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“They Promised to Leave Us Some of Our Land:” Aboriginal Title in Canada’S Maritime Provinces

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“They Promised to Leave Us Some of Our Land:” Aboriginal Title in Canada’S Maritime Provinces “They Promised to Leave Us Some of Our Land:” Aboriginal Title in Canada’s Maritime Provinces Robert Hamilton A Thesis Submitted to the Faculty of Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Master of Laws Graduate Program in Law York University Toronto, Ontario October, 2015 © Robert Hamilton, 2015 1 Abstract To demonstrate the existence of Aboriginal title, claimants must prove that their ancestors exclusively occupied a given tract of land at the time of the assertion of British sovereignty over that territory. The indisputable presence of Aboriginal peoples in Canada’s Maritime Provinces at the time the British acquired sovereignty in the region, coupled with scant European settlement at the time, lead to the conclusion that the Aboriginal occupation in much of the region was exclusive at the relevant dates for assessing Aboriginal title claims. In light of this, this thesis begins by arguing that Aboriginal title existed in the region at the dates of sovereignty, while stopping short of making determinations as to the precise geographical scope of title. The question that occupies the remainder of this thesis is whether Aboriginal title has been extinguished. This thesis articulates a clear framework for assessing purported incidents of legislative extinguishment of title by identifying the legal parameters governing which legislative bodies had the authority to extinguish Aboriginal title during distinct eras in Canada’s constitutional history and providing an analysis of what laws or principles bound the conduct of those legislative bodies. This thesis draws on both contemporary and historical law in providing clear guidelines governing the extinguishment of title and concludes that no evidence of extinguishment exists in the Maritime Provinces. The final issue this thesis addresses is what happened to Aboriginal lands, and how they came to be in the possession of European settlers, if Aboriginal title was not lawfully extinguished. An analysis of the relevant historical material reveals that what began as a relationship grounded in a system of inter-societal law, given expression through the treaty process, became one in which the British fully extended their own legal regime, assuming jurisdiction over Aboriginal peoples. This process allowed the British to embrace a terra nullius approach to settlement and land use, denying that the prior inhabitants ever held rights to the territory they occupied. This thesis argues that this terra nullius approach, given expression through fee simple grants of settlement and the taking up of lands as Crown lands to be licensed and sold where the Crown saw fit, could not have had the effect of legally extinguishing Aboriginal title in the region. ii Acknowledgments I would like to acknowledge and thank my supervisor, Dr. Kent McNeil, whose guidance, mentorship, accessibility, and generosity pushed me to significantly improve the quality of my work and made the completion of this project possible. The privilege of working with Professor McNeil involves not only the opportunity to draw on his encyclopedic knowledge of his field of study, but to learn from the example he sets as both an academic and as a person. I am grateful to have had the experience. I would also like to thank my secondary supervisor, Dr. Philip Girard, for giving his time to provide valuable insights and comments on multiple drafts of this thesis. Thanks is also owed to the other members of my oral defence committee, Dr. Brian Slattery of Osgoode Hall Law School at York University and Dr. Jim Phillips of the Faculty of Law at the University of Toronto, for volunteering their time. A special thanks is also owed to Dr. James Gilbert-Walsh of Saint Thomas University and Dr. Nicole O’Byrne of the Faculty of Law at the University of New Brunswick who, at various points, kept me holding the rope. Their guidance, friendship, and support, along with their open doors and open minds, encouraged me to follow the ideas that inspired me and, quite apart from academic work, each helped more than they likely know in seeing me through to the end of my undergraduate and law degrees. Thanks also goes to the friends who have stuck it out through the last decade or so, each of whom is responsible in their own way for getting me to this point. I would also like to acknowledge the financial support of the New Brunswick Law Foundation and the donors to scholarship funds at the University of New Brunswick Faculty of Law and Osgoode Hall Law School. My greatest debt of gratitude, though, is owed to my family. Quite simply, this project, nor any of the other modest successes I have had, would have been possible without their love and support. *The quote included in the title of this thesis is excerpted from a speech delivered by Chief Louis Francis Algimou (L’kimu) to the colonial assembly of Prince Edward Island in 1831 enjoining the government to give the Mi’kmaq access to some of their traditional territories. A more complete excerpt can be found in Harald E.L. Prins, The Mi’kmaq: Resistance, Accommodation, and Cultural Survival (Orlando: Harcourt Brace, 1996) at 169. iii Table of Contents ABSTRACT ................................................................................................................................................ II ACKNOWLEDGMENTS ............................................................................................................................. III TABLE OF CONTENTS ............................................................................................................................... IV INTRODUCTION ........................................................................................................................................ 1 1. PROOF OF ABORIGINAL TITLE ......................................................................................................... 6 A. PROVING TITLE ........................................................................................................................................... 6 I. Sufficiency of Occupation .................................................................................................................... 7 II. Continuity ......................................................................................................................................... 11 III. Exclusivity of Occupation ................................................................................................................ 13 B. THE MARSHALL/BERNARD DECISIONS ........................................................................................................... 16 C. HISTORICAL OCCUPATION ............................................................................................................................ 28 D. TITLE BY TREATY ........................................................................................................................................ 40 E. SUMMARY ................................................................................................................................................ 50 2. MODES OF EXTINGUISHMENT: VOLUNTARY SURRENDER AND UNILATERAL LEGISLATION ........... 51 A. VOLUNTARY SURRENDER ....................................................................................................................... 53 B. LEGISLATIVE COMPETENCE ..................................................................................................................... 55 I. Executive and Legislative Authority .................................................................................................. 57 II. The Imperial Crown, Imperial Parliament, and the Royal Prerogative ............................................. 62 III. The Colonial Executive .................................................................................................................... 80 IV. Legislative Authority in the Colonies ............................................................................................... 86 V. Post-Confederation .......................................................................................................................... 93 C. CLEAR AND PLAIN INTENT ...................................................................................................................... 96 D. SUMMARY ............................................................................................................................................... 97 3. EXTINGUISHMENT IN THE MARITIME PROVINCES ....................................................................... 100 A. VOLUNTARY SURRENDER ..................................................................................................................... 100 B. EXTINGUISHMENT BY UNILATERAL LEGISLATION ....................................................................................... 103 I. Legislative Competence .................................................................................................................. 103 II. Repugnancy.................................................................................................................................... 115 III. Clear and Plain Intent .................................................................................................................... 117 C. INSTANCES OF POSSIBLE LEGISLATIVE EXTINGUISHMENT .................................................................................. 122 I. Colonial Legislation ........................................................................................................................
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