C.A. No. C8006
COURT OF APPEAL FOR ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
COMPLAINANT
(RESPONDENT)
AND:
ELIZABETH VINCENT
DEFENDANT
(APPELLANT)
CHIEFS OF ONTARIO
INTERVENOR
FACTUM OF THE INTERVENOR CHIEFS OF ONTARIO
Peter W. Hutchins
Anjali Choksi
HUTCHINS, SOROKA & DIONNE
245 St. Jacques St. #400
Montreal, Quebec
H2Y 1M6
Telephone: (5 14) 849-2403
(5 14) 849-4907
Fax :
Telephone: (416) 777-6352
Fax:
(416) 861-0148
Solicitors for the Chiefs of Ontario
Agents for Chiefs of Ontario
Gowling, Strathy & Henderson
2 First Canadian Place
24th floor
Toronto, Ontario
M5X 1A4
Jacques Larochelle
BERTRAND LAROCHELLE
Avocats
1150 Claire Fontaine
Bureau 200
Quebec (Quebec)
G1R 5G4
Solicitors for the Appellant
Dogan Akman
DEPARTMENT OF JUSTICE, CANADA
239 Wellington, Suite 532
Ottawa (Ontario)
KIA OH8
Solicitor for the Respondent
PART I
STATEMENT OF FACTS
PART XI
POINTS IN ISSUE
PART rn
ARGUMENT
A.
This Appeal in its Juridical Context
B.
The Applicable Historical Facts
1.
Jay Treaty - Historical Context
2.
Jay Treaty - Contemporaneous Facts
3.
Jay Treaty - Subsequent Conduct of the Parties
The Law Applicable
1.
Intertemporal Rule
2.
International Law Applicable
3.
'Stipulations Pour Autrui'
The Treaty Rights Not Extinguished
1.
No Extinguishment Without First
Nations' Consent
2.
No Extinguishment Demonstrated
E.
a)
No Extinguishment Effected
by the Absence of Implementing
Legislation
b)
No Abrogation By the War of
1812-1814
c)
No Extinguishment by "Foreseeable
Radical Changes" in Circumstances
d)
No Renunciation by the Contracting
Parties
e)
Conclusion on extinguishment
Francis v. The Oueen
1.
F
A Not Authority for Extinguishment
2.
Francis Superseded
F.
Large and Liberal Interpretation Applies
G.
Section 35 Treaty Rights
H.
Contemporary Recognition and Affirmation
PART IV
ORDER SOUGHT
SCHEDULE A
TABLE OF AUTHORITIES
Factum of the Chiefs of Ontario
1.
Statement of Facts
Points in Issues
Argument
1
For the purposes of this Appeal, Intervenor Chiefs of Ontario (herekdkr "Intervenor
Chiefsw)adopts the facts as stated in the Agreed Statement of Facts.
PART II - POINTS IN ISSUE
2.
For Intervenor Chiefs the points in issue in this Appeal are:
5
a) Whether Art. III of the Jay Treaty as confirmed by the Explanatory Article, the
Treaty of Ghent and variqus Councils constitutes for aboriginal peoples dwelling "on
either side of the said Boundary Line" an existing treaty right recognized and affirmed
by s. 35 Constitution Act. 1982. Intervenor Chiefs submit that it does.
b) Whether on this Appeal Respondent has met the Sparrow test on justification of
interference with the exercise of Appellant's rights under s. 35 -tion
Act. 1982.
Intervenor Chiefs submit that she has not.
20
3.
As the international law scholar D.P. O'Connell observes while discussing the flawed
historical analysis of the growth of colonial dominion in America and Africa: "Bad history
made bad law". In the past thirty years the Appellate Courts of this country including this
Honourable Court have contributed to restoring to Canadians their history. In so doing they
25
have corrected much bad law.
O'Connell, International Law at 470
4.
The British Columbia Court of Appeal in & v. White and Bob and subsequently the
Supreme Court in Calder dispelled from Canadian law the myth that North America was
30
juridically -8.
& hv. -W
Calda v.
(1964) 50 D.L.R.(2d) 613 (B.C.C.A.) aff'd [I9651 S.C.R. vi;
313, per Judson J. at 328
A.G.B.C.[I9731 S.C.R.
Facturn of the Chiefs of Ontario
5.
Argument
2
In 1981 this Court in Tavlor and Williams, in 1984 the Supreme Court in Simon and
again in 1990 in Sioui confirmed the juridical importance of the First Nations' understanding of
the treaty process, the surrounding circumstances and the Crown's duties thereunder. In Sioui,
the Court acknowledged and gave legal effect to the true historical and juridical relationship
between European Nations and First Nations in the formative years of this country.
R. v. Tavlor and Williams (1981) 34 O.R.
-
(2d) 360; Simon v. The Oueeq [I9851
2 S.C.R. 387; R. v. Sioui [1990] 1 S.C.R. 1025 at 1053
6.
The Courts have identified as central to the European-First Nations relationship the duty
on European powers to act with honour and as a fiduciary towards First Nations partners,
particularly where treaty promises are involved.
m.
a 1063;
suDra at 649; R. v. Sparrow [I9901 1 S.C.R. 1075
Sioui. s u ~ r at
at 1107-8; Tavlor & Williams, supra at 367; R. v. Agawa (1988) 65 O.R. (2d) 505
(O.C. A.) at 523-4
7.
The history and law of the period leading up to and following the Seven Years War was
c M e d by Sioui. The present Appeal requires this Court to develop and pursue the historical
and legal analysis through the several decades following that period.
-
1. Jay Treatv Historical C o n t a
8.
The judgment in Sioui constitutes the leading authority on the matter of determining the
existence of treaties and treaty rights. In Sioui Lamer J., for a unanimous court, reviewed in
some detail the distinction between rules relating to
on the one hand and
rules relating to determining the existence of a treaty on the other, concluding:
... a more flexible approach is necessary as the question of the existence of a treaty ...
is generally closely bound up with the circumstances existing when the document was
prepared (White and Bob, supra, at pp. 648-649, and
at pp. 409-10). (at
1049, emphasis added)
w,
9.
In Sioui the Court had been asked to examine three types of extrinsic evidence to assist
it in determining whether there existed the intent to enter into a treaty: the historical context of
the period, facts closely associated with the signing of the document and the subsequent conduct
Facturn of the Chiefs of Ontario
Argument
3
of the parties. The historical context was considered by the Court to be "essential to the
resolution of this case". (at 1050)
10.
5
The historical context of the Jay Treaty, as was the case in Sioui, essentially involved
European powers vying for alliances with First Nations. These diplomatic efforts consisted
largely of interfexing as little as possible with, and ensuring the continuation of First Nations
societies and economies, including trade. It took concrete f o m in Councils with First Nations
and the insertion in inter-European diplomatic instruments of stipulations in favour of First
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. ...
This "generouswpolicy 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.
Sioui,ar11.
at 1053 and 1055
The Treaty of Utrecht 1713 between England and France recognized, affirmed and
conferred treaty protection to aboriginal mobility and trading rights (App. tab 1). The British
insisted on the inclusion of similar treaty protection as a sine aua non for the conclusion of the
20
Jay Treaty in 1794. (See Jay to Randolph, Dossier d'appel (hereinafter "DA") Vol. V at 961)
-
2. Jav Treatv Contemporaneous Facts
12.
25
The conduct of the parties shortly before, contemporaneous with and shortly after the
signing of the Jay Treaty clearly demonstrates the intention to establish binding and lasting treaty
arrangements. The Court in Sioui gave great weight to evidence relating to facts which were
contemporaneous with or which occurred shortly before or after the signing of the document (at
suya 105657).
30
13.
Councils held with First Nations during the relevant period clearly reveal the intention
of the signatories to the Jay Treaty.
Facturn of the Chiefs of Ontario
14.
Argument
4
In 1791, three years before the signing of the Jay Treaty and nine years after the signing
of the Treaty of Paris of 1783 which established the boundary between the United States and
British North America, Lord Dorchester, in answer to an address from a deputation of
Confederated Indian Nations, assured them that the boundary would have no effect on them:
When the King made peace and gave independence to the United States, he made a
Treaty [of Paris] in which he marked out a line between them and him; this implies no
more than that beyond this line he would not extend his interference. ... But Brothers,
this line, which the King then marked out between him and the States even supposing the
Treaty had taken effect, could never have prejudiced your rights. (App. tab 2 at 37; see
also Article 2 of the Treaty of Paris of 1783, DA, Vol. VI at 1134)
15.
Within three years of Lord Dorchester's assurances, the Jay Treaty was executed.
Article III of that Treaty reiterates the oral treaty promises made by Lord Dorchester (App. tab
10
3).
16.
The terms of the treaty are clear. T h e independent status of First Nations and the
distinction between Indians on the one hand and His Majesty's Subjects and Citizens of the
15
United States on the other is clearly revealed in Art. ID of the Jay Treaty.
It is agreed that it shall at all Times be free to His Majesty's Subjects, and to the Citizens
of the United States, and
. (emphasis added, App. tab 3)
m..
20
17.
a
*
Article XXVm of the Jay Treaty confirms that the First Nations' rights to trade and
travel were intended to be perpetual rights. They were incidents of existing territorial rights,
permanent in character and not wholly promissory and prospective.
McCandless v. ynited States 25 F. 2d 71 (C.A. 3rd' 1928) at 72
25
18.
In the year following the signing of the Jay Treaty, on August 28,1795 Governor Simcoe
addressed a Council of the Six Nations assembled at Fort Erie and repeated treaty promises to
the representatives there present, refking specifically to their rights under the Jay Treaty:
Brothers -- I have the Treaty in my hands, as printed in the U. States, it establishes your
rights upon the same Basis that had been formerly agreed upon between the French and
British Nations and which I repeated in October last to the western Indians in the
following words, Children. In the victory over the French Nation, the common Enemy,
the interests of your Forefathers, and of you, their Children were not forgotten, in the
Facturn of the Chiefs of Ontario
Argument
5
treaty between the English Conquerors, and the French, [the Treaty of Utrecht of 17131
it was stipulated that your rights should be preserved, those rights which you enjoy as
an Independent People. It was declared that you had a right to go to the English and
French fires for the purpose of traffic, and that you had a right inseparable from an
independent people to admit the traders of either Nation to Your fires as suited your
interest or inclinations. (App. tab 4 at 86-87)
19.
Governor Simcoe, after repeating the treaty guarantees of Art. III, concluded:
You see therefore that by the Treaty a perpetual and constant communication is secured
between you and the King's Subjects and our future trade and intercourse, is guaranteed
on the most unrestrained and General footing. (App. tab 4 at 86-87)
5
20.
The Six Nations representatives accepted the treaty guarantees and exchanged wampum:
We are happy to hear that the late -Treaty has presemed our rights as a free and
Independent p q l e entire, ... (App. tab 4 at 88)
10
21.
Further proof of the intention of the parties to make the provisions of Art. ID perpetual
and not impairable is demonstrated by the events leading up to the signing in 1796 of the
fi
Explanatory Article to Art. III. The United States had entered into a treaty, the Treaty of
Greenville, with the Wyandots, Delawares and others on August 3 1795 which, in Art. MII,
derogated from the provisions of the Jay Treaty. In order to remedy this situation and explain
it so "as to remove all doubts" the parties signed the Explanatory Article. The Explanatory
20
Article confirms the distinct status of Indian Nations.
...by these presents, [the parties] explicitly agree and declare, that no stipulations in any
treaty subsequently concluded by either of the contracting parties, with any State or
nation, or with any Indian tribe, can be understood to derogate, in any manner, from the
rights of free intercourse and commerce secured by the aforesaid third article of the
treaty.of
amity, commerce, and navigation,
d
.
se
f
the n
:... (emphasis added)
m~
25
App. tab 5; Treaty of Greenville, DA, Vol. IV at 714
-
3. Jav Treatv Subseuuent Conduct of the Parties
'O
22.
The subsequent conduct of the parties, particularly the British and the Indian nations,
confirmsArt. III of the Jay Treaty as a biding treaty stipulation in favour of independent Indian
nations, actual or potential allies, and a positive, lasting source of.treaty rights.
Factum of the Chiefs of Ontario
23.
Argument
6
The treaty guarantees included in Art. III of the Jay Treaty and Art. M of the Treaty of
Ghent ending the War of 1812 were extended to the Indians in return for and in consideration
of their allegiance to either the British or Americans during the revolutionary war and the War
of 1812. In White and Bob Noms J. A. of the B.C. Court of Appeal stressed the importance
and effect of benefits that the Crown takes under treaties. (su~raat 648)
24.
The role played by the Indians who were allies of the British during the War of 1812,
has been commented upon recently by the Ontario Courts:
The fall of Michilimackinac was not accomplished by Captain Roberts and a few
voyageurs from Sault Ste. Marie. It was accomplished by the natives who crowded the
heights above the fort and threatened massacre to its defenders.
R. v.
-
Chevrier [I9891 1 C.N.L.R. 128 at 129 (Ont. D.C.)
During the negotiations leading up to the Treaty of Ghent, the British Plenipotentiaries
insisted on their right to negotiate for the "future security" of their Indian allies and made the
restoration of the free trade and free passage rights in Art. III of the Jay Treaty a sine
for the conclusion of the Treaty.
25.
As the continuance of the Negotiation exclusively depends upon the question relating to
the pacification and rights of the Indian Nations,. ..
(British No. 4 App. tab 6 at 670; British No. 2 App. tab 7)
20
26.
After the signing of the Treaty of Ghent further councils were held with First Nations
at which treaty promises, accepted by the First Nations were made. Wampum was exchanged.
At these Councils the British were represented by the same William Claus who had acted in the
Treaty of 1818 examined by this Court in Tavlor and Williams, supra.
25
Council at Burlington Heights in April 1815 (App. tab 8); Council at Niagara on August
31 and September 1 1815 (App. tab 9); Sioui, suDra at 1059
27.
Respondent argues that the promises and guarantees contained in Art. III of the Jay
Treaty and Art. IX of the Treaty of Ghent (App. tab 10) were seen as temporary solutions to
'O
military, diplomatic and economic objectives and simply palliative to existing conflicts (par. 46).
Surely most treaties are pahative to a conflict; that does not make them temporary. This is
confirmed by Sioui.
Factum of the Chiefs of Ontario
merit
7
C. THE LAW APPLICABLE
1. Intertem~oralRule
28.
It is well established law that instruments must be construed in the light of the law as
well as the facts contemporary to the instrument (the intertemporal rule). In the period of the
Jay Treaty and the Treaty of Ghent, First Nations were considered allies, not subjects. The Law
of Nations governed European-Indian relations.
Island of Palmas Case (1928) 2 R.I.A.A. 829 at 845; Sioui. suDra at 1053, see'alsoat
1038
29.
In 1823, over twenty years after the signing of the Jay Treaty and almost ten years after
the signing of the Treaty of Ghent, Chancellor Kent held:
10
Through the whole series of our colonial history, these Indians were bnsidered as
dependent allies, who advance for themselves the proud claim of free nations, but who
had voluntarily, and upon honourable terms, piaced themselves and their lands under the
protection of the British government. ... No argument can be drawn against the
sovereignty of these Indian nations, from the fact of their having put themselves and their
lands under British protection. Such a fact is of frequent occurrence in the transactions
between independent nations.
(joodell v. Jackson 20 Johns. 693 (N. Y. Court for the Correction of Errors 1823) at
711; see also Worcester v. G e o r a 31 US (6 Pet.) 515 (1832) at 548-552
2. International Law Ab~licable
20
30.
International law is, of course, applicable to the rights and obligations under Jay Treaty
and the Treaty of Ghent. Moreover the Supreme Court of Canada has held that it may be
helpful in some instances to analogize the principle of international treaty law to Indian-European
25
treaty relations. In Simon, the Chief Justice appeared to draw such an analogy in holding that
the party arguing for the termination of a treaty bears the burden of proving the circumstances
and events justtfying termination and in concluding that ,the Crown had failed to prove that the
treaty of 1752 there in issue was terminated by "subsequent hostilities".
30
Simon,s u ~ r aat 404;
Brownlie,
at 614
Factum of the Chiefs of Ontario
31.
Argument
8
Formal requirements of statehood were not a necessary requirement of British treaty-
making in the mid-18th to mid-19th centuries:
It is apparent from the chronicle of British treaty-making in the century beginning in
1750 that the British Crown was willing to make formal arrangements with a great
variety of political formations in widely differing contexts. In practical terms the
question
the types of entixwhich counted
was not faced - or rather it was
----of,delimiting
--=---""
yWYIkJ.
-L
A-VVI
V I Y.
6-&1WUP
Brownlie, Princi~les,supra at 682; International Covenant on Civil and Political Rights
. v. CoalIndia
Order of the
C.T.S. 1976 No. 47;
Supreme Court of India (13 Dec. 1985) [unreported] New Delhi, CMP No. 16331 of
1982 at 2; see also Kingsbury "The Treaty of Waitangi: Some International Law
Aspects" at 135-136
20
33.
International law recognizes that a treaty stipulation in favour of a third party creates
rights for that party if such is the .intent of the parties. As its historical context shows, Art. III
of the Jay Treaty is just such a stipulation.
It cannot be lightly presumed that stipulations favourable to a third State have been
adopted with the object of creating an actual right in its favour. There is however
nothing to prevent the will of sovereign States from having this object and this effect.
The question of the existence of a right acquired under an instrument drawn between
other States is therefore one to be decided in each particular case: it must be asmtained
whether the States which have stipulated in favour of a third State meant to create for
that State an actual right which the latter has accepted as such.
Case of the Free Zones of U-pper Savov and the District of Gex (1932) P. C.I. J. Series
AIB, no 46 p. 96 at 147-148; See also Art. 36 Vienna Convention on the Law of
Treaties (1980) Can. T.S. No. 37 (App. tab 11)
Factum of the Chiefs of Ontario
34.
Argument
9
Intention may be explicit or may result implicitly from various circumstances:
All the instruments above mentioned and the circumstances in which they were drawn
up establish, in the Court's opinion, that the intention of the Powers was, beside
"rounding outNthe territory of Geneva and ensuring direct communication between the
Canton of Geneva and the rest of Switzerland, to create in favour of Switzerland a right,
on which that country could rely, to the withdrawal of the French customs barrier behind
the political frontier of the District of Gex, that is to say, of the Gex free zone.
Free Zone, s u m at 148
5
35.
Stipulations in favour of third States can be claimed directly by the beneficiary and
"confer definitive and irrevocable rights in its favourN.
E. Jimenez de Arechaga, "Treaty Stipulations in Favour of Third States", (1956) 50
A.J.I.L. 338-357 at 343-4 and (1966) I g
s
i
o
n
at 84; Brownlie, Princi~les,su~raat 621-2; art. 37(2) Vienna Convention, supra (App.
tab 11)
10
36.
As appears clearly from the negotiations on the Treaty of Ghent, the British considered
that the principles of the law of nations applied to relations with First Nations in general and to
l5
treaty stipulations in favour of Indian allies set out in the Jay Treaty in particular:
The British Plenipotentiaries have yet to learn that it is contrary to the acknowledged
principles of public Law to include Allies in a Negotiation for Peace, or that it is
contrary to the practice of all c i v i h d Nations to propose that a provision should be
made for their future security.
20
British Statement No. 2, App. tab 7 at 645
37.
During the negotiations leading up to the Treaty of Ghent, in British Statement No. 4,
the British Plenipotentiaries insisted on their legal right to propose stipulationson behalf of their
25
Indian allies at the peace.
The Plenipotentiaries invoked a similar situation during the
negotiations of the Treaty of Miinster in 1648 at which France successfully negotiated on behalf
of certain states and cities in Germany which were considered as independent for certain
purposes, yet were within the boundary of the German Empire. (App. tab 6 at 673)
30
38.
It is clear from the very terms of the Jay Treaty, that the Indians were not considered to
be British subjects, nor were they citizens of the United States. By including in the Jay Treaty
Factum of the Chiefs of Ontario
Argument
10
a stipulation providing for the free passage of the Indians across the boundary established by the
treaty, the British were exercising their duty to represent the interests of the Indian nations under
their protection.
Goodell v. Jackson, su~ra;Vattel, The Law of Nations at 94-95; Wheaton Elements of
International Law at 68-69
D. -RIGHTS
NOT EXTINGUISHED
1. No Extirmishment Without F i Nations' Consent
39.
Treaty rights cannot be unilaterally extinguished. The consent of all parties to a treaty
must be obtained in order to affect a legal extinguishment. In certain exceptional circumstances
,.
an aggrieved party may terminate a treaty.
IU
Vienna Convention, su~ra;Arts. 54 and 60; Namibia Case, Adv. op., [1971] I. C.J. Rep.
16 esp. at pars. 91-101; Sioui, s u ~ r aat 1063
l5
40. The integrity of contract or treaty provisions has for centuries been a fundamental
principle of all legal systems including those of the Indian nations of Canada, the British and the
French during the colonial period in Canada, and that of Canada in the postcolonial period.
It has been accepted as part of the Law of Nations and is today part of customary international
law (pacta sunt servanw. The validity of a treaty, its continuance in force and consent to be
bound are presumed.
20
a,
Sioui, s u ~ r aat 1063;
s u ~ r aat 404, 405-6; White and Bob, s u ~ r aat 649; R. v.
Ireland [1991.] 2 C.N.L.R. 120 (Ont. Crt. Just.) at 130-131
41.
25
At Councils, assurances were given, tokens of solemnity (wampum) exchanged and
undertakings made to Indian nations respecting the treaty guarantees of free passage and trade.
In explicitly accepting these representations and exercising their rights the Indian nations
acquired treaty protection which cannot be extinguished without their free consent.
E. Jimenez de Arechaga, Treaty Stipulations, s u ~ r at
a 343; Sioui, s u p at 1059
Factum of the Chiefs of Ontario
Argument
11
2. No Extinmishment Demonstrated
42.
In any event, Intervenor Chiefs submit that there has been no extinguishment or cessation
of these treaty rights demonstrated by Respondent.
a) No Extineuishrnent or Cessation bv the Absence of Im~lementineLegislation
43.
5
,
Contrary to what was held by the trial judge @A p. 98), a treaty entered into by the
Crown is a source of rights and obligations notwithstanding the failure to adopt implementing
legislation or the repeal of such legislation, which might affect the exercise of such rights. This
is confirmed by Francis v. The Oueen.
[1956] S.C.R. 618 at 622; Slattery "The Constitutional Guarantee of Aboriginal
and Treaty Rights" at 264; see also Appellant's Facturn at 9;
44.
Whatever the effect in domestic law of the absence of legislation implementing treaty
provisions it cannot be construed as an extinguishment of the right. The Supreme Court of
Canada has held that mere non-use of a treaty provision, even for a long period of time, will
LS
not suffice as a ground for extinguishment of a treaty provision. The same principle would
apply by analogy to .an absence of legislation.
Sioui. s u ~ r aat 1066; Ireland,
at 130
b) No Abrogation Bv the War of 1812-1814
45.
Lord McNair stated that "it is thus clear that war does not per se put an end to pre-war
treaty obligations in existence between opposing belligerents." (Vol. III, Tab 37 Resp. Auth.).
The authorities relied on by Respondent clearly state that subsequent conduct is legitimate
25
evidence of the continued force and effect of treaties. The subsequent conduct of Great Britain
and the United States, clearly establishes that the rights guaranteed by Art. III of the Jay Treaty
were not abrogated by the War of 1812.
Fitzmaurice Vol. III, Tab 34 Resp. Auth.; see also Sioui. s u ~ r aat 1045
30
46.
The Uiited States Supreme Court has held that the War of 1812 at most "suspended" the
rights in Art. IX of the Jay Treaty.
Factum of the Chiefs of Ontario
Argument
12
CW]e are not inclined to admit the doctrine urged at the bar, that treaties become
extinguished, @sofaco, by war between the two governments, unless they should be
revived by an express or implied renewal on the return of the peace ... We think,
therefore, that treaties stipulating for permanent rights, and general arrangements, and
professing to aim at perpetuity, and to deal with the case of war as well as of peace, do
not cease on the occurrence of war, but are, at most, only suspended while it lasts.. .
1e0-S - - f th
in Foreim Parts v. Town of New-Haven 5
Law. Ed. 662 (1823) at 669-670 (Vol. 3 tab 29, Appellant's Auth.)
5
47.
The rights confirmed to members of First Nations by Article III of the Jay Treaty, like
those confirmed in Art. IX, are permanent rights, "professing to aim in perpetuity". They were
not abrogated by the War of 1812-1814.
10
48.
The U.S. Supreme Court's judgment in Kamuth is distinguishable. The Court there
decided that the rights accorded to non-Indian citizens in Art. III constituted a privilege and were
not meant to be permanent. Lord McNair has argued that the decision in Karnuth "is open to
grave doubt". Moreover, the reasoning in Karnuth does not apply to the distinct treaty rights
of Indians in Art. III. First Nations rights pre-dated and were confirmed not created by the
l5
Treaty. First Nations were independent entities not subjects or citizens and stipulations in their
favour were binding under the Law of Nations. The treaty rights were confirmed at Councils.
s-,
v. Y.S, 279 U.S. 231 (1929); McNair A.D., The Law of Treaties at 714;
su~ra:Simon. s u ~ r aat 401-402
20
49.
As held in
w,instruments that appear to be similar can have different legal effect for
subjects or citizens on one hand and Indian allies on the other.
Sioui, s u ~ r aat 1056
25
50.
and Aldns do not reflect the law of Canada as to the relations between the
European and the Indian nations in the period 1713-1815. Statements relating to the power of
Congress to abrogate unilaterally First Nations' treaty rights have no application in Canada.
s30
better reflects the state of the law in Canada.
U.S. v.
88 F. 2d 318 (1937) (U.S.C. of Customs and Patent Appeals); Akins v.
U.S. 551 F. 2d 1222 (1977) (U.S.C. of Customs and Patent Appeals) at 1229-1230;
Factum of the Chiefs of Ontario
51.
Argument
13
In any event rights could only be abrogated as between warring parties. The guarantee
of rights in Art. ID was unaffected by the war as between non-warring parties or allies. It is
for this reason that Art. IX of the Treaty of Ghent only speaks to relations between Great Britain
and the Indians with whom it had been at war, and the United States and the Indians with whom
it had been at war. Being a peace treaty, the Treaty of Ghent required no implementing
legislation.
C)
N Extin ishment b- "Fo
5
52.
Contrary to Respondent's submission, the only change of circumstances which can result
in the extinguishment or suspension of a treaty is one that is fundamental and not foreseen by
the parties.
[?lhe traditional view [is] that the changes of circumstances which must be regarded as
fundamental or vital are those which imperil the existence or vital development of one
of the parties. (at 20) ... Moreover, in order that of change of circumstances may give
rise to a ground for invoking the termination of a treaty it is also necessary that it should
have resulted in a radical transformation of the extent of the obligations still to be
performed. The change must have increased the burden of the obligations to be executed
to the extent of rendering the performance something essentially different from that
originally undertaken. (at 22)
Fisheries Jurisdiction (United Kingdom v. Iceland) [I9731 I.C.J. Rep. 3 at 20-21; See
also: Article 62 of the Vienna Convention, su~rawhich codifies customary international
law on this issue. (App. tab 11)
10
I
5
53.
20
The changes in military, diplomatic and commercial circumstances invoked by
Respondent do not bear upon the treaty rights in question in this Appeal and are not so
fundamental or unforeseeable as to meet this stringent test.
54.
25
In the Free_Zones.suura, the Permanent Court of International Justice dismissed
France's arguments that the treaty rights enjoyed by Switzerland had been extinguished by a
fundamental change in circumstances. The Court stated that, in order for this argument to
succeed, France would have first had to establish that the free zones were created subject to the
existence of the circumstances which they contended had ceased to exist. (at 156-158)
International Court of Justice concluded that Portugal had a right of passage at international law
over the territory of India. Portugal enjoyed such right notwithstanding that there had been a
Facturn of the' Chiefs of Ontario
Argument
14
complete change of sovereignty over the territory in question since the right had first been
exercised.
(1960) I.C.J. Reports No. 32 p. 6 at 40
56.
No condition or term attaches to the rights confirmed to the Indian nations in the Jay
Treaty, or in the Treaty of Ghent. Article XXVIII stipulates such a term for other provisions
of the Jay Treaty. Clearly the framers put their minds to the question of whether circumstances
5
would change when they determined that all but the first ten and twelfth articles would be of
limited duration.
d) No Renunciation bv th= contract in^ Partie
lo
57.
Respondent gives no authority for the proposition that the rights in Art. III of the Jay
Treaty and Art. IX of the Treaty of Ghent have been explicitly renounced by the contracting
parties. Moreover, any unilateral "renunciation" by the Crown of its treaty obligations under
the Jay Treaty would amount to the "sharp dealingwdenounced on several occasions by this
I5
Court:
The principles to be applied to the interpretation of Indian treaties have been much
canvassed over the years. In approaching the terms of a treaty quite apart from the other
considerations already noted, the honou r of the Crown is alwavs involved and no
o
f
(emphasis added).
58.
25
With respect to the fiduciary duty of the Crown the trialjudge found that the principles
in Guerin v. The Oueen [1984] 2 S.C.R. 210 did not apply in this case but he did not have the
benefit of the Supreme Court judgment in S~arrowthat confirmed a general fiduciary duty owed
by the Crown to Aboriginal peoples. (su~ra,at 1108)
e) Conclusion on Extinrmishment
59.
'O
In 1791 Lord Dorchester for the Crown made treaty promises to the Confederated Indian
Nations; in 1794 through Art. III Jay Treaty Britain made binding treaty stipulations in favour
of the Indians residing on both sides of the line drawn by the British and Americans and these
rights were confirmed in the Treaty of Ghent. In 1795 Governor Simcoe confirmed and renewed
Facturn of the Chiefs of Ontario
Argument
15
the treaty promises as to border crossing. Further treaty promises were made and accepted at
the Councils at Burlington Heights and at Niagara in 1815. The honour of the Crown is
involved in determining whether these treaty rights have been or could be extinguished.
60.
An offending party may not rely upon its own actions in breach of a treaty in order to
escape from obligations or duties under that treaty. The modes of extinguishment suggested by
Respondent would amount to sharp dealing by the Crown, invoking its own turpitude, and a
5
breach of its fiduciary duty in a manner which this Court has refused to condone.
Holman v. Johnson (1775) 1 Cowp. 342; Art. 60(1) Vienna Convention, suDra (App. tab
11)
10
E. FRANCIS V. THE OUEEN
1. Francis Not Authoritv for Extinmishment
61.
15
In concluding that the Jay Treaty was null the trial judge held that he was bound by the
decision in
m. That decision was rendered in 1956, well before the entrenchment of
aboriginal and treaty rights in s. 35 Constitution Act. 1982.
62.
The essential holding of the Supreme Court of Canada in Francis was that the rights
guaranteed in Art. III of the Jay Treaty could not be enforced by the courts of Canada since
20
there was "no legislation in force implementing the stipulation" (at 629). Rand J., Cartwright
J. concurring, explicitly declined to consider the question of whether the treaty rights had been
extinguished stating that "[wlhether, then, the time of its expiration has been reached or not it
is not here necessary to decide; " (at 629).
25
63.
KeNvin C.J, Taschereau and Fauteux JJ. concurring, did not conclude that the rights were
extinguished but merely non-judiciable:
I cannot agree that any relevant rights of the appellant within that Treaty are iudiciable
30
i
nof this country. (emphasis added) (at 622)
Factum of the Chiefs of Ontario
64.
Argument
16
The judgment of Kellock J., Abbott J. concurring, dealt only with the effect of the Indian
kt.
65.
The judgment in Francis stands at most for the proposition that in 1956 the treaty
guarantees in Art. IKI of the Jay Treaty could not be enforced by the courts of Canada as there
was no domestic legislation implementing those treaty guarantees.
2. Francis su~erseded
66.
F
d articulates a conception of Parliamentary sovereignty prevailing before the
coming into force of the Constitution Act. 1982. Parliament could breach a treaty. Such a
breach could be considered as a material or continuing breach permitting the injured party to
10
demand termination, but is not tantamount to extinguishment of the treaty, a treaty provision or
a treaty right. The Courts are now so holding.
Parliament could pass legislation that has the effect of suspending or interfering with the
exercise of the right and in doing so may have breached the treaty. It did not in my
opinion extinguish the right.
& v. Arcand, [I9891 2 C.N.L.R. 110 at 117 (A1ta.Q.B.); see also: R. v. Flett [I9891
4 C.N.L.R. (Man. Q.B. ) leave to appeal dismissed [I9911 1 C.N.L.R. 140 (Uan. C. A.)
67.
20
Section 35 entrenches existing aboriginal and treaty rights.
The effect of this
constitutional protection is profound and alters the legal situation which existed at the time that
Francis was decided. Section 52 of the Constitution Act. 1982 provides that the Constitution
is the supreme law of Canada. Rand J. referred to just such a situation.
S~arrow.suDra: &&,
supra; Flett. supra: Francis, suDra at 626
25
68.
As aboriginal treaty rights under Art. 111 of the Jay Treaty are now incorporated and
entrenched by s. 35, specific domestic legislation is no longer necessary.
F. q
LARGE
O'
69.
It is long settled in Canadian law that "treaties and statutes relating to Indians should be
liberally construed and doubtful expressions resolved in favour of the Indians". This Honourable
Court has so held in Tavlor and Williams:
Factum of the Chiefs of Ontario
Argument
17
mf 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 curd Bob.. . (supra at 367)
70.
The Supreme Court of Canada has confirmed this principle as a canon of construction
for treaties as well as legislation bearing on treaty promises.
Nowegiiick v. The Oueen, [I9831 1 S.C.R. 29 at 36; Mitchell dv. [1990] 2 S.C.R. 85, at 98-9 per Dickson C.J.C, per La Forest J. at 142-3
5
71.
The provisions of Art. III of the Jay Treaty and Art. M of the Treaty of Ghent must
therefore be construed liberally in-favour of First Nations on both the question of who can
benefit from the rights and what goods are contemplated.
10
G.
15
0
72.
The trial judge correctly held that the recognition and affirmation of treaty rights in s.
35
includes the rights guaranteed to the Indians in Art. 111 of the Jay
Treaty of 1794 and in An. IX of the Treaty of Ghent. The Courts, including this Court, have
held that the expression existing in s. 35 means "unextinguished".
20
73.
Respondent argues that international treaties are so "conceptually incompatible" with
treaties signed with First Nations that they cannot possibly be included in s. 35 (at par 33(a)).
This construction is contrary to the approach taken by the Supreme Court of Canada in Sioui and
25
74.
Subsection 35(1) must be construed in a purposive way. In Sparrow the Supreme Court
of Canada has stated that:
When the purposes of the af5rmation of aboriginal rights are considered, it is clear that
a generous, liberal interpretation of the words in the constitutional provision is
demanded. (suora at 1106)
30
75.
This Honourable Court held in Agawa that the principle of "fairness to Indians" and the
"honour of the Crown" apply to the interpretation of ss. 350) (su~raat 523).
.,
Factum of the Chiefs of Ontario
76.
Argument
18
The judgment of Mr. Justice Norris of the British Columbia Court of Appeal in
and Bob has often been cited by the Supreme Court of Canada on the question of what
constitutes a treaty with the Indians:
In the section [s. 88 of the Indian Act] "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.
Suvra 649; aff'd in Simon, supra at 409-410 and in Sioui. s u m at 1041
77.
10
Clearly the guarantees in
&.III of the Jay Treaty and Art. M of the Treaty of Ghent
and the various Councils given in consideration of the "goodwill and cooperation" of the First
Nations fall foursquare within the test of White and Bob. These words of the white man were
communicated to representatives of the Indian nations and were accepted by them.
(App. tabs 2, 4, 8 and 9)
.-
l5
78.
The trial judge relied on many learned authors to come to the conclusion that s. 35
includes the rights guaranteed under Art. III of the Jay Treaty. The weight of authority
categorically supports this conclusion @A, Vol. I at 78-84).
See for example Hogg,
wa L - -
at 556-7; Slattery, s u ~ m
at 242-3
20
79.
The approach on circumscribed Parliamentary sovereignty taken in Arcand and
ahas
been tacitly approved by the Supreme Court of Canada in S m o w where the Court again
invoking this Court held that any federal legislative infringement of the exercise of an aboriginal
~.
.
25
not be so justified was of no force and effect as against section 35 rights.
-
--
right had to be justified and set out a stringent test for that justification. Legislation which could
30
Here, we refer back to the guiding interpretive principle derived from Toylor and
Williams and Guerin, supra. That is, the honour of the Crown is at stake in dealings
with aboriginal peoples. The special trust relationship and the responsibility of the
government vis-lvis aboriginals must be the first consideration in determining whether
the legislation or action in question can be justified. (su~ra,at 1114)
Facturn of the Chiefs of Ontario
80.
Argument
19
Section 155 of the Customs Act imposes a blanket prohibition on the importation of
goods into Canada unless the regulatory scheme set out in the Act is complied with. This
scheme, as enacted, conflicts with the treaty guarantees in the Jay Treaty, the Treaty of Ghent
and the Councils. No justification for this scheme as required by Sparrow appears in the Record
of this Appeal.
5
81.
This Appeal centres upon and requires an understanding of events and the state of the law
200 years past.
It involves, as well, a re-examination of authorities, including Francis,
pronounced during a period in which the understanding of aboriginal rights and the explicit
constitutional recognition of those rights was less developed than today.
10
82.
Invoking this Court's approach in Tavlor and Williams, the Supreme Court of Canada
in S ~ m o wprescribed a contemporary recognition and affirmation of aboriginal rights.
15
In our opinion, Guerin, together with R. v. Taylor and Williams ... ground a general
guiding principle for s. 35(1). That is, the Government has the responsibility to act in
a fiduciary capacity with respect to aboriginal peoples. The relationship between the
Government and aborigmls is trust-like, rather than adversarial, and contemporary
remgnition and affirmation of aboriginal rights must be defined in light of this historic
relationship. (su~ra,at 1108)
20
83. Over the years, First Nations have confronted endless technical reasons denying the
existence of treaty promises or asserting the extinguishment of those p r o m . . They have been
told that the instruments were too simple or were too complex, that the promises were not meant
to be kept.or were forgotten, not implemented or renounced. In this Appeal they face the
argument that, notwithstanding that the instrument in question was a solemn international treaty
25
coniirmed by a second international treaty of peace and &ed
at councils with their
ancestors, nevertheless, through the turpitude and neglect of the Crown, their rights are
extinguished or unenforceable.
84.
30
This Court in Tavlor and Williams stated:
Although it is not possible to remedy all of what we now perceive as past wrongs in view
of the passage of time, nevertheless it is essential and in keeping with established and
accepted principles that the courts not create, by a remote, isolated current view of past
events, new grievances. @upraat 364)
Argument
20
Order Sought
Factum of the Chiefs of Ontario
85.
Although this Court may not be able to remedy the past wrongs associated with the
enforceability of First Nations rights under Art. 111 of the Jay Treaty prior to 1982, it may now
avoid creating "new grievances" by refusing to accept the arguments of Respondent in this
Appeal.
PART N - ORDER SOUGHT
86.
For all these reasons, Intervenor Chiefs of Ontario request that this Honourable Court
allow the appeal.
ALL OF WHICH IS
10
Dated at Montreal, August 25, 1992
-
.
-
15
-
PETER W. -CHINS
OF COUNSEL FOR INTERVENOR CHIEFS
OF ONTARIO
Table of Authorities
Factum of the Chiefs of Ontario
21
Factum page
Akin$ v.
551 F. 2d 1222 (1977) (U.S.C. of Customs
and Patent Appeals)
5
Calder v. A.G.B.C. [I9731 S.C.R. 313
Case Concerning Right of Passage Over Indian Temtorv
p o r t u ~ av.
l India [I9601 I.C.J. Rep. 6
10
O
s
~
of Gex (1932) P.C.I.J. Series AIB, no 46
C
J
u
r
i
s
d
i
c
t
i
c
o
n
, [1973]
I.C.J. Rep. 3
Francis v. The Oueen [I9561 S.C.R. 618
15
v. Jackson 20 Johns. 693 (N.Y. Court for the
Correction of Errors 1823)
Holman v. Johnson (1775) 1 Cowp. 342
20
Island of Palmas Case (1928) 2 R.I.A.A. 829
Karnuth v.
U.S. 179 U.S. 231 (1929)
_
L
a
lv. Coal India Ltd. & Ors., Order of
the Supreme Court of India (13 Dec. 1985) [unreported]
New Delhi, C M P No. 16331 of 1982
2s
McCandless v. United States 25 F. 2d 71 (C.A. 3rd, 1928)
Mitchell v. P e g u i s d [I9901 2 S.C.R. 85
,esaCN
30
Adv. op., [I9711 I.C.J. Rep. 16
N o w e g i u v. The Oueen, [I9831 1 S.C.R. 29
& v. Ayawa (1988) 65 O.R. (2d) 505 (O.C.A.)
t
Factum of the Chiefs of Ontario
Table of Authorities
22
Factum Daee
[I9891 2 C.N.L.R.
R. v. a,
-
110 (A1ta.Q.B.)
aff'g [I9881 4 C.N.L.R. 91 (Alta. Prov. Ct.)
R. v.
-
Chevrier [I9891 1 C.N.L.R. 128 (Ont. D.C.)
v. Flett 119891 4 C.N.L.R. 128 (Man.Q.B.) Leave to
Appeal dismissed [I9911 1 C.N.L.R. 140
R. v. Ireland [1991.] 2 C.N.L.R.
R. v.
-
120 (O.C.J.G.D.)
Sioui [1990] 1 S.C.R. 1025
R. v. S~arrow[1990] 1 S.C.R. 1075
R. v. Tavlor and Williams (1981) 34 O.R. (2d) 360 (O.C.A.)
-
v. n
b (1964) 50 D.L.R. (2d) 613 (B.C.C.A.)
aff'd [I9651 S.C.R.
Simon v. The Oueeq 119851 2 S.C.R. 387
g
f
o
r
c
v
T o w n s f n 21 US (8 Wheat) 464 (1823)
V.S. v.
Garrow 88 F. 2d 318 (1937)
v. Georgia 31 US (6 Pet.) 515 (1832)
AUTHORS
Brownlie, Pnncrr>les,
3d ed.
(Oxford: Clarendon Press, 1979)
Brownlie, I. "The Expansion of International Society: The
Consequences for the Law of Nations" in The Expansion of
-5,
H. Bull and A. Watson eds. (Oxford:
Clarendon Press, 1984)
.
Facturn of the Chiefs of Ontario
Table of Authorities
23
Factum paze
Hogg, P.W.
Carswell, 1985)
sof
22 ed. (Toronto:
18
E. Jimenez de Arechaga, "Treaty Stipulations in Favour of Third
States", (1956) 50 A.J.I.L. 338-357
9,lO
E. Jimenez de Arechaga in y
Y
1986, Vol. I, Part 11, pp. 83-84
9
,
C
3
Kingsbury, B. "The Treaty of Waitangi: Some International
Law Aspects" in I.H. Kawharu, ed. Wanta-ie
Peqxctives of the Treaty of Waitand (Auckland: Oxford
University Press, 1989)
McNair, A.D., The Law of Treaties, (Oxford: Clarendon Press,
1961)
OYConnd,D.P., International Law, Vols 1 and 2 o n d o n :
Stevens and Sons, 1965)
15
SlatteIy, B. "The Constitutional Guarantee of Aboriginal
and Treaty Rights" (1983) 8 Queen's L.J. 232
Vattel, Theof.
,
by J. Chitty (Philadelphia:
T. & J.W. Johnson, 1863)
m,
20
Wheaton, H.
2nd Annotated
ed. by W.B. Lawrence, (Boston: Little Brown, 1863)
25
Treaty of Utrecht (1713)
Treaty of Paris (1783)
Jay Treaty (1794)
30
Explanatory Article to Article III Jay Treaty
Factum of the Chiefs of Ontario
Table of Authorities
24
Factum pa=
Treaty of Ghent (1814)
Vienna Convention on the Law of Treaties (1980) Can. T.S No. 37
International Covenant on Civil and Political Rights,
C.T.S. 1976 No. 47
5
10
Customs Act, R.S.C. 1985 c. 1 (2d Supp.), s. 155
British Statement No. 4
British Statement No. 2
Council at Niagara with Grand River and American Iroquois,
3 1 August and 1 September 1815
15
Council at Burlington Heights, 24, 26, 27 April 1815
Governor Simcoe to Council of the Six Nations, 18 August 1795
Six Nations Reply to Governor Simcoe, 28 August 1795
20
Jay to Randolph, 19 November 1794,
- in D
and ec tiv f
9
v01.1
,
(Washington: Gales & Seaton, 1833) p. 503
Lord Dorchester to the Confederated Indian Nations
(15 August 1791) Archives of Ontario, F47, A-1, Letterbook 17
25