Why is the Simon Decision Important?
The Simon decision is important because it confirmed that the Peace and Friendship Treaties in the Maritimes are the source of treaty rights.
In 1980 Jim Simon, a member of the Sipekne’katik First Nation, was charged under Nova Scotia’s legislation with possession of a rifle and shotgun during a closed hunting season.
At trial, Simon argued that the Peace and Friendship Treaty of 1752 between the British and the Mi'kmaw had guaranteed the Mi'kmaw the right to hunt and that the right could not be interfered with by the province.
The Supreme Court confirmed that Simon had been exercising a treaty right. The Court rejected the argument from the 1929 Syliboy decision that the Treaty of 1752 was not a valid treaty because the Mi'kmaw were ‘savages’ and so had lacked the capacity to enter into a treaty with the British. The Court also rejected the argument that if the Treaty of 1752 had in fact been a legitimate treaty, it had been terminated in 1753 when the Mi'kmaw and the British had resumed hostilities.
The Court clarified that Simon’s possession of the rifle and the shotgun was part and parcel of exercising the treaty right.
In the end, Simon was acquitted on both charges on the basis that provincial legislation could not stop him from carrying the rifle and the shotgun because under s. 88 of the Indian Act, the province could not interfere with the hunting right guaranteed under the Treaty of 1752.
The Simon decision set the groundwork for the later Marshall decision which established the Mi'kmaw treaty right to a commercial fishery. Following the decision, Mi’kmaq Treaty Day began to be celebrated every October 1st.
Have a question about Indigenous rights? Submit your questions here and Bruce will answer as many as possible in the monthly newsletter.
Sign up for our mailing list here to get future installments of "Indigenous Rights in One Minute" straight to your inbox.
Did you miss last month's post? Check out Bruce's answers to other questions here.
Bruce McIvor, lawyer and historian, is partner at First Peoples Law LLP. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada. Bruce's ancestors took Métis scrip at Red River in Manitoba. He holds a law degree, a Ph.D. in Aboriginal and environmental history, is a Fulbright Scholar and author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He is a member of the Manitoba Métis Federation.
First Peoples Law is a law firm dedicated to defending and advancing the rights of Indigenous Peoples in Canada. We work closely with First Nations to defend their Aboriginal title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their members.