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Customary Law, the Crown and the Common Law: Ancient Legal Islands in the Post-Colontal Stream

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Customary Law, the Crown and the Common Law: Ancient Legal Islands in the Post-Colontal Stream CUSTOMARY LAW, THE CROWN AND THE COMMON LAW: ANCIENT LEGAL ISLANDS IN THE POST-COLONTAL STREAM by RICHARD DALE PESKLEVITS B.A., Simon Fraser University, 1994 LL.B., Queen's University, Kingston, 1997 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required (staindard THE UNIVERSITY OF BRITISH COLUMBIA March 2002 © Richard Dale Pesklevits 2002 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. la. The University of British Columbia Vancouver, Canada DE-6 (2/88) Abstract This thesis is a cross-disciplinary study of legal history and customary law. Respect for, and accommodation of local customary law has been a constant and integral feature of law in Britain since Anglo-Saxon times. It guided the emergence of the common law, and continues as a rule of law to the present day. Such respect and accommodation was an essential principle that permitted the peaceful consolidation of the British realms from its constituent parts. Continuity of law is a legal presumption whether territories have been added by conquest, cession or annexation. The principle respect for local legal custom was one of two schools of thought carried to Britain's overseas colonies; the other was a theory that local customary law could be extinguished by non-recognition on the part of the British sovereign or his/her delegates. Nevertheless, customary laws and institutions were explicitly and implicitly recognized in the colonial period. The doctrine has modern application with respect to the customary law ways of indigenous peoples wherever the common law has been extended overseas. Rights under customary law are distinguished from Aboriginal rights, though there is some overlap between the two. Customary law can only be extinguished by an express statute, or by clearly unavoidable implication. Legal customs are not invalid merely for being contrary to the common law. Common law defers to valid customary law as a matter of constitutional common law. But the common law provides tests by which courts can identify valid legal custom. Where a valid, unextinguished legal custom is found, courts are bound by the common law to apply it. Where customary law can be identified, it binds the servants and agents of the Crown, except when it is inconsistent with Crown sovereignty itself. n Table of Contents Abstract ii List of Figures vi Acknowledgements vii Chapter 1 - Introduction to the topic 1 Some objections to differential treatment of Aboriginals in law . 3 Recognizing a right does not create a new one 4 The Crown and colonization 5 Crown sovereignty and extinguishment of customary law 6 Why look to the past to ascertain current legal rights? 7 Mere passage of time does not extinguish law 8 Jura regia - rights, privileges and prerogatives of the Crown 11 What is law? 12 What is custom, for present purposes? 16 Custom - the common law doctrine . 18 Chapter 2 - Customary law and the emergence of the common law 22 A Legal Anthropologist Goes to London: Early this Millennium, Isn't He? 23 Foreign employment 24 Germanic and Anglo-Saxon government 27 What is so special about the Queen's hat? - The Anglo-Saxon world view underlying the legal institution of the Crown 29 The monarch is under, not above the law 30 Royal duty to govern according to law 31 The monarch as font of justice 32 Law and the royal prerogative 33 The king can do no wrong 35 Sovereignty and subjection entail duties on both the monarch and the subject. .. 36 Origins of "common law" 38 Early codifications of law 38 Legal pluralism: one realm, three different legal systems 40 Why the sudden emergence of the common law in the 12th century? 42 Two decades of anarchy and destruction 43 Henry II comes to the throne 45 Drawing new order from anarchy and lost laws 46 Chapter summary 49 iii Chapter 3 - Local legal custom and the colonization of the British Isles 51 The colonization and annexation of wales 53 Magna Carta guarantees that local customary law will continue 53 Customary law and the evolution of the mechanism of statutes 55 Early statutes respecting Welsh custom 57 Were local legal customs in Wales extinguished by the general statutes of Henry vm? 59 Did the putative discretionary authority to extinguish local custom by order in council survive in Henry's successors? 60 The union of Scotland and England 62 When one king gains a second kingdom by lawful succession, who is subject to whom? 63 Crown and country - difference? 63 Continuity of local law is a maxim of constitutional law 64 Minor" royal prerogatives are subject to local customary law 65 Union of Scotland and England by statute 68 Ireland - local custom is not extinguished merely by either the fiction or the fact of conquest 69 Vested rights survive the extinguishment of legal custom 72 The curious notion of the divine right of kings 73 King James was no more above the law than any British monarch before him, or since 74 James' royal courts affirm that the Crown has no prerogative to make, break, alter or extinguish any law : 75 Chapter summary 76 Chapter 4 - Local customary law in the overseas colonial experience 78 Why didn't the doctrine of legal custom enter colonial law - or did it? A myth finds favour overseas 78 Treaty making and legal custom - common law fundamentals 80 Early treaties and relations with indigenous colonial peoples 82 Relations deteriorate 86 Religious tolerance and legal incapacity 88 Systemic discrimination hides legal doctrine, but does not extinguish it 89 Customary dispute resolution mechanisms 91 Local custom and land tenure 94 The Royal Proclamation of October 7, 1763 and legal continuity 99 Self-definition of membership recognized in legislation - band membership .. 102 Chapter summary 105 iv Chapter 5 - The Modern Common Law Doctrine of local legal custom 106 Chapter overview 106 What is "custom" in the common law 107 , Proving custom - onus 108 The common law requires that legal custom must have four essential attributes: immemorial existence, reasonableness, certainty, and continuity 110 a) Immemorial existence 110 b) certainty 116 c) reasonableness 117 Grounds for holding a custom unreasonable 118 d) continuity 120 Aboriginal Rights and the Constitution 125 Extinguishment 126 Proving custom - Evidence 127 How do the various forms of law fit together? 129 Custom's legal toolbox in the 21st century 130 Chapter 6 - Modern Application: Decolonializing the Common Law 131 Custom distinguished from Aboriginal rights 132 Customary law and the Charter 135 Customary family law in modern application 137 Canadian case law on marriage customs 138 Conflation of legal custom with other legal concepts 141 Aboriginal rights and legal customs of the Blood people 143 Disposition of marital property upon divorce, etc 145 Adoption 147 Legal custom as defence in criminal matters 152 Legal custom as justification for trespass 153 Fee simple is subject to prior vested customary rights 154 Self Governance and inter-governmental relations 155 Custom as legal authority to govern 156 Summary 158 Index I - Cases cited 160 Index II - Statutes cited 168 Index HI - Secondary sources cited 171 v List of Figures Figure 1 - Original homelands 22 Figure 2 - - A.D. 550 Ethnic distribution of peoples in Britain 26 Figure 3 - A.D. 626 Ethnic distribution 26 Figure 5 - Ethnic distribution in the late 9th century 41 Figure 4 - Three provincial legal systems in the single realm of England in the 10th"-12th centuries 41 Figure 6 - The British Royal Standard 84 Figure 7 - Precedence of laws 130 vi Acknowledgements I am very grateful for the assistance and warm support of my supervisors, Professors W. Wesley Pue and Michael Jackson at the University of British Columbia. Their patience allowed me to investigate areas of legal history that others might have wrongly dismissed as unproductive. And their insightful guidance helped me maintain a scholarly focus on my project. Between conceiving the project and completing it I had help from many other sources. I would like to thank professors Phil Goldman, Allan Manson and David Stratas at Queen's University, Kingston, Ontario for encouraging me to pursue graduate studies in law. Professor Rosemary King (Queen's University) helped me to clarify my objectives before undertaking my project. Thanks are also due to professors John Borrows, Alan Hunt, June McCue, Dawn Mills and Doug Sanders at the University of British Columbia for their helpful comments on earlier versions of parts of my thesis, or for just being ready and willing to discuss aspects of the thesis. I would also like to acknowledge and thank classmates and graduate students in the faculties of Law and Anthropology at UBC for innumerable helpful comments and hours of stimulating conversation and provocative debate. This thesis project has been supported by a fellowship from the Law Foundation of British Columbia. Without their encouragement and gesture of confidence my graduate studies might never have been possible. vii Chapter 1 - Introduction to the topic Legal customs of Aboriginal peoples have been recognized as a source of applicable legal principles in Canadian courts since at least 1867,1 and in pre-Confederation Canadian statute since 1850.2 Moreover, both explicit and implicit recognition of their customary laws appears in treaties and government documents from the earliest days of the overseas colonial expansion enterprise.
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