[1985] 2 S.C.R. Simon v. The Queen 387
James Matthew Simon Appellant;
and
Her Majesty The Queen Respondent;
and
The Union of New Brunswick Indians, Inc., the Native Council of Nova Scotia, Attorney
General of Canada, Attorney General for Ontario and Attorney General for New
Brunswick Interveners.
File No.: 17006.
1984: October 23; 1985: November 21.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Wilson and Le Dain JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA
Indians -- Treaty rights -- Right to hunt -- Provincial law restricting that right -- Whether
or not treaty rights prevail -- Indian Act, R.S.C. 1970, c. I-6, s. 88 -- Lands and Forests
Act, R.S.N.S. 1967, c. 163, s. 150(1) -- Constitution Act, 1982, s. 35.
Appellant, 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. Although
appellant 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 that Treaty stated
that the Micmacs have "free liberty of Hunting & Fishing as usual" and 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. At issue
here was whether or not appellant enjoys hunting rights, pursuant to the Treaty of 1752
and s. 88 of the Indian Act, which preclude his prosecution for certain offences under the
Lands and Forests Act.
Held: The appeal should be allowed.
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 did
not negate or minimize the significance of the rights protected by the Treaty. Although
the right to hunt was not absolute, to be effective, 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. Furthermore, nothing in the British conduct subsequent to the
conclusion of the Treaty or in the hostilities of 1753 indicated that the Crown considered
SNIPPETS:
and The Union of New Brunswick Indians, Inc., the Native Council of Nova Scotia, Attorney
ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA
Indians -- Treaty rights -- Right to hunt -- Provincial law restricting that right -- Whether
Appellant, a registered Micmac Indian, was convicted under s.
150of Nova Scotia's Lands and Forests Act for possession of a rifle and shotgun cartridges.
Although appellant admitted all essential elements of the charges, it was argued that the
88 of the Indian Act, offered him immunity from prosecution under the provincial act.
The Court of Appeal upheld the trial judge's ruling that the Treaty of 1752 did not exempt
Both Governor Hopson and the Micmac had the capacity to enter into the Treaty of 1752 and did
The Treaty constitutes a positive source of protection against infringements on hunting
Although the right to hunt was not absolute, to be effective, it had to include reasonably
He was a registered Micmac Indian living in the same area as the original Micmac Indian tribe
Appellant's possession of a rifle and ammunition in a safe manner was referable to his treaty
Section 88 of the Indian Act, which applies only to provincial legislation, operates to
35 of the Constitution Act,
Robert E. Lutes and Brian Norton, for the respondent.
Graydon Nicholas, for the intervener the Union of New Brunswick Indians, Inc. J. P. Merrick,
88 of the Indian Act, R.S.C. 1970, c. I-6, the appellant, James Matthew Simon, enjoys hunting
The appellant James Matthew Simon is a registered Indian under the Indian Act and an adult
Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of
The appellant maintained that the alleged hostilities were sporadic and minor in nature and
Given the serious and far-reaching consequences of a finding that a treaty right has been
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