R. v. Sioui

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."

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?

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 Indians is unique, that it is an agreement sui generis which is neither created nor terminated according to the rules of international law. In that case the accused had relied on an agreement concluded in 1752 between Governor Hopson and the Micmac Chief Cope, and the Crown disputed that this was a treaty. The following are two extracts illustrating the reasons relied on by the Chief Justice in concluding that a treaty had been concluded between the Micmacs and the British Crown (at pp. 401 and 410):

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 Treaty was an exchange of solemn promises between the Micmacs and the King's representative entered into to achieve and guarantee peace. It is an enforceable obligation between the Indians and the white man and, as such, falls within the meaning of the word "treaty" in s. 88 of the Indian Act.

From these extracts it is clear that what characterizes a treaty is the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity. In the Court of Appeal Bisson J.A. in fact adopted a similar approach when he wrote (at p. 1726):

[TRANSLATION] I feel that in order to determine whether document D‑7 [the document of September 5, 1760] is a treaty within the meaning of s. 88 of the Indian Act, the fundamental question is as follows: is it an agreement in which the contracting parties . . . intended to create mutual obligations which they intended to observe solemnly?

In White and Bob, supra, Norris J.A. also discussed the nature of a treaty under the Indian Act. As he mentioned in the passage I have already quoted, the word "treaty" is not a term of art. It merely identifies agreements in which the "word of the white man" is given and by which the latter made certain of the Indians' co‑operation. Norris J.A. also wrote at p. 649:

In view of the argument before us, it is necessary to point out that on numerous occasions in modern days, rights under what were entered into with Indians as solemn engagements, although completed with what would now be considered informality, have been whittled away on the excuse that they do not comply with present day formal requirements and with rules of interpretation applicable to transactions between people who must be taken in the light of advanced civilization to be of equal status. Reliance on instances where this has been done is merely to compound injustice without real justification at law. The transaction in question here was a transaction between, on the one hand, the strong representative of a proprietary company under the Crown and representing the Crown, who had gained the respect of the Indians by his integrity and the strength of his personality and was thus able to bring about the completion of the agreement, and, on the other hand, uneducated savages. The nature of the transaction itself was consistent with the informality of frontier days in this Province and such as the necessities of the occasion and the customs and illiteracy of the Indians demanded . . . The unusual (by the standards of legal draftsmen) nature and form of the document considered in the light of the circumstances on Vancouver Island in 1854 does not detract from it as being a "Treaty".

This lengthy passage brings out the importance of the historical context, including the interpersonal relations of those involved at the time, in trying to determine whether a document falls into the category of a treaty under s. 88 of the Indian Act. It also shows that formalities are of secondary importance in deciding on the nature of a document containing an agreement with the Indians.

The decision of the Ontario Court of Appeal in R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 227, also provides valuable assistance by listing a series of factors which are relevant to analysis of the historical background. In that case the Court had to interpret a treaty, and not determine the legal nature of a document, but the factors mentioned may be just as useful in determining the existence of a treaty as in interpreting it. In particular, they assist in determining the intent of the parties to enter into a treaty. Among these factors are:

1. continuous exercise of a right in the past and at present,

2. the reasons why the Crown made a commitment,

3. the situation prevailing at the time the document was signed,

4.evidence of relations of mutual respect and esteem between the negotiators, and

5. the subsequent conduct of the parties.

2. Analysis of the Document in Light of These Factors

(a) Wording

Bisson J.A. of the Court of Appeal felt that the document of September 5, 1760 was a treaty because there was no need to include a reference to religion and customs in a mere safe conduct. In view of the presence of protection for certain "fundamental" rights, the document of September 5, 1760 was thus a treaty within the meaning of s. 88 of the Indian Act.

Several aspects of the wording of the document are consistent with the appellant's position that it was an act of surrender and a safe conduct rather than a treaty. The following is a brief review of the appellant's five main arguments in this regard. First, the document opens with the words "THESE are to certify that . . .", which would suggest that the document in question is a certificate or an acknowledgement of the Hurons' surrender, made official by Murray in order to inform the British troops. Bisson J.A. gave these introductory words an interpretation more favourable to the Hurons: the Hurons did not know how to write and the choice of words only makes it clear that the document of September 5, 1760 recorded an oral treaty.

Second, General Murray used expressions which appear to involve him only personally, which do not suggest that he was acting as a representative of the British Crown. Thus, the following expressions are used:

1. "having come to me",

2. "has been received under my Protection",

3. "By the Genl's Command".

Although the Hurons had surrendered to His Britannic Majesty, wording the document in this way could tend to show that Murray intended only to give his personal undertaking to protect the Hurons, without thereby binding the British Crown in the long term. Murray, it is argued, had only offered the Hurons military protection and had no intention of entering into a treaty.

Thirdly, the orders given to British soldiers stationed in Canada ("no English Officer or party is to molest, or interrupt them in returning to their Settlement at LORETTE . . . recommending it to the Officers commanding the Posts, to treat them kindly . . . By the Genl's Command") would more naturally form part of a document such as a safe conduct or pass than of a treaty.

These points bring out the unilateral aspect of the document of September 5: it could be an administrative document issued by General Murray, recognizing that the Hurons had laid down their arms and giving orders to British soldiers accordingly. Finally, the document was signed only by the General's representative with no indication that it had been assented to by the Hurons' in one way or another. The main purpose of the document is thus, it is argued, to recognize the surrender, and what was more important to the Hurons, allow them to return to Lorette safely without fear of being mistaken for enemies by British soldiers they might meet along the way.

Fourth, the reference to a specific event, namely the return journey to Lorette, as opposed to a document recognizing rights in perpetuity or without any apparent time limit, could show that the purpose of this document was not to settle long‑term relations between the Hurons and the British. The temporary and specific nature of the document would indicate that the parties did not intend to enter into a treaty.

Fifth, the document does not possess the formality which is usually to be found in the wording of a treaty. First, it is not the General himself who signed the document, but his adjutant on his behalf. Second, the language used in the document does not have the formalism generally accompanying the signature of a treaty with Indians. Here, for example, are extracts from the treaty at issue in Simon (at pp. 392‑93 and 395):

Treaty or

Articles of Peace and Friendship Renewed between

His Excellency Peregrine Thomas Hopson Esquire Captain General and Governor in Chief in and over His Majesty's Province of Nova Scotia or Acadie. Vice Admiral of the same & Colonel of one of His Majesty's Regiments of Foot, and His Majesty's Council on behalf of His Majesty.

and

Major Jean Baptiste Cope, chief Sachem of the Tribe of Mick Mack Indians Inhabiting the Eastern Coast of the said Province, and Andrew Hadley Martin, Gabriel Martin & Francis Jeremiah, Members and Delegates of the said Tribe, for themselves and their said Tribe their Heirs, and the Heirs of their Heirs forever, Begun made and concluded in the manner, form and Tenor following, vizt:

. . .

In Faith and Testimony whereof, the Great Seal of the Province is hereunto Appended, and the party's to these presents have hereunto interchangeably Set their Hands in the Council Chamber at Halifax this 22nd day of Nov. 1752, in the Twenty sixth year of His Majesty's Reign.

The appellant argues that the Hurons did not formalize the document either by their signature (which would not be absolutely necessary to make it a treaty) or by the use of necklaces or belts of shells which were the traditional method used by the Hurons to formalize agreements at the time. Clearly, this argument has weight only if the document accurately indicates all the events surrounding the signature. Otherwise, extrinsic proof of solemnities could help to show that the parties intended to enter into a formal agreement and that they manifested this intent in one way or another.

While the analysis thus far seems to suggest that the document of September 5 is not a treaty, the presence of a clause guaranteeing the free exercise of religion, customs and trade with the English cannot but raise serious doubts about this proposition. It seems extremely strange to me that a document which is supposedly only a temporary, unilateral and informal safe conduct should contain a clause guaranteeing rights of such importance. As Bisson J.A. noted in the Court of Appeal judgment, there would have been no necessity to mention the free exercise of religion and customs in a document the effects of which were only to last for a few days. Such a guarantee would definitely have been more natural in a treaty where "the word of the white man" is given.

The appellant and the Attorney General of Canada put forward certain explanations for the presence of such guarantees in the document:

1. the free exercise of religion and customs was part of the protection under which General Murray received the Hurons;

2. the free exercise of religion and customs is mentioned because these benefits had been conferred on Canadians laying down their arms earlier.

As this Court recently noted in R. v. Horse, [1988] 1 S.C.R. 187, at p. 201, extrinsic evidence is not to be used as an aid to interpreting a treaty in the absence of ambiguity or where the result would be to alter its terms by adding words to or subtracting words from the written agreement. This rule also applies in determining the legal nature of a document relating to the Indians. However, a more flexible approach is necessary as the question of the existence of a treaty within the meaning of s. 88 of the Indian Act is generally closely bound up with the circumstances existing when the document was prepared (White and Bob, supra, at pp. 648‑49, and Simon, supra, at pp. 409‑10). In any case, the wording alone will not suffice to determine the legal nature of the document before the Court. On the one hand, we have before us a document the form of which and some of whose subject‑matter suggest that it is not a treaty, and on the other, we find it to contain protection of fundamental rights which supports the opposite conclusion. The ambiguity arising from this document thus means that the Court must look at extrinsic evidence to determine its legal nature.

(b) Extrinsic Evidence

It was suggested that the Court examine three types of extrinsic evidence to assist it in determining whether the document of September 5 is a treaty. First, to indicate the parties' intent to enter into a treaty, the Court was offered evidence to present a picture of the historical context of the period. Then, evidence was presented of certain facts closely associated with the signing of the document and relating to the existence of the various constituent elements of a treaty. Finally, still with a view to determining whether the parties intended to enter into a treaty, the Court was told of the subsequent conduct of the parties in respect of the document of September 5, 1760.

I should first mention that the admissibility of certain documents submitted by the intervener the National Indian Brotherhood/Assembly of First Nations in support of its arguments was contested. The intervener was relying on documents that were not part of the record in the lower courts. The appellant agreed that certain of these documents, namely Murray's Journal, letters and instructions, should be included in the record provided this Court considered that their admissibility was justified by the concept of judicial notice. I am of the view that all the documents to which I will refer, whether my attention was drawn to them by the intervener or as a result of my personal research, are documents of a historical nature which I am entitled to rely on pursuant to the concept of judicial knowledge. As Norris J.A. said in White and Bob (at p. 629):

The Court is entitled "to take judicial notice of the facts of history whether past or contemporaneous" as Lord du Parcq said in Monarch Steamship Co., Ld. v. Karlshamns Oljefabriker (A/B), [1949] A.C. 196 at p. 234, [1949] 1 All E.R. 1 at p. 20, and it is entitled to rely on its own historical knowledge and researches, Read v. Bishop of Lincoln, [1892] A.C. 644, Lord Halsbury, L.C., at pp. 652‑4.

The documents I cite all enable the Court, in my view, to identify more accurately the historical context essential to the resolution of this case.

The appellant argues that the historical context at the time the document of September 5 was concluded shows that the parties had no intention to enter into a treaty. The respondents and the intervener the National Indian Brotherhood/Assembly of First Nations, on the other hand, maintain that the historical background to this document supports the existence of a common intent to sign a treaty.

On September 5, 1760, France and England were engaged in a war begun four years earlier, which ended with the Treaty of Paris signed on February 10, 1763. About a year earlier, the battle of the Plains of Abraham had allowed the British to take control of Québec City and the surrounding area. During the year following this victory, British troops had worked to consolidate their military position in Canada and to solve the supply and other practical problems engendered by the very harsh winter of 1759.

In his work An Historical Journal of the Campaigns in North‑America for the Years 1757, 1758, 1759 and 1760 (1769), vol. II, at p. 382 (day of September 3, 1760), Captain Knox also relates the efforts of General Murray to win the loyalty of the Canadians. General Murray at that time invited French soldiers to surrender and Canadians to lay down their arms. He had made it widely known that he would pardon those who surrendered and allow them to keep their land. He had also promised them that he would make larger grants of land and protect them. He gave those who responded to his appeal and took the oath of allegiance to the British Crown safe conducts to return to their parishes. Steps were also taken to inform the Indians who were allies of the British of these changes of allegiance so as to ensure that they would not be attacked on the way back.

As the advantageous position and strength of the British troops became more and more apparent, several groups did surrender and it appears that this movement accelerated in the days preceding that on which the document at issue was signed. In his Historical Journal, at the entries for September 1, 2 and 3, 1760, Knox indicates that:

The whole parish of Varenne have surrendered, delivered up their arms, and taken the oaths; their fighting‑men consisted of five companies of militia: two other parishes, equally numerous, have signified their intentions of submitting to‑morrow.

. . .

The Canadians are surrendering every‑where; they are terrified at the thoughts of Sir William Johnson's Indians coming among them, by which we conjecture they are near at hand.

. . .

The regulars now desert to us in great numbers, and the Canadian militia are surrendering by hundreds.

In fact, the total defeat of France in Canada was very near: the Act of Capitulation of Montreal, by which the French troops stationed in Canada laid down their arms, was signed on September 8, 1760 and signalled the end of France's de facto control in Canada.

Great Britain's de jure control of Canada took the form of the Treaty of Paris of February 10, 1763, a treaty which inter alia ensured that the "Inhabitants of Canada" would be free to practise the Roman Catholic religion. Some months later, the Royal Proclamation of October 7, 1763 organized the territories recently acquired by Great Britain and reserved two types of land for the Indians: that located outside the colony's territorial limits and the establishments authorized by the Crown inside the colony.

From the historical situation I have just briefly outlined the appellant deduced that the document at issue is only a capitulation and that the legal nature of such a document should not be construed differently depending on whether it relates to the Indians or to the French. The Court has before it, he submitted, only a capitulation comparable to a capitulation of French soldiers or Canadians, which cannot be elevated to the category of a treaty within the meaning of s. 88 of the Indian Act simply because an Indian tribe was a party to it. In other words, as Murray signed the same kind of document with respect to the Indians, the French or the Canadians his intent could not have been any different. The appellant also maintains that, like the capitulations of the Canadians and the French soldiers, this document was only temporary in nature in that its consequences would cease when the fate of Canada was finally settled at the end of the war.

I consider that, instead, we can conclude from the historical documents that both Great Britain and France felt that the Indian nations had sufficient independence and played a large enough role in North America for it to be good policy to maintain relations with them very close to those maintained between sovereign nations.

The mother countries did everything in their power to secure the alliance of each Indian nation and to encourage nations allied with the enemy to change sides. When these efforts met with success, they were incorporated in treaties of alliance or neutrality. This clearly indicates that the Indian nations were regarded in their relations with the European nations which occupied North America as independent nations. The papers of Sir William Johnson (The Papers of Sir William Johnson, 14 vol.), who was in charge of Indian affairs in British North America, demonstrate the recognition by Great Britain that nation‑to‑nation relations had to be conducted with the North American Indians. As an example, I cite an extract from a speech by Sir Johnson at the Onondaga Conference held in April 1748, attended by the Five Nations:

Brethren of the five Nations I will begin upon a thing of a long standing, our first Brothership. My Reason for it is, I think there are several among you who seem to forget it; It may seem strange to you how I a Foreigner should know this, But I tell you I found out some of the old Writings of our Forefathers which was thought to have been lost and in this old valuable Record I find, that our first Friendship Commenced at the Arrival of the first great Canoe or Vessel at Albany . . . [Emphasis added.]

(The Papers of Sir William Johnson, vol. I, 1921, at pp. 157-58.)

As the Chief Justice of the United States Supreme Court said in 1832 in Worcester v. State of Georgia, 31 U.S. (6 Pet.) 515 (1832), at pp. 548‑49, about British policy towards the Indians in the mid‑eighteenth century:

Such was the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all other Europeans; such her claims, and such her practical exposition of the charters she had granted: she considered them as nations capable of maintaining the relations of peace and war; of governing themselves, under her protection; and she made treaties with them, the obligation of which she acknowledged. [Emphasis added.]

Further, both the French and the English recognized the critical importance of alliances with the Indians, or at least their neutrality, in determining the outcome of the war between them and the security of the North American colonies.

Following the crushing defeats of the English by the French in 1755, the English realized that control of North America could not be acquired without the co‑operation of the Indians. Accordingly, from then on they made efforts to ally themselves with as many Indian nations as possible. The French, who had long realized the strategic role of the Indians in the success of any war effort, also did everything they could to secure their alliance or maintain alliances already established (J. Stagg, Anglo‑Indian Relations in North America to 1763 (1981); "Mr. Nelson's Memorial about the State of the Northern Colonies in America", September 24, 1696, reproduced in E. B. O'Callaghan, ed., Documents relative to the Colonial History of New York (1856), vol. VII, at p. 206*; "Letter from Sir William Johnson to William Pitt", October 24, 1760, in The Papers of Sir William Johnson, vol. III, 1921, at pp. 269 et seq.; "Mémoire de Bougainville sur l'artillerie du Canada", January 11, 1759, in Rapport de l'archiviste de la Province de Québec pour 1923‑1924 (1924), at p. 58; Journal du Marquis de Montcalm durant ses campagnes en Canada de 1756 à 1759 (1895), at p. 428).

England also wished to secure the friendship of the Indian nations by treating them with generosity and respect for fear that the safety and development of the colonies and their inhabitants would be compromised by Indians with feelings of hostility. One of the extracts from Knox's work which I cited above reports that the Canadians and the French soldiers who surrendered asked to be protected from Indians on the way back to their parishes. Another passage from Knox, also cited above, relates that the Canadians were terrified at the idea of seeing Sir William Johnson's Indians coming among them. This proves that in the minds of the local population the Indians represented a real and disturbing threat. The fact that England was also aware of the danger the colonies and their inhabitants might run if the Indians withdrew their co‑operation is echoed in the following documents: "Letter from Sir William Johnson to the Lords of Trade", November 13, 1763, reproduced in O'Callaghan, ed., op. cit., at pp. 574, 579 and 580**; "Letter from Sir William Johnson to William Pitt", October 24, 1760, in The Papers of Sir William Johnson, vol. III, at pp. 270 and 274; M. Ratelle, Contexte historique de la localisation des Attikameks et des Montagnais de 1760 à nos jours (1987); "Letter from Amherst to Sir William Johnson", August 30, 1760, in The Papers of Sir William Johnson, vol. X, 1951, at p. 177; "Instructions from George II to Amherst", September 18, 1758, National Archives of Canada (MG 18 L 4 file 0 20/8); C. Colden, The History of the Five Indian Nations of Canada (1747), at p. 180; Stagg, op. cit., at pp. 166‑67; and by analogy Governor Murray's Journal of the Siege of Quebec, entry of December 31, 1759, at pp. 15‑16.

This "generous" policy which the British chose to adopt also found expression in other areas. The British Crown recognized that the Indians had certain ownership rights over their land, it sought to establish trade with them which would rise above the level of exploitation and give them a fair return. It also allowed them autonomy in their internal affairs, intervening in this area as little as possible.

Whatever the similarities between a document recording the laying down of arms by French soldiers or Canadians and the document at issue, the analogy does not go so far as to preclude the conclusion that the document was nonetheless a treaty.

Such a document could not be regarded as a treaty so far as the French and the Canadians were concerned because under international law they had no authority to sign such a document: they were governed by a European nation which alone was able to represent them in dealings with other European nations for the signature of treaties affecting them. The colonial powers recognized that the Indians had the capacity to sign treaties directly with the European nations occupying North American territory. The sui generis situation in which the Indians were placed had forced the European mother countries to acknowledge that they had sufficient autonomy for the valid creation of solemn agreements which were called "treaties", regardless of the strict meaning given to that word then and now by international law. The question of the competence of the Hurons and of the French or the Canadians is essential to the question of whether a treaty exists. The question of capacity has to be examined from a fundamentally different viewpoint and in accordance with different principles for each of these groups. Thus, I reject the argument that the legal nature of the document at issue must necessarily be interpreted in the same way as the capitulations of the French and the Canadians. The historical context which I have briefly reviewed even supports the proposition that both the British and the Hurons could have intended to enter into a treaty on September 5, 1760. I rely, in particular, on Great Britain's stated wish to form alliances with as many Indians as possible and on the demoralizing effect for the French, the Canadians and their allies which would result from the loss of this long‑standing Indian ally whose allegiance to the French cause had until then been very seldom shaken.

Let us now turn to the second type of extrinsic evidence proposed by the parties, namely evidence relating to facts which were contemporaneous with or which occurred shortly before or after the signing of the document of September 5, 1760.

The respondents first presented evidence that the document of September 5, 1760 was the outcome of negotiations between Murray and certain Indian nations, including the Hurons, who wished to make peace with the British Crown. Knox's Journal reports the following events for September 6 (at p. 384):

Eight Sachems, of different nations, lately in alliance with the enemy, have surrendered, for themselves and their tribes, to General Murray: these fellows, after conferring with his Excellency, and that all matters had been adjusted to their satisfaction, stepped out to the beach opposite to Montreal, flourished their knives and hatchets, and set up the war‑shout; intimating to the French, that they are now become our allies and their enemies. While these Chieftains were negotiating a peace, two of our Mohawks entered the apartment where they were with the General and Colonel Burton . . . [Emphasis added.]

Although it is not entirely clear, Knox appears to be relating here events which took place the preceding day, on September 5. This interpretation is confirmed by the fact that Murray makes no reference in his Journal to any meeting with the Indians on the 6th but mentions one on the 5th, while Knox records no meeting with the Indians on the 5th. Both are thus probably speaking of the same meeting on September 5.

The foregoing passage shows that the document of September 5 was not simply an expression of General Murray's wishes, but the result of negotiations between the parties. This document was thus not simply a unilateral act, a simple acknowledgment or safe conduct, but the embodiment of an agreement reached between the representative of the British Crown and the representatives of the Indian nations present, including the representative of the Lorette Hurons.

Knox goes on to say that the Mohawks wanted to turn on the various Indian groups allied with the French who had just concluded peace with the British. Murray and Burton intervened and the Mohawks merely made threats against them. What is significant for purposes of this case is that these threats reflected the Mohawks' perception as to the nature of the agreement which had just been concluded between the eight Sachems and Murray. The Mohawks said the following (at p. 385):

Do you remember, when you treacherously killed one of our brothers at such a time? Ye shall one day pay dearly for it, ye cowardly dogs, -- let the treaty be as it will: -- I tell you, we will destroy you and your settlement. . . . [Emphasis added.]

The view taken by these Indians was apparently shared by Murray himself. The note written by Murray in his Journal, on September 5, 1760, indicates that he considered that a peace treaty had been concluded with the Indian nations in question:

Sepr. 5th. March'd with them myself and on the road, met the Inhabitants who were coming to deliver their arms, and take the oaths, there two nations of Indians, of Hurons and Iroquois, came in & made their Pace. . . . [Emphasis added.]

(Knox, Appendix to an Historical Journal or the Campaigns in North America for the Years 1757, 1758, 1759 and 1760 (1916), vol. III, at p. 831.)

The accounts given by Knox and Murray himself of the events on the days that are critical for this case are quite consistent with British policy, which favoured alliance or at least neutrality for the greatest number of the Indian nations in the newly conquered territories. By holding negotiations to conclude a peace treaty between the Hurons and the British, Murray was only giving effect to this clear policy of Great Britain.

The intervener the National Indian Brotherhood/Assembly of First Nations provided the Court with some very interesting evidence in this regard. It submitted the minutes of a conference between Sir William Johnson and the representatives of the Eight Nations, including the Lorette Hurons, held in Montréal on September 16, 1760 (The Papers of Sir William Johnson, vol. XIII, 1962, at p. 163). Although the appellant objected to the Court considering this document, I feel it is a reliable source which allows us to take cognizance of a historical fact. Its being submitted by the intervener does not in any way prevent the Court from taking judicial notice of it. Indeed, I can only express my appreciation to the intervener for facilitating my research.

The minutes of this conference refer in several places to the peace recently concluded between the Eight Nations and the English and their allies (at pp. 163‑64):

Br. Wy.

You desired of us to [see] deliver up your People who [may be] are still among us -- [We] As you have now settled all matters wth. us & we are become firm Friends. . . .

Br. W.

As we have now made a firm Peace wth. the Engsh. & ye. 6 Nats. we shall endeavour all in our Powr. to keep it inviolably . . . .

These words were spoken by spokesmen for the Eight Nations and clearly show that the Indians and Sir William Johnson considered that relations between these Indian nations and the British would now take the form of an alliance ("firm friends"). This new situation was undoubtedly the outcome of the peace concluded between the parties, a peace desired by the Eight Nations as well as the British (". . . we have now made a firm Peace with the English . . . .")

Finally, it is worth noting that each of the contributions made by spokesmen at this conference was followed by the presentation of a belt to solemnize the content of the undertakings that had just been made or the words which had just been spoken. As we saw earlier, the appellant contends that the document of September 5, 1760 is not a treaty, inter alia, because the tokens of solemnity that ordinarily accompanied treaties between the Indians and the British are not present. I think it is reasonable to conclude that the circumstances existing on September 5 readily explain the absence of such solemnities. Murray was not given notice of the meeting, and a fortiori its purpose, and it was therefore largely improvised. Murray also had very little time to spend on ceremony: his troops were moving towards Montréal and were on a war footing. He himself was busy organizing the final preparations for a meeting between his army and that of Amherst and Haviland in Montréal, for the purpose of bringing down this last significant French bastion in Canada. Although solemnities are not crucial to the existence of a treaty, I think it is in any case reasonable to regard the presentation of belts at the conference on September 16 as a solemn ratification of the peace agreement concluded a few days earlier.

Lastly, the Court was asked to consider the subsequent conduct of the parties as extrinsic evidence of their intent to enter into a treaty. I do not think this is necessary, since the general historical context of the time and the events closely surrounding the document at issue have persuaded me that the document of September 5, 1760 is a treaty within the meaning of s. 88 of the Indian Act. The fact that the document has allegedly not been used in the courts or other institutions of our society does not establish that it is not a treaty. Non‑user may very well be explained by observance of the rights contained in the document or mere oversight. Moreover, the subsequent conduct which is most indicative of the parties' intent is undoubtedly that which most closely followed the conclusion of the document. Eleven days after it was concluded, at the conference to which I have just referred, the parties gave a clear indication that they had intended to conclude a treaty.

I am therefore of the view that the document of September 5, 1760 is a treaty within the meaning of s. 88 of the Indian Act. At this point, the appellant raises two arguments against its application to the present case. First, he argues that the treaty has been extinguished. In the event that it has not been, he argues that the treaty is not such as to render ss. 9 and 37 of the Regulation respecting the Parc de la Jacques‑Cartier inoperative. Let us first consider whether on May 29, 1982, the date on which the respondents engaged in the activities which are the subject of the charges, the treaty still had any legal effects.

V - Legal Effects of Treaty of September 5, 1760 on May 29, 1982

The appellant argues that, assuming the document of September 5 is a treaty, it was extinguished by the following documents or events:

1.the Act of Capitulation of Montreal***, signed on September 8, 1760;

2. the Treaty of Paris signed on February 10, 1763;

3. the Royal Proclamation of October 7, 1763;

the legislative and administrative history of the Hurons' land; and

the effect of time and non‑user of the treaty.