Simon, a registered Micmac Indian, was convicted under s.150(1) of Nova Scotia's Lands and Forests Act for possession of a rifle and shotgun cartridges with shot larger than AAA. Although Simon admitted all essential elements of the charges, it was argued that the right to hunt set out in the Treaty of 1752, in combination with s.88 of the Indian Act, offered him immunity from prosecution under the provincial act. Article 4 of the Treaty stated that the Micmacs have "free liberty of Hunting & Fishing as usual" and Treaty of 1752, in combination with s.88 provided that provincial laws of general application applied to Indians, subject to the terms of any treaty. The Court of Appeal upheld the trial judge's ruling that the Treaty of 1752 did not exempt appellant from the provisions of the provincial Lands and Forests Act.
- Was the Treaty of 1752 validly created by competent parties?
- Does the Treaty contain a right to hunt and what is the nature and scope of this right?
- Has the Treaty been terminated or limited?
- Is the appellant covered by the Treaty?
- Is the Treaty a "treaty" within the meaning of s. 88 of the Indian Act?
- Do the hunting rights contained in the Treaty exempt the appellant from prosecution under s. 150(1) of the Lands and Forests Act?
Appeal allowed, conviction quashed.
The unanimous court held that both Governor Hopson and the Micmac had the capacity to enter into the Treaty of 1752 and did so with the intention of creating mutually binding obligations. The Treaty constitutes a positive source of protection against infringements on hunting rights and the fact that these rights existed before the Treaty as part of the general aboriginal title does not negate or minimize the significance of the rights protected by the Treaty. Although the right to hunt was not absolute, it had to include reasonably incidental activities, such as travelling with the necessary equipment to the hunting grounds and possessing a hunting rifle and ammunition in a safe manner.
The Treaty of 1752 continues to be in force and effect. The principles of international treaty law relating to treaty termination were not determinative because an Indian treaty is unique and sui generis. Nothing in the British conduct subsequent to the conclusion of the Treaty or in the hostilities of 1753 indicated that the Crown considered the terms of the Treaty terminated, nor was it demonstrated that the hunting rights protected by the Treaty have been extinguished. The court expressed no view whether, as a matter of law, treaty rights can be extinguished.
As Simon was a registered Micmac Indian living in the same area as the original Micmac Indian tribe which was a party to the Treaty, this is sufficient evidence to prove the appellant's connection to that tribe. In light of the Micmac tradition of not committing things to writing, to require more, such as proving direct descendancy, would be impossible and render nugatory any right to hunt that a present day Micmac would otherwise have.
The Treaty of 1752 is an enforceable obligation between the Indians and the Crown and is therefore within the meaning of s.88 of the Indian Act.
Finally, Simon's possession of a rifle and ammunition in a safe manner was referable to his treaty right to hunt and was not restricted by s.150(1) of the Lands and Forests Act. Section 88 of the Indian Act, which applies only to provincial legislation, operates to exempt Indians from legislation restricting or contravening a term of any treaty and thus must prevail over s.150(1) of the Lands and Forests Act.
Aboriginal treaty rights may offer a justification against offences of provincial jurisdiction.