Jack Sissons, NWT court of appeal judge and early champion of aboriginal rights, stands beside the million-dollar duck. The duck, which has been stuffed and X-rayed and analyzed to death, resides somewhere in the basement of the Yellowknife Courthouse. - photo courtesy of J.H. Sissons school

If he spotted someone who looked like a lawyer, he'd say, "Hey, do you want to go in and see my million-dollar duck?"

Michel Sikyea's mallard duck, which cost the Canadian government upwards of a million dollars in legal fees and was stuffed and X-rayed over its life as a court exhibit, resides in Yellowknife bar lore.

Sikyea's duck will be remembered for its court appearances, but it was Sikyea's case that showed aboriginal rights, contrary to the treaties signed and the lip service paid by the Canadian government, weren't as protected as Canada had led aboriginals to believe.

Legal disabilities

Enter Judge Jack Sissons, a feisty 70-year-old territorial court judge, with a chip on his shoulder and steel supports clamped around his legs. While most of his age and affliction -- he had polio as a kid -- wheel around in wheelchairs, Sissons lumbered around on two canes.

"He told me that as a kid he was taunted -- until they got within striking range," says David Searle, one of the case's Crown prosecutors. "Then he'd wallop them with his canes. And that's what he'd do in the court, he'd cut you off at the knees."

Sissons sympathized with those who had disabilities -- especially those with legal ones, such as aboriginals, Searle adds.

Canadian treaty history was about to change.

The traps were bare

On May 7, 1962, Sikyea had been hiking seven miles out of Yellowknife with plans of living off the land by shooting muskrats. Problem was, he was going hungry.

Sikyea had just been released from the hospital in Edmonton after battling tuberculosis for two years.

During that period his family had been on relief and, being the provider, the 60-year-old left his food at home.

On this trip, traps had been set, but weren't springing. He had to find food.

In a small lake by the highway, he saw a wounded duck tossed by the wind toward the shore. He shot it.

Before long, an RCMP constable stopped on the highway. To Sikyea's dismay, given he felt it was his right under Treaty 11 to hunt for food (he'd acted as an interpreter when Treaty 8 was inked, so he was aware of treaty politics), his shotgun and duck were confiscated. Having no other choice, he went home.

Sikyea was charged for breaching the Migratory Birds Convention Act -- what the flap was all about.

The United States and Mexico signed on the dotted line to protect migratory birds from market hunters -- people who made a living by shooting and selling them to restaurants. It also banned spring hunting of birds, a native food source.

Canada signed the act in 1917, four years before the signing of Treaty 8 and 11, which seemed to unconditionally give NWT aboriginals full rights to hunt, fish and trap, among other rights.

Forty-five years later Sikyea and the aboriginal community would learn this wasn't the case. Though unimpressed, the Yellowknife aboriginal community wasn't surprised.

"Canada was trying to do away with our rights," says Dene Nation chief Bill Erasmus. "It was common at the time."

While Sikyea had no doubt about his treaty right to hunt birds in the spring, he felt he had to plead guilty, says Searle. The Dogrib was convicted.

When he heard about Sikyea's conviction, Judge Sissons' ire was raised and he ordered the case be appealed. According to the judge's autobiography, he believed Sikyea's human rights had been violated.

Duck and conquer

Despite the gravity of the case, the trial had comic elements. To prove that the duck had been shot, Crown prosecutor Mark De Weerdt, Searle's partner, had the female mallard X-rayed to prove lead shot was lodged in its belly.

In order to make the charge stick, the Crown had to also prove the duck was wild and not tame. De Weerdt called the arresting RCMP officer to the stand, and asked him if the duck could have been tame.

His witness didn't exactly crack the case. The farmboy-turned-officer, a man who raised ducks outside Yellowknife, said for all he knew, the duck could have been one of his own.

These wranglings would amount to little -- Sissons was determined to acquit Sikyea one way or another, according to Searle.

After examining the report on the treaty negotiations, Sissons stated, "There is nothing in this report that would indicate that the Indians were told their right to shoot migratory birds had already been taken away from them."

Without going so far as to accuse the government of deceiving Indians into thinking they had rights they didn't have, he called the government's actions a "breach of faith," and ruled in favour of Sikyea.

Ahead of his time

Never before had the rights conferred on aboriginals by the treaties signed in the early 1920s held up in court. "Sissons was way ahead of his time," says Searle. "He was pro-aboriginal rights back when there was no such term."

The elders were not surprised by the ruling. "They knew Sikyea was just trying to feed his family (when he shot the duck)," says Fred Sangris of the Dene First Nation. "And so when they heard the court case they already knew they had the treaty right."

After all, a treaty is not a European convention. Aboriginal nations had treaty relationships among themselves long before the arrival of European nations. So the elders were familiar with treaties long before Treaty 8 and 11 -- treaties seen as sacred and unbreakable -- were inked.

Only they weren't familiar with the twists and turns of European law. When the Crown appealed the case to the NWT Court of Appeal, Sikyea lost. Lawyer Bill Morrow took the case in Sikyea's name to the Supreme Court of Canada, where Sikyea lost again.

When Sikyea heard the result, he said he'd rather go to jail than pay the $10 fine. Instead, Morrow paid it to "spare him that final indignity," as he wrote in his autobiography.

Sissons would later suffer a similar fate. In the early 1970s, a whole line of his cases, in which he often upheld aboriginal rights, were overturned in the NWT Court of Appeal. Sissons responded in private, said Searle, by calling it a "Mississippi court."

Overlooked or ignored?

"I cannot believe that the government of Canada realized that in implementing the Convention they were at the same time breaching the treaties they had made with the Indians," Judge H.C. Johnson said in his NWT Court of Appeal ruling. "It is much more likely that these obligations under the treaties were overlooked." The Supreme Court judge, who overturned Sikyea's appeal, concurred with Johnson.

But documents have since come to light showing that the government knew perfectly well what it was doing, according to an article by Dan Gottesman published in The Journal of Canadian Studies. Those conservationists who served on the advisory board that oversaw the signing of the MCBA patronizingly believed they had to save Indians, who relied on birds for food, from themselves.

They felt natives' use of firearms, for one, would lead to the decimation of bird populations. In a baffling snare of logic, they felt that without the government's unofficial intervention -- essentially gutting the treaties -- Indians would deprive themselves of a spring food source.

Quoting Johnson, who would oversee an appeal of the Sikyea case, Yellowknife lawyer John Bayly spelled out the government's schizophrenic mindset. "The left hand (of the Canadian government) had forgotten what the right hand had given."

Pursue no more

In the end, Michel Sikyea did change the landscape of treaty aboriginal rights -- at least at the ground level, anyway.

Wildlife enforcement officials and RCMP officers unofficially stopped pursuing aboriginals hunting migratory birds in the spring soon after he won his case. And in the early 1990s the MCBA would be amended to allow aboriginals to hunt migratory birds in the spring.

"This is an area where we said, 'OK, this doesn't make a lot of sense,' " says Kevin McCormick, chief of the Northern conservation division, Canada Wildlife Service. "We're prosecuting people for putting food on the table."

Today aboriginal rights are protected under the Charter and the Supreme Court has upheld treaty rights when tested in most cases. The court tends to no longer take documents of old like treaties and acts at face value, and instead examines the historic situations in which they were written.

After all, language barriers make definitive interpretations of treaties impossible and the Crown's rulings in the 1980s and 1990s show the court's understanding of this.

Yet, Sissons knew all of this in the 1960s. "He is not acknowledged for that by anybody," Searle says.

"I don't know any legal scholars who have been given credit for it. If he was around today he'd be a leading judicial figure."

As for Sikyea, he never had any doubts about his innocence. He might have plead guilty early on, but that wasn't, he felt, by choice. Once Sissons offered a choice, Sikyea leapt at it. His fight was very significant to the aboriginal community, Erasmus says, because at that time the Indian Brotherhood, the precursor to the Dene Nation (both of which fought to uphold aboriginal rights) didn't exist.

"He was an individual that really believed in his rights and spoke up for himself," Erasmus added.

"I'm not guilty," Sikyea stated bluntly when interviewed on Yellowknife radio station CFYK before Sissons found him not guilty on appeal in 1962.

"That's not right, you see, if they tell me I'm guilty," he said.

"They (the bureaucrats who signed Treaty 8) said that from now on they're not going to make different law and that law what is signed now is going to be forever. That's what they promised us."