked Dr Patterson’s evidence, was ‘not even among “various possible interpretations of the common intention”’ of the parties when they entered into the 1760 Treaty. Lamer CJ in Sioui, supra, at p 1069, it will be recalled, said it was the Court’s duty to search amongst such reasonable interpretations for the one that best accommodates the interests of the parties at the time the treaty was signed. The trial judge erred, I think, because he thought he was boxed in by the March 10, 1760 document.
40. In my view, the Nova Scotia judgments erred in concluding that the only enforceable treaty obligations were those set out in the written document of March 10, 1760, whether construed flexibly (as did the trial judge) or narrowly (as did the Nova Scotia Court of Appeal). The findings of fact made by the trial judge taken as a whole demonstrate that the concept of a disappearing treaty right does justice neither to the honour of the Crown nor to the reasonable expectations of the Mi’kmaq people. It is their common intention in 1760 — not just the terms of the March 10, 1760 document — to which effect must be given.
41. Having concluded that the written text is incomplete, it is necessary to ascertain the treaty terms not only by reference to the fragmentary historical record, as interpreted by the expert historians, but also in light of the stated objectives of the British and Mi’kmaq in 1760 and the political and economic context in which those objectives were reconciled.
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43. The law has long recognized that parties make assumptions when they enter into agreements about certain things that give their arrangements efficacy. Courts will imply a contractual term on the basis of presumed intentions of the parties where it is necessary to assure the efficacy of the contract, for example, where it meets the ‘officious bystander test’: MJB Enterprises Ltd v Defence Construction (1951) Ltd, [1999] 1 SCR 619, at para 30. (See also: The ‘Moorcock’ (1889), 14 PD 64; Canadian Pacific Hotels Ltd v Bank of Montreal [1987] 1 SCR 711; and see generally: Waddams, supra, at para 490; Treitel, supra, at pp 190-94.) Here, if the ubiquitous officious bystander had said, ‘This talk about truckhouses is all very well, but if the Mi’kmaq are to make these promises, will they have the right to hunt and fish to catch something to trade at the truckhouses?’, the answer would have to be, having regard to the honour of the Crown, ‘Of course’. 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.
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44. An example of the Court’s recognition of the necessity of supplying the deficiencies of aboriginal treaties is Sioui, supra, where Lamer J (as he then was) considered a treaty document that stated simply that the Huron tribe ‘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’. Lamer J found that, in order to give real value and meaning to these words, it was necessary that a territorial component be supplied, as follows, at p 1067:
The treaty gives the Hurons the freedom to carry on their customs and their religion. No mention is made in the treaty itself of the territory over which these rights may be exercised. There is also no indication that the territory of what is now Jacques-Cartier Park was contemplated. However, for a freedom to have real value and meaning, it must be possible to exercise it somewhere.
Similarly, in Sundown, supra, the Court found that the express right to hunt included the implied right to build shelters required to carry out the hunt. See also Simon, supra, where the Court recognized an implied right to carry a gun and ammunition on the way to exercise the right to hunt. These cases employed the concept of implied rights to support the meaningful exercise of express rights granted to the first nations in circumstances where no such implication might necessarily have been made absent the sui generis nature of the Crown’s relationship to aboriginal people. While I do not believe that in ordinary commercial situations a right to trade implies any right of access to things to trade, I think the honour of the Crown requires nothing less in attempting to make sense of the result of these 1760 negotiations.
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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.
49. This appeal puts to the test the principle, emphasised by this Court on several occasions, that the honour of the Crown is always at stake in its dealings with aboriginal people. This is one of the principles of interpretation set forth in Badger, supra, by Cory J, at para 41:
... the honour of the Crown is always at stake in its dealings with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of ‘sharp dealing’ will be sanctioned.
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Further, if there is any ambiguity in the words or phrases used, not only should the words be interpreted as against the framers or drafters of such treaties, but such language should not be interpreted or construed to the prejudice of the Indians if another construction is reasonably possible: R v White and Bob (1964), 50 DLR (2d) 613 at p 652 (BCCA); affirmed [1965] SCR vi.
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52. I do not think an interpretation of events that turns a positive Mi’kmaq trade demand into a negative Mi’kmaq covenant is consistent with the honour and integrity of the Crown. Nor is it consistent to conclude that the Lieutenant- 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. This was not a commercial contract. The trade arrangement must be interpreted in a manner which gives meaning and substance to the promises made by the Crown. In my view, with respect, the interpretation adopted by the courts below left the Mi’kmaq with an empty shell of a treaty promise.
53. The appellant argues that the Crown has been in breach of the treaty since 1762, when the truckhouses were terminated, or at least since the 1780s when the replacement system of licensed traders was abandoned. This argument suffers from the same quality of unreasonableness as does the Crown’s argument that the treaty left the Mi’kmaq with nothing more than a negative covenant. It was established in Simon, supra, at p 402, that treaty provisions should be interpreted ‘in a flexible way that is sensitive to the evolution of changes in normal’ practice, and Sundown, supra, at para 32, confirms that courts should not use a ‘frozen in time’ approach to treaty rights. The appellant cannot, with any show of logic, claim to exercise his treaty rights using an outboard motor while at the same time insist on restoration of the peculiar 18th century institution known as truckhouses.
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56. My view is that 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.
57. The Crown expresses the concern that recognition of the existence of a constitutionally entrenched right with, as here, a trading aspect, would open the floodgates to uncontrollable and excessive exploitation of the natural resources.
...
The ultimate fear is that the appellant, who in this case fished for eels from a small boat using a fyke net, could lever the treaty right into a factory trawler in Pomquet Harbour gathering the available harvest in preference to all non-aboriginal commercial or recreational fishermen. (This is indeed the position advanced by the intervener Union of New Brunswick Indians.) This fear (or hope) is based on a misunderstanding of the narrow ambit and extent of the treaty right.
58. The recorded note of February 11, 1760 was that ‘there might be a Truckhouse established for the furnishing them with necessaries’. What is contemplated therefore 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.
59. The concept of ‘necessaries’ is today equivalent to the concept of what Lambert JA, in R v Van der Peet (1993), 80 BCLR (2d) 75 (CA), at p 126, described as a ‘moderate livelihood’. Bare subsistence has thankfully receded over the last couple of centuries as an appropriate standard of life for aboriginals and non-aboriginals alike. A moderate livelihood includes such basics as ‘food, clothing and housing, supplemented by a few amenities’, but not the accumulation of wealth (Gladstone, supra, at para 165). It addresses day to day needs. This was the common intention in 1760. It is fair that it be given this interpretation today.
...
61. 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. In that case, the regulations would accommodate the treaty right. Such regulations would not constitute an infringement that would have to be justified under the Badger standard.
62. The appellant is charged with three offences: the selling of eels without a licence, fishing without a licence and fishing during the close season with illegal nets. These acts took place at Pomquet Harbour, Antigonish County. For Marshall to have satisfied the regulations, he was required to secure a licence under either the Fishery (General) Regulations SOR/92-53, as am, the Maritime Provinces Fishery Regulations SOR/93-55, or the Aboriginal Communal Fishing Licences Regulations SOR/93-332.
63. All of these regulations place the issuance of licences within the absolute discretion of the Minister.
...
There was nothing at that time which provided the Crown officials with the ‘sufficient directives’ necessary to ensure that the appellant’s treaty rights would be respected. To paraphrase Adams, at para 51, under the applicable regulatory regime, the appellant’s exercise of his treaty right to fish and trade for sustenance was exercisable only at the absolute discretion of the Minister. Mi’kmaq treaty rights were not accommodated in the regulations because, presumably, the Crown’s position was, and continues to be, that no such treaty rights existed. In the circumstances, the purported regulatory prohibitions against fishing without a licence (Maritime Provinces Fishery Regulations s 4(1)(a)) and of selling eels without a licence (Fishery (General) Regulations s 35(2)) do prima facie infringe the appellant’s treaty rights under the Treaties of 1760-61 and are inoperative against the appellant unless justified under the Badger test.
65. Further, the appellant was charged with fishing during the close season with improper nets, contrary to s 20 of the Maritime Provinces Fishery Regulations. Such a regulation is also a prima facie infringement, as noted by Cory J in Badger, supra, at para 90: ‘This Court has held on numerous occasions that there can be no limitation on the method, timing and extent of Indian hunting under a Treaty’, apart, I would add, from a treaty limitation to that effect.
66. The appellant caught and sold the eels to support himself and his wife. Accordingly, the close season and the imposition of a discretionary licensing system would, if enforced, interfere with the appellant’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 appellant is entitled to an acquittal.
67. The constitutional question stated by the Chief Justice on February 9, 1998, as follows:
Are the prohibitions on catching and retaining fish without a licence, on fishing during the close time, and on the unlicensed sale of fish, contained in ss 4(1)(a) and 20 of the Maritime Provinces Fishery Regulations and s 35(2) of the Fishery (General) Regulations, inconsistent with the treaty rights of the appellant contained in the Mi’kmaq Treaties of 1760-61 and therefore of no force or effect or application to him, by virtue of ss 35(1) and 52 of the Constitution Act 1982?
should be answered in the affirmative. I would therefore allow the appeal and order an acquittal on all charges.?
[1] The full text of this judgment is available at <www.droit.montreal.ca/doc/csc-scc/en/rec/html/marshal2.en.html>.
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