福利免费在线看

Impact of Delgamuukw Guidelines in Atlantic Canada

James [S谩k茅j] Youngblood Henderson*

[English translation] May 1999

* Research Director, Native Law Centre, College of Law, University of Saskatchewan. Guidance provided by聽ababinilli, m谩he贸o,听补苍诲听niskam; although I assume full responsibility for interpretation.

In Delgamuukw v. British Columbia,¹聽the Supreme Court of Canada affirmed the inherent meaning of Aboriginal tenure (or title) and acknowledged its role in constitutional analysis. The message from the modern framers of the constitution of Canada and the Lamer Court is that Aboriginal law, tenure and rights as well as treaty rights constitute a distinct constitutional order in s. 35(1) of the Constitution Act, 1982², with its own implicate architecture, sources, traditions, and texts, that require constitutional equality with the other parts. The Lamer Court has found Aboriginal tenure is inherent in s. 35(1); its existence is constitutionally entrenched. All legislatures, Crown officials, and courts have the duty to protect Aboriginal tenure as part of the 鈥渟upreme law of Canada鈥� under s. 52(1); to relieve them of their duty would deny constitutional supremacy and its commitment to the rule of law³.

In Delgamuukw, the Supreme Court established 鈥済uidelines鈥� for governments and courts to evaluate and protect Aboriginal tenure because it found the trial court鈥檚 factual findings unreliable and ordered a new trial. The Lamer Court recognized these parallel land tenures have always existed in North America, that both sovereigns sought to reconcile the two land tenure systems by consensual treaties in the law of nations and British prerogative law, and that unpurchased Aboriginal tenure has not been extinguished or superseded by Canadian law.

The Delgamuukw guidelines affirm and recognize that Aboriginal tenure is sui generis tenure: a Aboriginal law generated system of land tenure protected by s. 35(1) of the Constitution Act, 1982. The sources, content, and meaning of a sui generis tenure exist not only in their physical possession on the land but also in Aboriginal worldviews, languages, laws, perspectives, and practices. A sui generis tenure does not take its source or meanings from European, British, Canadian law or practice, and exists independently of any recognition of the tenure. The Court has stressed it would be a mistake to seek answers to this sui generis legal system by drawing analogies to British property law or confusing it with doctrine of Crown tenure. The Dickson and Lamer Courts have rejected the inappropriate terminology and misleading categorization of content and proof of Aboriginal tenure of the older judicial precedent

The Delgamuukw guidelines declare that Aboriginal tenure is a real property right in Canadian law: 鈥渢he right to the land itself鈥� that is distinguishable from Aboriginal rights⁴. Aboriginal tenure is the equivalent of the Crown鈥檚 original title or tenure in British law. It is created by the overarching Aboriginal legal system that organizes all Aboriginal occupation and uses of land. Chief Justice Lamer declared the exclusive right to the use and occupation of land in an Aboriginal people means 鈥渢he exclusion of both non-aboriginals and members of other aboriginal nations鈥�.聽⁵聽According to Aboriginal law, Aboriginal tenure is an 鈥渆xclusive鈥� right that is capable of being shared with other Aboriginal nations; but it is not controlled by the common law principles of exclusivity.⁶

The Court identified three 鈥渃omponent rights鈥� of Aboriginal tenure:

First, aboriginal title encompasses the right to exclusive use and occupation of land; second, aboriginal title encompasses the right to choose to what uses land can be put, subject to the ultimate limitation that those uses cannot destroy the ability of the land to sustain future generations of aboriginal peoples; and third, the lands held pursuant to aboriginal title have an inescapable economic component.⁷

As no other property right in Canada has been accorded constitutional protection, Aboriginal tenure and its component rights can prevent others from intruding on their lands.聽⁸聽These component rights carry a constitutional fiduciary duty to Canadian governments, which are entitled to equal protection of the law. If these component rights conflict with other constitutional authorities or rights, they may be subject to judicial reconciliation without the necessity of extinguishing Aboriginal rights.

The application of these guidelines to Atlantic Canada reveals that Aboriginal tenure was vested and reserved for the Aboriginal nations, tribes and peoples by compacts and treaties with the sovereign. Moreover, the sovereign by prerogative legislation prohibited any colonial or individual interference with these reserved tenures. Crown estates or settlements are derived from the treaty reconciliations, and remain part of the unpurchased Aboriginal tenure.⁹

The Wabanaki and M铆kmaw compacts and treaties in Atlantic Canada specifically reserved their Aboriginal tenure. The sovereign expressly reserved their exclusive tenure in imperial law. In the British written version of the 1693 treaty, the sagamores and chief captains of the Confederacy agreed to allow British settlements under their Aboriginal law and tenure:

That their Majesties鈥� subjects the British shall and may peaceably and quietly enter upon, improve, and for ever enjoy all and singular their rights of lands, and former settlements and possessions with the eastern part of the said province of Massachusets [sic] Bay, without any pretension or claims by us, or any other Indians, and be in no wise molested, interrupted or disturbed by them.¹⁰

Additionally, this treaty provision affirmed colonial government within the Aboriginal territory. Article 3 of the 1713-14 treaties affirmed these settlements in Massachusetts Bay,¹¹聽and the sovereign clarified and reserved the Aboriginal territory and free liberties back to 1693 treaty standard:

Saving unto the said Indians their own Grounds, & free liberty for Hunting, Fishing, Fowling and all other their Lawful Liberties & Privileges, as on the eleventh day of August in the year of our Lord God One thousand six hundred & ninety three.¹²

The Wabanaki Compact (1725), concluded at Boston,¹³聽acknowledged the Wabanaki tribes were friends and subjects of the king, the British treaty commissioners candidly admitted they were not successful in getting the tribes to recognize King George as the sole owner and proprietor of New England and Nova Scotia.聽¹⁴聽The compact affirmed the existing treaties, but clarified article 3 of the 1713-14 treaties by dividing it into two separate articles, 3 and 4.¹⁵聽Article 3 of the Wabanaki Compact continued the treaty promises to British subjects:

Shall and may peaceably and quietly enter upon Improve and forever enjoy all the singular Rights of God and former settlements[,] properties and possessions within the Eastern parts of the said province of the Massachusetts Bay Together with all Islands, inletts[,] Shoars[sic,] Beaches and Fishery within the same without any molestation or claim by us or any other Indians and be in no way molested[,] interrupted or disturbed therein.聽¹⁶

Article 4 emphasized the reservation of Aboriginal 鈥渓ands, Liberties and properties鈥� to the tribes:

Saving unto the Penobscot, Naridgwalk and other Tribes within His Majesty鈥檚 province aforesaid and their natural Descendants respectively all their lands, Liberties and properties not by them convey鈥檇 or sold to or possessed by any of the British subjects as aforesaid. As also the privilege of fishing, hunting, and fowling as formerly.¹⁷

Lieutenant Governor Dummer summarized his understanding of the land reservation clause in the following words:

That the said Indians shall Peaceably Enjoy all their Lands & Property which have not been by them Conveyed and Sold unto, or possessed by the British & be no ways Molested or Disturbed in their planting or Improvement And further that there be allowed them the free Liberty and Privilege of Hunting Fishing & Fowling, as formerly.

And whereas it is the full Resolution of this Government that the Indians shall have no Injustice done them respecting their Lands.¹⁸

By these treaty terms, the sovereign, the colonialists and the Confederacy agreed that in any dispute over land titles, the British subjects would carry the burden of proving their title by lawful purchase. 鈥淸I]f there should be any Dispute or Controversy hereafter between the British and you respecting the Titles or Claims of Land,鈥� the treaty commission told the Wabanaki leaders, 鈥渁fter a fair and lawful tryal, if the British cannot make out & prove their Title to the Lands Controverted they shall disclaim them; But if the British can make out their Titles then the Indian shall Disclaim the Lands so Controverted.鈥澛�¹⁹聽Lieutenant Governor Dummer summarized his understanding of the reconciliation clause in the following words:

I do therefore assure them that the several Claims or Titles (or so many of them as can be then had and Obtained) of the British to the Lands in that part of this Province shall be produced at the Ratification of the present Treaty by a Committee to be appointed by this Court in their present Session, and Care be taken as far as possible to make out the same to the satisfaction of the Indians and to distinguish & Ascertain what Lands belong to the British in Order to effectual prevention of any Contention or Misunderstanding on that Head for the future.²⁰

Loron, one of the treaty negotiators in a 1751 treaty conference stated his understanding of the treaty: 鈥淕ovr Dummer鈥檚 treaty says we shan鈥檛 loose a Foot of Ground.鈥�²¹聽Any British settler claim to contested land would have to be proved a title deriving from lawful purchase from the Wabanaki tribes, not the imperial sovereign.

Additionally, the British commissioners proposed to the Confederacy that an executed instrument in the name of the Government be delivered to the Confederacy 鈥渄istinguishing and securing all your Rights.鈥澛�²²聽The treaty commissioners suggested to the Massachusetts House of Representatives the establishment of a 鈥淐ommittee of able Faithful and Disinterested Persons鈥� by the Government to 鈥渞eceive and adjust the claims of Lands in the parts Eastward of Sagadahock & Amoroscoggin Rivers & above Merry Meeting Bay,鈥� the only valid British settlement area under the compact.聽²³聽The House read and accepted the proposal and returned them as Instructions to the treaty Commissioners.²⁴聽The Commissioners stated that within twelve months of the conclusion of this 鈥淭reaty of Pacification,鈥� the commissioners would 鈥渁scertain the bounds of such claims & Challenges,鈥� 鈥渨ith a number of Indian chiefs appointed for that purpose.鈥�²⁵聽鈥淏efore their Just right & Title hath been duly Enquired into & made Manifest, & the Indians have had the full knowledge & understanding of such rights & Title,鈥� the commissioners stated that no British settlements were to be made beyond those lands.聽²⁶聽The Confederacy was ambivalent about the proposed claims commission concept, desiring the clarification document, but doubting the process, which was too much like a treaty conference. The Speaker informed the Commissioners that they could not accept the claims commission because such action would go 鈥渂eyond our Instructions鈥� from the Confederacy.²⁷

The initial imperial Charter of 1621 and the 1717 and 1719 Commission to the Governors of Nova Scotia ordered the Governor to 鈥渟end for the several heads of the said Indian Nations or clans, and promise them friendship and protection of His Majesty part.鈥�²⁸聽Having made no existing treaties with Great Britain and wishing to remain nonaligned,²⁹聽the M铆kmaw delleegates rejected the treaty no. 239 terms offered by the Nova Scotia delegates.聽³⁰聽After hearing the new terms, the M铆kmaq stated their own understanding of the words: they were supposed to 鈥減ay all the respect & Duty to the King of Great Britain as we did to ye King of France, but we reckon our selves a free People and are not bound.鈥�³¹聽On 15 December 1725, the Nova Scotia treaty commission, Major Paul Mascarene, in the Council Chamber in Boston, often new terms, which promised that the 鈥淚ndian shall not be molested in their persons, Hunting[,] Fishing and Planting Grounds nor in any other their lawfull Occassions by His Majesty鈥檚 subject or their Dependents鈥�.聽³²The M铆kmaq Delegates agreed to ratify the Wabanaki Compact at Annapolis Royal.

On 4 June 1726, the 鈥淐hiefs and Representatives [鈥�] with full power and authority, by an unanimous consent and Desire of the said Indian Tribes, are come in Compliance with the Articles Stipulated by our Delegates as aforesaid鈥� and do 鈥淪olemnly confirm & Ratify鈥� the 鈥�1725 Compact鈥�.聽³³聽Many copies of the ensuing 1726 ratification treaties exist, the multiple iterations and fragmentation of the treaties create many interpretative problems.聽³⁴聽For unexplained reasons, the British scribes divided the M铆kmaw ratification treaties into two separate documents: the first labeled 鈥淏ritish to Indians,鈥�³⁵聽the second labeled 鈥淚ndians to British鈥�.³⁶聽Over one hundred Aboriginal peoples signed the agreement, some identifying themselves as chiefs of the Mikmaw Nation. Among those signing were the Chief and Delegates from 鈥淐ape Sable,鈥� the Chief of Annapolis Royal, Chignecto, Minas, Cape Breton and Newfoundland.聽³⁷聽Thus, it was said that 鈥渁ll the Nova Scotia Tribes鈥� entered into the compact.³⁸

In the 鈥淏ritish to Indians鈥� written version of the treaty,聽³⁹聽鈥淗is Most Sacred Majesty, George of great Brittain鈥� promised the M铆kmaq district chiefs 鈥渁ll Marks of Favour, Protection & Friendship.鈥� The written text of the treaty mistranscribed Nova Scotia鈥檚 treaty commissioner Mascarene promises: 鈥淎nd I do further promise in the name of His honour the Lt Gov. R of the Province in Behalf of this Said Government, That the Said Indians shall not be Molested in their persons, Hunting, Fishing, [and Shooting &] Planting on their planting Grounds nor in any other Lawfull Occasions, by his Majesty鈥檚 Subjects or their Dependants.鈥�⁴⁰聽The sovereign promised legal enforcement of the treaty:

if any Indian are Injured by any of his Majesty鈥檚 Subjects or their Dependants they shall have Satisfaction and Reparation made to them According to his Majesty鈥檚 Law: Where of the Indians shall have the Benefit Equally with his Majesty鈥檚 other subjects.聽⁴¹

By ratifying the Wabanki compact, the prerogative treaties, the 鈥済reat King鈥檚 Talk,鈥� recognized and affirmed Aboriginal tenure as a reserved for the chiefs, and grantedeaceful occupation to those British settlers who had acquired an interest in M铆kmaw tenure by a fair, honest, and consensual purchase.

Distinct from the private enterprises such as Massachusetts Bay colony and New England, the sovereign affirmed the unceded and unpurchased Aboriginal tenure in the prerogative commission creating the royal colony of the Nova Scotia. The 1749 Commission to Cornwallis, establishing the royal colony of Nova Scotia,⁴²聽renewed the 1719 order requiring treaty of friendship and protection with the Indian nations and provided no grants of land in fee simple for land already disposed of by the sovereign, i.e. the reserved Aboriginal 鈥渓ands, Liberties and properties鈥� of the Wabanaki Confederacy and M铆kmaq Nation. The first condition of the commission stated the governor was 鈥渄irected to make grants of such land in fee simple as are not already disposed of by his Majesty to any person that shall apply to you for the same.鈥�⁴³聽Secondly, as a condition antecedent, the sovereign required that before the governor could grant any such land to British subjects, he had:

by & with the advice and consent of our said Council to settle and agree with the Inhabitants of our Province for such Lands, Tenements, & hereditaments as now are or hereafter shall be in our power to dispose of.⁴⁴

Reading these provisions together, the original constitution of Nova Scotia confirms that the reserved Aboriginal tenure could not be granted in fee simple by the governor, since they were already reserved for the Wabanaki Confederacy and Mikmaq nation. The Nova Scotia council had to settle and agree with the Mikmaw nation before any fee simple grants could be issued to colonists of their protected treaty lands.

This 鈥渟ettle and agree鈥� provision, an affirmation of the treaty order established in the Wabanaki Compact, witnessed an elaboration of the requirement of fair and honest purchase of Aboriginal tenure by the Governor for the British sovereign. It also prevented any private purchase of Aboriginal tenure. Only if the M铆kmaw Nation sold their ancient tenure and the Governor bought it for the Crown through prerogative treaties⁴⁵聽could the Governor grant lands to the British settlers in fee simple.

The mandatory Governor-in-Council property agreement and settlement with the Aboriginal nations or tribes under the 1749 Commission, presumably by treaties, were reinforced by other prerogative limitations on the exercise of colonial authority by the Crown. First, His Majesty made all potential legislative power subject to the 鈥渇urther powers鈥� of Royal Instructions and Commands under 鈥渙ur signet & sign manual or by order in our privy Council.鈥� Thus, the continuing supervision of Nova Scotia was to be carried out by the King-in-Council alone, acting through the issuance of prerogative Instructions. Second, the Commission also included a repugnancy clause; it required all law, statutes, and ordinances to be made 鈥渁greeable to the Laws and Statutes of this our Kingdom of Great Britain.鈥� Thus, the relevant rules and principles of the United Kingdom鈥檚 public law were also limitations of the colonial authorities and legislatures.⁴⁶聽A crucial part of the Statutes of Great Britain was the Statute of Frauds,聽⁴⁷聽which made written documents necessary in all transfer of legal estates, and applied to purchases of Aboriginal allodial tenure to the sovereign. In the subsequent treaties, however, the M铆kmaw Nation did not yield up or sell their land to the Crown; they only agreed to small British settlements within their Aboriginal tenure.聽⁴⁸聽On August 13-15, 1749, at a Council meeting held on board the ship, the Beaufort Transport, Cornwallis entered into a renewal 鈥渦pon the same footing鈥� as the 1726 treaty with the Chignecto M铆kmaq.聽⁴⁹聽The existence of Aboriginal tenure in Atlantic Canada is a question of law rather than a question of fact as in British Columbia, since it was recognized and established by these imperial compact and treaties.

In Atlantic Canada, colonial law has viewed Aboriginal tenure as a part of the Crown tenure, not as a distinct or sui generis land tenure system recognized and vested in the Aboriginal nations and tribes in prerogative treaties. The Supreme Court鈥檚 insight that Aboriginal tenure is a separate tenure from the common law tenure affirms the treaty reconciliation and resolves the third party interests under Crown grants as an issue of revenue sharing between the federal and provincial governments and Aboriginal peoples.

Most provinces of Atlantic Canada were created different than British Columbia. The constitution of Nova Scotia, New Brunswick, and Prince Edward Island were created by prerogative instruments and consist of treaty, royal commission and instruction to governors, and proclamation.⁵⁰聽Prince Edward Island in 1873 and Newfoundland in 1949 admission to Canada was effected by an imperial statute and is similar to British Columbia聽⁵¹

In the 1751 treaty negotiation with the Wabanaki Confederacy, Nova Scotia鈥檚 treaty commissioner Mascarene invited the Wabanaki and 鈥淢icquemaques鈥� to come to Chibucto to make peace, Mongaret of the Wabanaki Confederation said he would carry the message to them.⁵²聽In the 1752 negotiations, Grand Chief Cope told the Nova Scotia council that the M铆kmaq 鈥渟hould be paid for the land which the British had settled upon in this Country.鈥�⁵³聽He agreed to 鈥渂ring the other tribes of the Mickmack nation鈥� to the treaty conference.聽⁵⁴聽The Nova Scotia Council prepared an answer to the other tribes, in French and English, and promised that the Council 鈥渨ill not suffer that you be hinder from Hunting or Fishing in this Country as you have been use to do鈥� and no person shall 鈥渉inder their settlements鈥�, especially on the 鈥淩iver Shibenaccadie鈥�, nor shall meddle with the land where you are鈥�.聽⁵⁵聽On 22 November 1752, the M铆kmaw chiefs affirmed the existing Wabanaki Compact (1725), and their 1726 and 1749 ratification treaties thus creating the M铆kmaw Compact (1752).聽⁵⁶

The M铆kmaw Compact explicitly incorporated and continued the terns if Wabanaki Compact that reserved all M铆kmaw lands, liberties, and properties to the M铆kmaq that had not been conveyed or sold to the British in 1693, when no British subject possessed any land in Acadia or had purchased any of the Aboriginal tenure.聽⁵⁷聽The M铆kmaw Compact made the reserved Aboriginal tenure was a vested right by the treaty and an integral part of the constitutional law of the provinces. The Compact did not convey any M铆kmaw tenure to the Crown or subjects; it merely accommodated the existing lawful settlements and provide compensation for their use of settlement lands.⁵⁸

The Compact provided that British civil law, rather than political action, expressly protected the reservation of M铆kmaw tenure. In an innovative treaty article, Article 8 provided that the M铆kmaq were to be treated as equals to the British subjects and that in any controversy the M铆kmaq would be protected in their treaty rights in 鈥淗is Majesty鈥檚 Courts of Civil Judicature.鈥澛�⁵⁹聽This is a unique provision in Georgian treaties; the M铆kmaw rejected political solutions and criminal law of the Wabanaki Compact in favour of civil remedies.⁶⁰聽This legal implementation provision made the protection of the reserved Aboriginal tenure a vested legal right.

Six years after the compact, on 2 October 1758, and pursuant to the authority delegated to the sovereign by the M铆kmaq, a legislative Assembly was convened in Nova Scotia. British constitutional conventions establish 1758 as the date of the reception of the British law in old Nova Scotia as a settled colony聽⁶¹聽that included New Brunswick.聽⁶²聽British law was imported, except to the extent that the law was unsuitable to the circumstances of the colony, as for example, when inconsistent with the existing compact and treaties with the Aboriginal nations.聽⁶³聽Since the M铆kmaw Compact and its ratification treaties were an existing prerogative act made before the date of reception of the British common law,聽⁶⁴聽no colonial legislation was required to implement the provisions of the compact and treaties. The compacts and treaties were imperial obligations and part of the existing prerogative constitution of Nova Scotia.聽⁶⁵

After the end of the Seven Years War between the British and French,聽⁶⁶聽in 1760, a M铆kmaw delegation from French jurisdictions met with Governor-Chief Justice Belcher and the Legislative Assembly to renew and extend the compact to all parts of the Atlantic Canada previous held by the French.聽⁶⁷聽The 1760 treaty affirmed the previous compact and treaties, specifically the legal protection of Aboriginal tenure by British law. Chief Justice Belcher described of the legal nature of protection and allegiance under the compact and treaties:

Protection and allegiance are fastened together by links. If a link is broken the chain will be loose. You must preserve this chain entire on your part by fidelity and obedience to the Great King George the Third, and then you will have the security of his Royal Arm to defend you. I meet you now as His Majesty鈥檚 graciously honored Servant in Government and in His Royal Name to receive at this Pillar, your public vows of obedience to build a covenant of Peace with you, as upon the immovable rock of Sincerity and Truth, to free you from the chains of Bondage, and to place you in the wide and fruitful Field of British Liberty.⁶⁸

The 鈥淔ield of British liberties,鈥� Belcher promised the assembled chiefs, would be 鈥渇ree from the baneful weeds of Fraud and Subtlety.鈥澛�⁶⁹聽To ensure this, 鈥淸t]he Laws will be like a great Hedge about your Rights and properties鈥搃f any break this Hedge to hurt or injure you, the heavy weight of the Law will fall upon them and furnish their disobedience.鈥澛�⁷⁰

The M铆kmaw Compact, the inherited British Statutes of Frauds,聽⁷¹聽the 1761 Instructions,⁷²聽and the 1763 Proclamation聽⁷³聽protected the Aboriginal 鈥渓ands, Liberties and properties鈥� from any new settlements, interference or encroachment by colonial legislative assemblies, executive council, and the colonialists. Because of complaints to the British sovereign that 鈥渟ettlements had been made and possession taken of Land, the property of which they [the several Nations or Tribes of Indians] had by Treaties reserved to themselves by persons claiming the said lands under pretence of deeds of Sale and Conveyances illegally[,] fraudulently and surreptitiously obtained from the Indians鈥�.聽⁷⁴聽These prerogative laws protected the tenure of Aboriginal nations and peoples in old Nova Scotia, Prince Edward Island, Newfoundland and Labrador, who had not signed any treaties nor sold or ceded their lands to the British sovereign. These laws were part of the constitution of the provinces, and they prohibited royal governors from surveying or passing patent to the reserved Aboriginal lands, requiring all persons to be removed from unceded or unpurchased Aboriginal lands. They ended and prohibited any private purchases of Aboriginal tenure, and conferred exclusively upon the sovereign a sui generis fiduciary duty, both contractually and equitably, to protect their Hunting Grounds until the sovereign purchased the lands.聽⁷⁵

Prerogative treaties and law vested the Aboriginal tenure for the Aboriginal nations, as reserved allodial lands.聽⁷⁶聽The provinces and colonies had protective and administrative obligations and services to the sovereign to protected the prerogative interests in the land, the provinces did not have any ownership, legal estate or beneficial interests in the unpurchased Aboriginal lands. At Confederation, the sovereign and the provinces agreed to assign these protective and administrative obligations or services to the federal dominion.聽⁷⁷聽This change of administrative agents did not change the reserved sui generis tenure; these constitutional acts could not transfer to the federal government or the provinces 鈥渁ny legal estate in the Crown lands鈥� beyond that acquired by the sovereign in the compact and treaties.聽⁷⁸聽In Atlantic Canada, the 鈥渓and reserved for the Indians鈥� in s. 91(24) of the Constitution [British North America] Act, 1867听⁷⁹continued to be vested in Aboriginal nations by the explicit intent and wording of the British sovereign in the treaties and prerogative laws.⁸⁰

The entire justification for establishing Crown land titles in Atlantic Canada was embedded in a presumption that because of prerogative acts and colonial statutes protected the reserved Aboriginal 鈥渓ands, Liberties and properties鈥�, the Aboriginal lands was part of the sovereign land tenure. It was seen as a use rights under the common law doctrine of Crown tenure in Britain. The Delgamuukw guidelines rejected this presumption, and affirmed that the unifying principle of Aboriginal tenure is sui generis, it exist by Aboriginal law distinct from the common law fiction of Crown鈥檚 tenure.⁸¹聽The Supreme Court of Canada has taken pains to clarify that Aboriginal tenure is a proprietary interest and can compete on an equal footing with other proprietary interests,⁸²聽but cannot be interpreted by the common law traditions:

The inescapable conclusion from the Court鈥檚 analysis of Indian title up to this point is that the Indian interest in land is truly sui generis. It is more than the right to enjoyment and occupancy, although, as Dickson J. pointed out in Guerin, it is difficult to describe what more in traditional [English] property terminology.⁸³

In Mitchell v. Peguis Indian Band, Chief Justice Dickson stated the controlling interpretative principle of treaty wording is the Aboriginal peoples understanding of the treaties:

that aboriginal understanding of words and corresponding legal concepts in Indian treaties are to be preferred over more legalistic and technical constructions. This concern with aboriginal perspective, albeit in a different context, led a majority of this Court in Guerin, to speak of the Indian interest in land as a sui generis interest, the nature of which cannot be totally captured by a lexicon derived from European legal systems.⁸⁴

In 1985, the Supreme Court interpreted the 1752 treaty in the Simon case,⁸⁵聽overruled another colonial presumption in Syliboy that held 鈥淸t]he savages鈥� right of sovereignty even of ownership were never recognized鈥� by the Crown or international law.⁸⁶聽This precedent had ended any discussion of Aboriginal ownership by the Canadian courts. Chief Justice Dickson characterized the Syliboy decision and its rejection of Aboriginal right to sovereignty and ownership as both substantively unconvincing and a biased product of another era in Canadian law that is inconsistent with a growing sensitivity to native rights in Canada.⁸⁷

With the rebuttal of these legal presumptions in Atlantic Canada, the existing treaty reconciliations where the sovereign reserved and vested the Aboriginal tenure continues and has not been lawfully extinguished. The reserved Aboriginal tenure in the compact and treaties exists as distinct constitutional order of the Aboriginal peoples in the constitution of Canada This is a different situation from Aboriginal tenure in British Columbia. The vesting of Aboriginal tenure in public law before the creation of legislative assemblies made the sui generis tenure beyond the scope of the provincial laws. Neither Nova Scotia nor New Brunswick could amend or violate the reserved Aboriginal tenure by prerogative treaties or the royal instructions or proclamation. In the legal context of pre-confederation, provincial acts could not be inconsistent with the prerogative treaties and laws, thus the provinces did not have jurisdiction to unilaterally extinguishing a vested Aboriginal tenure by creating small Indian reserves.

The constitutionally-protected Aboriginal tenure in Atlantic Canada is the vested Aboriginal tenure in prerogative treaties and laws. Even if no treaty had reserved and vested the Aboriginal tenure, it would still a constitutionally protected tenure in the constitutional order. These existing prerogative laws were the source of federal delegated authority over lands reserved for the Indians in s. 91(24). In St. Catherine鈥檚 Milling decision, where the judicial committee of the privy council explained at confederation the 鈥渘atural鈥� meaning of the phrase 鈥淟and reserved for the Indians鈥� in s. 91(24) of the Constitution [British North America] Act, 1867 was:

sufficient to include all lands reserved, upon any terms or condition, for Indian occupation. It appears to be the plain policy of the Act, in order to ensure uniformity of administration, all such lands, and Indian affairs generally, shall be under the legislative control of one central authority.⁸⁸

In Delgamuukw, the Lamer Court held 鈥淟ands reserved for the Indians鈥� by s. 91(24) itself was under federal jurisdiction, rather than provincial jurisdictions. Chief Justice Lamer found that federal jurisdiction over 鈥淟ands reserved for the Indians鈥� included all unpurchased and unceded Aboriginal tenure and land rights in the province of British Columbia, as well as provincially-created Indian reserves.⁸⁹聽Chief Justice Lamer confirmed these principles in a contemporary context:

In St. Catherine鈥檚 Milling, the Privy Council held that Aboriginal title was such an interest, and rejected the argument that provincial ownership operated as a limit on federal jurisdiction. The net effect of that decision, therefore, was to separate the ownership of lands held pursuant to Aboriginal title from jurisdiction over those lands. Thus, although on surrender of Aboriginal title the province would take absolute title, jurisdiction to accept surrenders lies with the federal government. The same can be said of extinguishment鈥攁lthough on extinguishment of Aboriginal title, the province would take complete title to the land, the jurisdiction to extinguish lies with the federal government.⁹⁰

Additionally, Chief Justice Lamer noted, 鈥渆ven if the point were not settled, I would have come to the same conclusion.鈥�⁹¹聽No imperial acts have changed the vested Aboriginal tenure in the prerogative constitutional of Nova Scotia and New Brunswick between confederation and constitutional amendment in 1982, such as the western provinces in the Constitution Act, 1930⁹²聽and the Natural Resource Transfer Agreements, 1930.⁹³

The Lamer Court held that when British Columbia was admitted to confederation in 1871 鈥渢hat jurisdiction over aboriginal title must vest with the federal government,鈥�⁹⁴聽implying 鈥渢he jurisdiction to legislate in relation to Aboriginal title鈥�, and 鈥渢he jurisdiction to extinguish that title.鈥�⁹⁵聽This vested jurisdiction operates to preclude provincial jurisdiction to make laws⁹⁶聽or extinguish Aboriginal tenure or rights, 鈥渂ecause the intention to do so would take the law outside provincial jurisdiction鈥�:⁹⁷

s. 91(24) protects a core of federal jurisdiction even from provincial laws of general application, through the operation of the doctrine of interjurisdictional immunity. That core has been described as matters touching on 鈥淚ndianness鈥� or the 鈥渃ore of Indianness鈥�. [鈥�] It follows that aboriginal rights are part of the core of Indianness at the heart of s. 91(24).⁹⁸

The division of powers precludes provincial regulation over land reserved for the Indians. As Lamer stated, 鈥淸t]he vesting of exclusive jurisdiction with the federal government over Indians and Indian lands under s. 91(24), operates to preclude provincial laws in relation to those matters.鈥�⁹⁹聽This is a federal responsibility shared with the Aboriginal peoples of Canada in accordance with section 35(1). These principles should apply to the admission of Prince Edward Island in 1873 and Newfoundland in 1949 to confederation.

In Atlantic Canada, the Delgamuukw guidelines and principles affirm the constitutional validity of Aboriginal tenure reserved in the prerogative treaties and vested in imperial laws.¹⁰⁰聽Reserved and unpurchased Aboriginal tenure in Atlantic Canada has not been extinguished by the sovereign or superseded by federal or provincial law or settlement.¹⁰¹聽A unified Supreme Court of Canada in Sparrow, held that s. 35(1) is not a codification of the existing or accumulated case law on Aboriginal or treaty rights.¹⁰²聽The Court affirmed that provincial or federal acts or regulations could not extinguish constitutional rights of Aboriginal peoples. It held that s. 35(1) cannot be read so as to incorporate the specific manner in which constitutional rights were regulated before 1982,¹⁰³聽and stated that federal-provincial statutory or regulatory control of a constitutional right does not mean that the right is extinguished, even if the control is exercised in 鈥済reat detail.鈥澛�¹⁰⁴聽Finally, the Court stated that the sovereign鈥檚 intention is controlling and extinguishment of a constitutional right could only be proven if the sovereign鈥檚 written command is clear and plain.¹⁰⁵聽The Court declared that s. 35(1) not only creates a constitutional fiduciary duty on the federal government for Aboriginal peoples, but also operates as a 鈥渟trong鈥� limitation on the legislative powers of the federal Parliament¹⁰⁶聽as well as provincial Legislatures.¹⁰⁷聽No reason exists why these constitutional principles do not apply in Atlantic Canada to nullify any inconsistent provincial legislation prior to Confederation or federal legislation after Confederation.

Together the British Columbia Court of Appeals and the Supreme Court rejected federal and provincial Crown arguments that prior to 1982 unrecognized Aboriginal tenure was extinguished. It denied each of their five extinguishment theories: that the assertion of Crown sovereignty had extinguished Aboriginal tenure; that colonial land legislation before Confederation extinguished the Aboriginal peoples鈥� relations to the land; that the creation of land grants by British Columbia to settlers extinguished Aboriginal tenure because the Aboriginal people were precluded from sustaining their relationship to the land; that the establishment of federal Indian reserves in British Columbia extinguished Aboriginal tenure because the Aboriginal peoples 鈥渁bandoned鈥� their territory; and that s. 88 of the Indian Act allowed provincial laws of general application to extinguish Aboriginal rights. As Justice Hall had said to similar arguments in Calder, the Court said these arguments are 鈥� self-destructive.鈥�¹⁰⁸聽Chief Justice Lamer declared that the Crown failed to establish any legal basis to justify the legal dispossession of Aboriginal peoples by provincial authority.¹⁰⁹

In reviewing the trial judges鈥� decision in Delgamuukw, the British Columbia Court of Appeal reversed the trial judge鈥檚 conclusion that before Confederation there had been blanket extinguishment of Aboriginal tenure or rights.聽¹¹⁰聽The Court of Appeal held that a trial judge would have to make detailed determinations about the location and scope of existing Aboriginal tenure and the sovereign鈥檚 clear and plain intent and wording to extinguish it.¹¹¹聽This issue was not appealed to the Supreme Court, but should be applied to vested Aboriginal tenure in pre-confederation Atlantic Canada.

In Delgamuukw, the Lamer Court was faced with three specific extinguishment issues: whether the province of British Columbia, from the time it joined Confederation in 1871, until the entrenchment of s. 35(1) in 1982, had the jurisdiction to extinguish the tenure or rights of Aboriginal peoples in that province; if the province was without such jurisdiction, whether provincial laws of general application that were not 鈥渋n pith and substance鈥� aimed at the extinguishment of Aboriginal rights, could be implied to extinguish; and whether a provincial law, which could otherwise not extinguish Aboriginal tenure or rights, could be given that effect through referential incorporation by s. 88 of the federal Indian Act.¹¹²

The Court declared that the province never had constitutional authority to extinguish sui generis Aboriginal tenure, that it had never been extinguished in the past, and that Aboriginal tenure continues as a constitutionally protected tenure in British Columbia that must be respected by courts.¹¹³聽These principles and a similar conclusion should be applied to vested Aboriginal tenure in confederated Atlantic Canada.

The absence of any purchase or cession of the vested Aboriginal tenure by the sovereign prior to 1982 creates a Aboriginal peoples jurisdiction over all their 鈥渓ands reserved for the Indians鈥� in Atlantic Canada. In Delgamuukw, Chief Justice Lamer restated Sparrow鈥檚 principle that to be recognized and affirmed by s. 35(1) Aboriginal tenure or rights must have existed in April 17, 1982; rights that were extinguished by the sovereign before that time are not revived by the provision.¹¹⁴聽The Supreme Court in Van der Peet held that under s. 35(1), Aboriginal tenures and rights cannot be extinguished:

At common law Aboriginal rights did not, of course, have constitutional status, with the result that Parliament could, at any time, extinguish or regulate those rights [鈥�] it is this which distinguishes the Aboriginal rights recognized and affirmed in s.35(1) from the Aboriginal rights protected by the common law. Subsequent to s.35(1) Aboriginal rights cannot be extinguished and can only be regulated or infringed consistent with the justificatory test.¹¹⁵

Aboriginal tenure at federal common law is protected in its full form by its constitutionalization in s. 35(1)¹¹⁶聽by the federal government and Aboriginal peoples. No provincial authority exists over these lands, since the constitution and the federal common law are paramount to provincial laws.¹¹⁷

No Canadian court has every found where the Aboriginal peoples in Atlantic Canada every sold their vested treaty lands to the sovereign.¹¹⁸聽The last judicial review of the Nova Scotia Court of Appeal to review the legal record, MacKeigan C.J in Isaac stated:

No Nova Scotia treaty has been found whereby Indians ceded land to the Crown, whereby their rights on any land were specifically extinguished, or whereby they agreed to accept and retire to specific reserves, although thorough archival research might well disclose records of informal agreements, especially in the early 1800鈥檚 when reserves were established by executive order. [鈥�] I have been unable to find any record of any treaty, agreement or arrangement after 1780 extinguishing, modifying or confirming the Indian right to hunt and fish, or any other records of any cession or release of rights or lands by the Indians. [鈥�] The review has confirmed that Indians have a special relationship with the lands they occupy, not merely a quaint tradition, but rather a right recognized in law.¹¹⁹

No archival evidence exists that they Aboriginal peoples sold or ceded their Aboriginal tenure to the British sovereign or that the sovereign authorized the executive orders or any extinguishment, modification, cession or purchase of the reserved lands. No sovereign acts provide for grants in fee simple contrary to prerogative treaties or laws. As Justice Lamer stated in Sioui about contemporary treaties in Quebec:

The British Crown recognized that the Indians had certain ownership rights over their land 鈥�[and] allowed them autonomy in their internal affairs, intervening in this area as little as possible.¹²⁰

The lands reserved for the Indians in Atlantic Canada under prerogative acts have not been sold or transferred from Aboriginal tenure to Crown tenure.

In Delgamuukw the Court noted that Aboriginal title and rights recognized and affirmed by s. 35(1) are not absolute. According to the division of powers doctrine, Aboriginal rights may be infringed, both by the federal (e.g., Sparrow) and provincial (e.g., C么t茅 governments).¹²¹聽However, the Lamer Court declare that such justified infringements of s. 35(1) requires fair compensation to Aboriginal peoples:

In keeping with the duty of honour and good faith on the Crown, fair compensation will ordinarily be required when Aboriginal title is infringed. The amount of compensation payable will vary with the nature of the particular Aboriginal title affected and with the nature and severity of the infringement and the extent to which Aboriginal interests were accommodated.¹²²

This guideline affirms the existing principle of both common law and statute that the Crown may not expropriate a property interest without compensation, and applies the principle to external regulation of Aboriginal tenure. This is especially relevant when prerogative treaties and law vest the Aboriginal tenure in the Aboriginal nations, tribes, or peoples.

Any provincial or federal infringement of the reserved Aboriginal tenure under prerogative laws requires fair compensation. Both the Court of Appeal and the Supreme Court in Delgamuukw have suggested that compensation is appropriate for past federal and provincial regulation of Aboriginal tenure.¹²³聽Justice Macfarlane for the majority of British Columbia Court of Appeal held that compensatory damages from the province might be the appropriate remedy for pre-1982 regulatory infringements of Aboriginal tenure.¹²⁴聽Justice La Forest in the Supreme Court declared that Aboriginal tenure is a compensable right that can be traced back to the Royal Proclamation, 1763.¹²⁵聽These principles are applicable to the actions of the provinces of Atlantic Canada toward Aboriginal law and tenures.

Fair compensation is a revenue-sharing issue between the Crown and the Aboriginal peoples, rather than an issue between the Aboriginal peoples and the purchasers from the Crown. The Supreme Court and the Privy Council held in St. Catherine鈥檚 that the provinces under s. 109 could acquire a beneficial interest in Aboriginal territories as a source of revenue only when the estate of the Crown is disencumbered of the Indian tenure.¹²⁶聽In Delgamuukw, the Court rejected the provincial Crown argument that the imperial Parliament in s. 109 of the Constitution Act, 1867 鈥渧ested鈥� the province with the underlying title to Aboriginal tenure.¹²⁷聽Moreover, the Lamer Court held that Aboriginal tenure in British Columbia was not extinguished by provincial or federal legislation and the province had not acquired beneficial interest under s. 109. Since Aboriginal tenure in Atlantic Canada has not been disencumbered neither the provincial nor federal Crown has any 鈥渦ltimate鈥� interest, since s. 35(1) has vested such unextinguished tenures in the Aboriginal peoples. Their Lordships of the privy council admitted in St. Catherine鈥檚 that if the Ojibwa had been 鈥渢he owners of fee simple of the territory鈥� at confederation, the province might not have derived any benefit from the cession, since the land was not vested in the sovereign at Confederation.¹²⁸聽This is exactly the situation of the Wabanaki and M铆kmaw tenure at confederation, it was a explicit vested sui generis tenure recognized and affirmed by the British sovereign in the compact, treaties, and prerogative law that would prevent the province or the federal government from deriving any beneficial interest over the reserved territory. Without a consensual sale and purchase of reserved Aboriginal tenure before 1982, the intangible future interest in the contemplation of the sovereign was never perfected, and under s. 35(1) of the Constitution Act, 1982, the reserved Aboriginal tenure is vested in the Aboriginal peoples according to their laws.

In sum, the vested Aboriginal tenure by prerogative treaties and law has been affirmed by s. 35(1) of the Constitution Act, 1982 as a constitutional right to the land itself. The Aboriginal peoples had every right to rely on the Crown鈥檚 promises that it intended to respect their tenure protected under their compact and treaties. They were entitled by their compact and treaties to assert their Aboriginal law over their reserved ancestral lands as a legal right, a civil right. They were entitled to have their settled expectations transformed into positive constitutional laws creating reliance-based rights. A fundamental principle of British law is that courts will assume that the British sovereign intends that the right of property of the inhabitants of any newly ceded territory will be fully respected.¹²⁹

As the Delgamuukw constitutional principles and guidelines illustrate the passage of time cannot validate an unconstitutional statutes or unlawful settlements and uses.¹³⁰聽Colonial administration or regulation of these protected tenures or rights, either provincially or federally, could not legally extinguish this distinct legal realm or the reserved tenure, since such action would be a violation of the fundamental constitutional regime of Great Britain and Canada and ultra vires.¹³¹聽An act that is inconsistent with the constitution of Canada has never been and cannot become valid law, since its radical invalidity remains with the act until it is either repealed or struck down.¹³²

Aboriginal and treaty tenures and rights do not cease to exist because the Crown鈥檚 servants fail to secure them. To make the suggestion of implied extinguishment by colonial settlements of constitutional rights, especially those vested or protected Aboriginal tenure by prerogative laws, is to attempt to enshrine the perverse notion that rights are not to be legally protected in precisely those situations when protection is essential. In the response to Delgamuukw guidelines it is now essential for the federal government to turn its resources to the issue of negotiation, compensation, and remedies for those who have been victimized by centuries of illegal and colonialist conduct. The highest court in Canada has again rejected Atlantic Canada鈥檚 old colonial legal mentality and its defenses against Aboriginal tenure.

Footnotes

1Delgamuukw惫.听British Columbia.[1997] 3 S.C.R. 1010.

2.Constitution Act, 1982,聽being Schedule B to the聽Canada Act, 1982聽(U.K.), 1982, c.11.

3Ibid. Re Reference by the Governor General in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada聽(1998), 161 D.L.R. (4th) 385 at paras. 71-2

4听Delgamuukw, supra聽note 1 at para. 138.聽The Report of the Royal Commission on Aboriginal Peoples聽(Ottawa: Minister of Supply & Services, 1996) [hereinafter聽RCAP Report]. stated Aboriginal tenure being 鈥渞ecognized and affirmed by s.35(1) and described it as a 鈥渞eal interest in land that contemplates a right of right with respect to land and resources vol.2 at 573.

5听Ibid.聽at para. 184

6听Ibid.聽at para. 156. The court stated: 鈥渆xclusivity is a common law principle derived from the notion of fee simple ownership and should be imported into the concept of Aboriginal title with caution鈥�.

7听Ibid.聽at para. 166. Compare to Justice L鈥橦eureux-Dube鈥檚 characterization in聽R.聽惫.听Van der Peet, [1996] 2 S.C.R. 507 at para. 115: 鈥淭he traditional and main component of the doctrine of Aboriginal rights relates to Aboriginal title, i.e. the聽sui generis聽proprietary interest which gives Native people the right to occupy and use the land at their own discretion, subject to the Crown鈥檚 ultimate title and exclusive right to purchase the land鈥�; citing聽St. Catherine鈥檚 Milling and Lumber Co.聽惫.听The Queen聽(1888), 14 A.C. 46 at 54 (P.C.) [hereinafter聽St. Catherine鈥檚闭;听Calder聽惫.听Attorney-General of British Columbia,聽[1973] S.C.R. 313, at 328, Judson J., and at 383, Hall J; and,聽Guerin听惫.The Queen聽[1984] 2 S.C.R. 335, at. 378 and 382, Dickson J. (as he then was) 鈥淎boriginal title lands are lands which the Natives possess for occupation and use at their own discretion, subject to the Crown鈥檚 ultimate title鈥� see聽Guerin, ibid.聽at 382.

8听Delgamuukw, supra听苍辞迟别听l聽at para. 155.

9 J.Y. Henderson, 鈥淢ikmaw Tenure in Atlantic Canada鈥� (1995) 18(2) Dal. L.J. 216.

10 Cumming & Mickenberg, eds.,聽Native Rights in Canada聽(Toronto: Indian-Inuit Assoc. of Canada, 1972), Art. 4 at 295.

11听Ibid.聽at 297 in Art. 3: 鈥淭hat her Majesty鈥檚 Subjects, the British, shall & may peaceably & quietly enter upon, imprive [sic], & forever enjoy, all and singular their Rights of Land & former Settlements, Properties, & possessions with the Eastern Parts of the said Province of Massachusetts Bay and New Hampshire, together with all the Islands, Isletts, Shoars, Beaches, & Fisheries within the same, without any molestation or claim by us or any other Indians. And be in no ways molested, interrupted, or disturbed therein. Saving unto the said Indians their own Gounds, & free liberty for Hunting, Fishing, Fowling and all other their Lawful Liberties & Privileges, as on the eleventh day of August in the year of our Lord God One thousand six hundred & ninety three.鈥�

12 While this article is more specific than the聽Wapapi Akonutomakononol,聽see generally R. M. Leavitt and D. A. Francis, eds.聽Wapapi Akonutomakonol. The Wampum Records. Wabanaki Traditional Law as recounted by Lewis Michell聽(Fredericton, N.B.: Micmac-Maliseet Institute, 1990). The Wampum Records creates an 鈥渋mplemented fence鈥� or boundary between the British and the Wabanaki legal jurisdictions, so that there would be no bothering one another anymore. The concept of 鈥渇orever鈥� is聽askomiw.

13听E.g.,聽Public Archives of Canada [PAC]; Colonial Office [CO] 5 898 at 173-174v.

14 Public Archives of Nova Scotia [PANS] Record Group [RG] 1, vol. 12 doc. 3 at 15, Dec. 1725:: PAC, Manuscript Group [MG] 11; CO 217, Nova Scotia 鈥淎鈥� [NSA] vol. 16 at 203, 207;聽Native Rights, supra聽note 10 at 300-02

15Ibid.聽at art. 10. The Treaty Commissioners often used the distinguishing terms of 鈥渙ur and your Lands鈥�.

16听Ibid.聽art. 3.

17听Ibid.聽art. 4.

18 J. P. Baxter, ed.,聽Documentary History of the State of Maine聽(Portland, Me.: Fred L. Tower Co. & Maine Historical Society, 1916) [hereinafter DHM] vol. XXIII at 196 (22 Nov. 1725 in the House of Representatives).

19听Ibid.聽NSA American and West Indies, 1724-1725, 4 August 1726.

20 Letter with Enclosures, of Lieutenant Governor Dummer to Duke of Newcastle, 8 Jan. 1726. CO, 5/898.

21 DHM, supra note 18 vol. XXIII at 416 (Report of Conference at the Fort of St. George鈥檚 Mass. Involving Nova Scotia鈥檚 treaty commission Mascarene, 24 August, 1751)

22 DHM,听蝉耻辫谤补聽note 18, at 196 (22 Nov. 1725.)

23听Ibid.聽at 196, Art. 1, 23 Nov. 1725.

24听Ibid.聽at 197.

25听Ibid.聽at Art.2.

26听Ibid.聽at Art.3.

27听Ibid.聽at 200, 26 Nov. 1725

28 Instruction to Governor Philips of Nova Scotia, June 19th, 1719, in L. W. Labaree, ed.,聽Royal Instructions to British Colonial Governors, 1670-1776聽vol. II (New York: D. Appleton, Century Co., 1935), No. 673 at 469 [hereinafter Labaree,聽Royal Instructions]. See 鈥淪tatement prepared by the Council of Trade and Plantations for the King, September 8th, 1721鈥�: 鈥淚t would likewise be for your Majesty鈥檚 service that the sev. Governts of your Majesties Plantations should endeavor to make treaties and alliances of friendship with as many Indian nations as they can [鈥�].鈥� Cited Levi, et al., 鈥淲e Should Walk in the Tract Mr. Dummer Made鈥� (Oct. 1st and 2nd 1992) at 35 [unpublished document distributed at New Brunswick Chiefs鈥� Forum on Treaty Issues, St. John, New Brunswick].

29 鈥淔amily Treaty with the British Officials at Annapolis Royal, 7 January 1723鈥澛�The New England Courant聽(7 January 1723). It was signed by the members of the Grand Claude family following the imprisonment of their relatives. See also Letter of John Doucett to the Board of Trade, 29 June 1722. PAC, MG11 CO 217/4 at 118. See also A.M. MacMechan, ed.,聽Original Minutes of His Majesty鈥檚 Council at Annapolis Royal, 1720-1739聽(Halifax: Public Archives of Nova Scotia, 1908) at 37-41 [hereinafter聽Council Minutes].

30 PAC, MG 11, CO 217, NSA, vol. 16 at 207: PANS CO 217, vol. 4 at 321, 348, 350.

31听Ibid.聽vol. 17 at 2, December 1725.

32 Enclosed in letter from Lt. Governor Armstrong to Council of Trade and Plantations [Newcastle], C. Headlam, ed. Calendar of State Papers, Colonial Series, Newcastle dated July 27, 1726, America and West Indies, vol 29 fol. 77; PANS CO 217, vol. 4 at 321, 348, 350 (often labelled Number 239). In a 1751 trrreaty conference Mascarene that he was at the ratification treaties at Casco Bay, Annapolis Royal, Chibucto, see聽supra聽note 21.

33听Ibid.聽Promises/Ratification of John Ducett, Lt. Gov. of Annapolis Royal to the Tribes in Nova Scotia, signed at Annapolis Royal 4 June 1725. PAC, MG11 CO 217, NSA, vol. 5 at 3-4;聽Ibid.聽vol. 17 at 36-41:聽Ibid.聽vol. 38 at 108-108v, and 116-116v.; PANS CO 217, vol. 4 at 321; PANS CO 217, vol. 38 at 109 (the original parchment copy has not been found).

34听Ibid.聽See PAC, MG 11, CO 217, NSA, vol. 17 at 40; Promises/Ratification of Cape Sables, Annapolis River, Pontiquet, Minis and Passamaquady Indians to Gov. of N.S. PANS, Signed at Annapolis Royal 4 June 1726. CO 217, vol. 4 at 350; an identical text with different signatures is found in Promises/Ratification of St. John鈥檚, Passamaquady, Cape Sable, Chuabouacady, LaHave, Minas and Annapolis River Indians to Gov. of N.S. signed at Annapolis Royal 4 June 1726. PANS, CO 217, vol. 38, 108; PANS CO 217, vol. 4 at 320; Promises/Ratification of St. Jones, Cape Sables, Chubenakady, Rechibutou, Jediak, Minas, Chiskanecto, Annapolis River, Eastern Coast Micmacs to Gov. of N.S., signed at Annapolis Royal 4 June 1726. PANS CO 217, vol. 38 at 116, also an identical text with different signatures.

35听Ibid. British to Indians Treaty聽1726 (U.K.), 12 Geo I. PAC, MG11 CO 217, NSA, vol. 5 at 3-4; Promises/Ratification of John Ducett [also spelled Doucette in the documents], Lt.Gov. of Annapolis Royal to the Tribes in Nova Scotia, signed at Annaoplis Royal 4 June 1725.聽Ibid.聽vol. 17 at 36-41 (original parchment copy has not been found)聽Ibid.聽vol. 38 at 109.

36听Ibid.聽Promises/Ratification of Cape Sables, Annapolis River, Pontiquet, Minis and Passamaquady Indians to Gov. of N.S. signed at Annaoplis Royal 4 June 1726. PAC, MG 11, CO 217, NSA, vol. 17 at 40; PANS, CO 217, vol. 4 at 350; CO 217, vol. 4 at 82-83.

37 PAC, NSA, MG11 CO 217, vol. 17 at 43

38听Ibid.聽at 40-43.

39 CO 217, vol.4 at 82.

40听Ibid.听颁辞尘辫补谤别,听supra聽note 32. In some copies of the treaty the words 鈥渁nd Shooting &鈥� appear.

41听Ibid.

42 Labaree,聽Royal Instructions, supra聽note 28, at 581-82.

43听Ibid.聽See generally L.W. Labaree,聽Royal Government in America: A Study of the British Colonial System Before 1783 (New Haven, Conn.: Yale University Press, 1930).

44听Ibid.聽This section applies the British principle of continuity of laws to the new royal colony. This principle is called the doctrine of Continuity in British law, and reserved rights in the United States. The principle of continuity of property rights provides that property rights, once established, continue unaffected by a change of sovereignty unless positively modified or abrogated by the new sovereign (Campbell v. Hall聽(1774) 1 Cowp. 204. at 895-96). This principle has been held to apply to Aboriginal tenure by the highest courts in the United States, Great Britain, and Canada. See聽Worcester聽惫.听Georgia, 31 U.S. (6 Pet.) 711 (1835) at 734 [hereinafter聽Mitchell闭;听R.聽惫.听Symonds聽(1847), [1840-1932] N.Z.P.C. Cases 387;聽Nireaha Tamaki聽惫.听Baker聽(1901), [1901] A.C. 561 at 579 (P.C.);聽Re Southern Rhodesia聽(1918), [1919] A.C. 211 at 234 (P.C.);聽Amodu Tijani聽惫.听Southern Nigeria (Secretary),聽[1921] 2 A.C. 399 at 404;聽R.聽惫.听Calder, supra聽note 7;聽Guerin聽惫.听The Queen,聽[1984] 2 S.C.R. 335 at 377-78, [1985] 1 C.N.L.R. 120. The Crown provided the correct procedure for settling and agreeing with the Inhabitants by public cession provisions of the聽Royal Proclamation of 1763,聽R.S.C. 1970, App. II, no. 1 [hereinafter聽Royal Proclamation]; J. Borrows, 鈥淐onstitutional Law from a First Nation Perspective: Self-Government and the Royal Proclamation鈥� (1994) 28 U.B.C. L.Rev. 1 at 15-19; and B. Slattery,聽The Land Rights of Aboriginal Canadian Peoples, as Affected by the Crown鈥檚 Acquisition of their Territories聽(Saskatoon, Sk.: College of Law, University of Saskatchewan, 1979).

45 Labaree,聽Royal Instructions, supra聽note 42.

46听Ibid.

47 1677 (U.K.), 29 Car. II, c. 3

48听Instructions, supra聽note 42.

49 PANS RG 1, vol. 209; see letter Gov. Cornwallis to Duke Bedford, PANS CO 217. The chiefs brought a copy of the treaty with them. One of the recorded treaties in the PANS was not Mascarene promises or the 1726 treaty, but rather the rejected proposed treaty of 1 Dec. 1725 (treaty no 239),聽supra聽note 30.

50 J.E. Read,,, 鈥淭he Early Provincial Constitutions鈥� (1948) 26 Can. Bar. Rev. 621,

51听Prince Edward Island Term of Union, 1873聽(U.K.) and聽Newfoundland [British North America ] , Act, 1949聽(U.K.), R.S.C. 1985, Appendix II, Nos. 12 and 32.

52听Supra聽note 21 at 417, 419

53 T. Akins, ed.,聽Selections from the Public Documents of the Province of Nova Scotia聽(Halifax: Annand, 1869) at 671.(14 September 1752). This is the colonizers鈥� version and text of the meeting. Mi鈥檏maq tradition says that the Grand Chief required payment for the British settlements.

54听Ibid.

55听Ibid.聽at 673 (16 September 1752)

56听Native Rights, supra聽note 10 at 307-09; Enclosure in letter of Gov. Hopson to Earl of Holdernesse, PANS, CO 217, vol. 40, at 371

57听Ibid.,聽Art. 1. The date of possession had to be before 1693 according to the Wabanaki Compact. See聽Native Rights, supra聽note 10 at 295. For actual possession in 1693 to 1760. See A.H. Clark,聽Acadia: The Geography of Early Nova Scotia to 1760聽(Madison: University of Wisconsin Press, 1968).

58 Mikmaw Compact, 1752, in聽Native Rights,听蝉耻辫谤补 note 10 at Art. 5. This is the start of the Crown鈥檚 notion of equalization payments and a redistributive economy economy.

59听Ibid.聽Art. 8 clarifies Article 6 of 1725 compact and Article 4 of 1726 and 1749 Mikmaw treaties. Article 6 of the Wabanaki Compact, 1725 provided that 鈥渘o private Revenge shall be taken鈥� by either the Wabanaki or the British. Instead, both sovereigns agreed to submit any controversies, wrongs or injury between their people to His Majesty鈥檚 Government for 鈥淩emedy or induse there of in a due course of Justice.鈥� Article 6 affirmed by Mi鈥檏maq in 1726 and 1749, Article 7. Compared with the decline of feudal tenures, and corresponding development of central national legal systems, the European treaty order began to specify the effect of boundary changes on access to courts, jurisdictional clauses, and choices of law. Article VIII of the聽Treaty of Utrecht.听罢丑别听Treaty of Paris聽continues this article, but also began a reference to applying 鈥渢he Law of Nations鈥� to the disputes which might arise in the future. See A. Shortt and A.G. Doughty, eds.,聽Documents Relating to the Constitutional History of Canada 1759-1791,聽vol. 1. 2nd ed. (Ottawa: J. de L. Tach茅, King鈥檚 Printer, 1918).

60听Simon聽惫.听R,聽[1985] 2 S.C.R. 398, 62 N.R. 366 [hereinafter聽Simon聽cited to S.C.R.].

61听Uniacke聽惫.听Dickson聽(1848), 2 N.S.R. 287 (S.C.N.S.) P.W. Hogg,聽Constitutional Law of Canada, 3rd ed. (Toronto: Carswell, 1992) at 30, finds this dubious and argues that dates of reception thus derived are quite artificial and are really cut-off dates.

62 This is different from the idea that the first colonist carried as a birth right the British law and filled any legal void in the new territory. This idea was also limited by the courts鈥� determination if they were suitable to the circumstance of the territory, such as prerogative treaties. Hogg聽supra聽61 at Chapter 2, at 27-38. The 1763 Proclamation 鈥渁nnexed鈥� Cape Breton and Prince Edward Island to old Nova Scotia鈥檚 government, while reserving the Mi鈥檏maq Hunting Grounds in all places, thus creating a different date for the reception of British law. No other documents 鈥渁nnexed鈥� the reserved Hunting Grounds to any colony or to the federal government.

63 Hogg,聽supra聽note 61 at 30, 32.

64听Ibid.聽at 28.

65 Sir W. Blackstone,聽Commentaries on the Laws of England聽(Oxford: Clarendon Press, 1765-69) vol. IV at 67-68. See especially, Justice Strong in聽St. Catherines Milling and Lumber聽惫.听RR.聽(1887), 11 S.C.R. 577: 鈥淸A]t the date of confederation the Indian, by constant usage and practice of the crown, were considered to possess a certain proprietary interest in the unsurrendered lands which they occupied as hunting grounds; that this usage had either ripened into a rule of the common law as applicable to the American Colonies, or that such a rule had been derived from the law of nations and had in this way been imported into the Colonial law as applied to Indian Nations [鈥�]鈥� at 615-16.

66 In Article 40 of the French Capitualtion to the British in 1760, the King promised to maintain the tribes in their Aboriginal lands. See A. Shortt and A.G. Doughty,聽supra聽note 59 pt. 2, Sessional Papers No. 18. Article 40 continues the terms of the聽Treaty of Utrecht聽and Art. II the聽Treaty of Paris聽1763 also reaffirmed it. Additionally, Article XXIII of the聽Treaty of Paris聽confirmed Article 40 of the Capitulation. Both the聽Articles of Capitulation聽and the聽Treaty聽ends any arguments about abrogation by hostilities or conquest. See especially,聽颁补尘辫产别濒濒听惫.听Hall, supra聽note 44 at 895-96 (articles of capitulation upon which the country is surrendered and the articles of peace by which it is ceded are sacred and inviolable accordiiing to their true intent and meaning.)

67 PANSRG 1, vol. 37, doc. 14 (Treaties of Peace and Friendship with the Mirimechi, Jediack, Pogmouch, and Cape Breton Micmacs at Halifax, 25 June 1761). For a list of the chiefs who had to ratify the compact see 鈥淐ol. Fry Letter to Governor Belcher, 7 March 1760鈥� [1760] London Magazine at 377 and聽Collections of the Massachusetts Historical Society,聽(Boston: The Society, from 1792), vol 10 at 115. The Wabanaki reaffirmed peace on the basis of their 1725 compact on 13 February 1760; B. Murdoch,聽Epitome of Laws of Nova Scotia,聽vol. II (Halifax: J. Howe Publishers, 1832) at 384-5.

68 Mikmaw Compact,聽supra聽note 58; PAC NSA: American and West Indies, vol. 1 at 699-700.Ibid.

69听Ibid.

70听Ibid.聽The metaphor of 鈥渢he Hedge鈥� is directly related to the Wabanaki concept of 鈥渇ence (implement)鈥� (lahkalusonihikon) or territorial boundaries in the聽Wapapi Akonutomakonol聽and its laws (tapaskuwakonol). Leavitt & Francis,聽supra聽note 12 at 56-57.

71听Supra聽note 47.

72 3 Geo. III; CO 217/19:27-28; PANS Micro reel B-1028 4 May 1762. Implemented by Gov. Belcher Proclamation of 4 May 1762 and Act for the Regulation of Indian Trade, 1762 PANS, CO 217, vol. 19 at 33. See J. Singer, 鈥淲ell Settled?: The Increasing Weight of History in American Indian Land Claims鈥� (1994) 28 Georgia L. Rev. 481 at 503-508.

73 7 October 1763; Privy Council Register, Geo. III, vol. 3 at 102; PRO, c. 6613683; R.S.C. 1970, App. at 123-29. Original text is entered on the Patent Rolls for the regnal year 4 Geo. III, is found in the United Kingdom PRO: c. 66/3693 (back of roll); C.S. Brigham, ed.,聽British Royal Proclamations Relating to America聽vol. 12 (Worcester, Mass.; American Antiquarian Society, 1911) at 212-18;聽Native Rights,听蝉耻辫谤补 note 10 at 285-292.

74 1761 Instruction聽supra聽note 72 and 176lamation,聽supra聽note 73.

75听Native Rights, supra聽note 10 at 285-286.

76 See, Mikmaw Tenure in Atlantic Canada,聽supra聽note 9 at 267-296.

77听Ibid.聽at 55.

78听Ibid.聽at 55.

79 U.K., 30 & 31 Victoria, c. 3.

80听St. Catherine鈥檚, supra聽note 7 at 55.

81 See Sir. W. Blackstone,聽Commentaries on the Laws of England,聽vol. III (Oxford: Clarendon Press, 1765-69) at 43. A.V. Dicey, 鈥淭he Paradox of the Land Law鈥� (1905) 21 L.Q. Rev. 221 at 222. A.W.B. Simpson,聽A History of the Land Law, 2nd ed. (Oxford: Oxford University Press, 1986) at 1.

82听Delgamuukw, supra聽note 1 at para. 113 (per Lamer C.J.C.)

83听Ibid.聽at para. 189 (per LaForest J), relying on聽Guerin聽惫.听The Queen,聽[1984] 2 S.C.R. 335, at 382 and聽Canadian Pacific Ltd.聽惫.听Paul,聽[1988] 2 S.C.R. 654 at 677.

84 [1990] 2 S.C.R. 85 [1990] 3 C.N.L.R. 46 at 82. J.Y. Henderson, 鈥淚nterpreting Sui Generis Treaties鈥� (1997) 36(1) Alberta L. Rev. 46.

85听R.聽惫.听Simon, supra聽note 60听reversing R.聽惫.听Syliboy,聽[1929] 1 D.L.R. 307 and the Nova Scotia Court of Appeals on treaties in聽Isaac聽惫.听The Queen infra聽note 119;聽R.聽惫.听Cope聽49 N.S.R. 555 at 564 (N.S.S.C.A.D.);聽R.聽惫.听Simon聽49 N.S.R. (2d) 566, at 572-77 (N.S.S.C.A.D.)

86听R.聽惫.听Syliboy, ibid.聽at 313.

87听Simon, supra,聽note 60 at 399.

88听Ibid.聽at 59.

89听Delgamuukw, supra聽note 1 at para. 269.

90听Ibid.聽at para. 175.

91听Ibid.聽at para 176.

92 (U.K.), 20 & 21 Geo. V, c. 26.

93听Ibid.聽at Schedules R.S.C. 1970, App. No. 25 at Para. 1 of Schedules.

94听Ibid.聽at para. 181.

95听Ibid.聽at para. 173ff. Similar reasoning was advanced for Aboriginal rights relating to land. The Court asserted that the federal government had: 鈥渢he power to legislate in relation to other aboriginal rights in relation to land鈥�, which 鈥渆ncompasses within it the exclusive power to extinguish Aboriginal rights, including Aboriginal title鈥�.

96听Ibid.聽at para. 179.

97听Ibid.聽at para. 180.

98听滨产颈诲.听at para. 181. See generally, or intergovernmental or interjurisdictional immunity, J. Vaissi-Nagy, 鈥淚ntergovernmental Immunity in Canada鈥� in P. Lordon,聽Crown Law聽(Toronto & Vancouver: Butterworths, 1991) at ch. 5 at 129-169.

99听Ibid.聽at para. 179. Under the doctrine of paramountcy, where the federal government has a constitutional interest in property, provincial legislation over such interest, even if it normally falls with its jurisdiction, is not binding, and federal legislation may override it and render it inoperative,聽A.G. B.C.聽惫.听A.G. Canada (Johnny Walker case),聽[1924] A.C. 222, at 236-261听Reference Re Waters and Water Powers, [1929] S.C.R. 200 at 212-13, 223-26; Alberta Government Telephones v. I.B.E.W., [1989] 2 S.C.R. 3181聽R聽惫.听Red Line Ltd.聽(1930), 54 C.C.C. 271 (Ont. CA);聽Re Young,聽[1955] 5 D.L.R. 225 (Ont. CA);聽R.聽惫.听Glibbery聽(1963) 36 D.L.R. (2d) 548 (Ont. CA); C.H.H. Mc Nairn, 鈥淐rown Immunity from Statute 鈥� Provincial governments and Federal Legislation: (1978), 56 Can. Bar. Rev. 145-150; K. Swinton, 鈥淔ederalism and Provincial Government Immunity鈥� (1979) 29 U.T.L.J. 1-50.

100听Ibid.聽at 1091-93. The Court refused to equate 鈥渆xisting鈥� with the concept of being actual or exercisable. See聽R.聽惫.听Eninew聽(1984), 10 D.L.R. (4th) 137, 32 Sask. R. 237 (C.A.) [hereinafter聽Eninew聽cited to D.L.R.] This approach answers the problem of how law can persist as order in a world of pervasive change and progression.

101 See generally Canada and the provinces position on Aboriginal land claims in the Atlantic Canada, J.Y. Henderson and A. Tanner, 鈥淎boriginal Land Rights in the Atlantic Provinces鈥� in K. Coates, ed.聽Aboriginal land claims in Canada: a regional perspective聽(Toronto: Copp Clark Pitman, 1992) at 131-167.

102听R.聽惫.听Sparrow,聽[1990] 1 S.C.R. 1075 at 1105-06.

103听Ibid.聽at 1091 and 1109.

104听Ibid.聽at 1095-1101, 1111-1119. In聽Denny聽惫.听The Queen聽[1990] 2 C.N.L.R. 115 at 263 (.N.S.C.A.), the court affirmed the Aboriginal right to fish for food strictly on a constitutional interpretation of the聽Constitution Act, 1982, supra聽note 2 s.35(1) and independent of the force and effect of the terms of the Mi鈥檏maq treaties; court stated: 鈥渂ased upon the decision in聽Isaac, infra聽note 119 this [aboriginal] right has not been extinguished through treaty, other agreements or competent legislation. Given the conclusion that the appellants possess an aboriginal right to fish for food in the relevant waters, it is not necessary to determine whether the apellants have a right to fish protected by treaty鈥�.

105听Ibid.聽at 1098-99;聽R.聽惫.听Alphonse,聽[1993] 5 W.W. R. 401, 4 C.N.L.R. 19 (B.C.C.A.).

106听Ibid.聽at 1110.

107听Ibid.聽at 1115, 1110;聽R.聽惫.听Howard,聽[1994] 2 S.C.R. 299, 3 C.N.L.R. 146 (S.C.C.), Gonthier J.

108听Calder, supra聽note 7 at 414.

109听Delgamuukw, supra聽note 1 at paras. 179-81, 183.

110听Delgamuukw,聽(1993) 104 D.L.R. (4th) 470., at 490 (B.C.C.A.) Hutcheon J.A. for the minority opinion in the Court of the Appeal agreed that there had not been blanket extinguishment of Aboriginal tenure,聽ibid聽at 764.

111听Ibid.

112听Ibid.聽at paras. 173-183.

113听Ibid.聽at paras. 114, 126.

114听Ibid.聽at para. 172.

115听Van der Peet, supra聽note 7 at para. 28. Justice Heureux-Dub茅 agreed with the dissenting opinion in聽R.聽惫.听Horseman,聽[1990] 3 C.N.L.R. 95 at 117, 1 S.C.R. 901. In聽搁辞产别谤迟蝉听惫.听Canada聽[1989] 1 S.C.R. 322, Justice Wilson stated there is a law of Aboriginal title in the federal common law, at 340.

116听Delgamuukw, supra聽note 1 at para. 133-34.

117听Bisallon聽惫.听Keable聽[1983] 2 S.C.R. 60 at 108.

118 See, Mi鈥檏maw Tenure in Atlantic Canada,聽supra聽note 9 at 259-267.

119听Isaac聽惫.听The Queen聽(1975) 13 N.S.R., (2d) 460 (N.S.C.A.D.) at 478-79, 483, 485. Chief Justice MacKeigan concluded that 鈥淭he history of the next eighty-seven years discloses little concern for the Indians. The incoming settlers pushed them back to poorer land in the interior of the province. The government gradually herded them into reserves and made sporadic and unsuccessful attempts to convert them into agricultural people鈥� (483-84). Before the Supreme Court of Canada in聽Simon, supra聽note 60 the Province of Nova Scotia argued that the Treaty of 1752 was not a valid treaty because it did not cede land to the Crown or delineate boundaries, and that occupancy by the white man under the Crown grant lease had extinguished the treaty reservation and gave absolute title in the land covered by the 1752 Treaty to the Crown (part VIII, 408-10). The Court found it unnecessary to come to a final decision on extinguishemnt by occupation of Crown grant or lease (at 405-406).

120听R.聽惫.听Sioui,聽[1990] 1 S.C.R. 1025 at 1055.

121听Delgamuukw, supra聽note 1 at para. 160. See K. Mac Neil, 鈥淎boriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction鈥� 1998 61(2) Sask. L.Rev. 431; and聽Defining Aboriginal Title in the 90鈥檚. Has the Supreme Court finally got it Right?聽(Toronto: Robarts Centre for Canadian Studies, 1998).

122听Ibid.聽at para. 169; also see聽Sparrow, supra聽note 102 at 1115, 110.

123听Delgamuukw, supra聽note 1 at para. 145.

124听Ibid.聽B.C.C.A. at 537. The minority would have remitted the issues of damages to the trial judge.

125听Ibid.聽at para. 203.

126听St. Catherine鈥檚, supra聽note 7 at 46.

127 Selection 109 provides: All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Provinces in the same.聽constitution Act, 1867, supra聽note 79.

128听Ibid.聽at 58.

129听Oyekan聽惫.听Adele聽[1957] 2 A11 E.R. 785 at 788 (P.C.)

130听Delgamuukw, supra聽note 1 at paras. 172-183.

131听See also, Ref. Re Manitoba Language Rights聽[1985] 1 S.C.R. 721, 744-45 (discussing section 52(1) of聽Constitution Act, 1982聽relationship to section 2 of the聽Colonial Law Validity Act)

132听Manitoba (A.G.)聽惫.听Metro Stores (MTS) Ltd.,聽[1987] 1 S.C.R. 110.132;聽P.A.T.A.聽惫.听A.G. Canada [1931] A.C. 310, 313.