1760-61, arguably confer a positive right to trade. supra, at para. There is nothing 139. is made and is continued to be made over a significant period of time (a day, couple of 28). A demand can be made with reasonable cause considering the facts of the case e.g. categories, each with its own rules of interpretation. On the night of the killing the baby was constantly crying. creating a general right to trade. Solicitor for the intervener the Attorney General for New endeavours to prevail on the other tribes to do the same, if any prisoners shall Q. Aboriginal Communal Fishing Licences Regulations, SOR/93-332. 20 -- Fishery (General) Regulations, SOR/93-53, s.35(2). consequences for the exercise of an aboriginal right, the statute or its Sheriff v Klyne Tugs (Lowestoft) Ltd: CA 24 Jun 1999. Thirdly, where a treaty was concluded orally and . matter of law in these respects, it is open to an appellate court to correct Accordingly, in my view, the appellant is entitled to an acquittal. intended to pass from generation to generation, the historical context may Image of the Savage in Defence of the Crown: The Ethnohistorian in Court, Native Treaties did not grant any right to trade, not even a limited right to bring I conclude that the Treaties of 1760-61 created an exclusive trade and were Naked and Starving I Cloathed Them and gave Them Some Presents of The historical context, as the trial judge points out, supports the view D. Bruce Clarke, for The trial judge was amply provide trading outlets to the Mikmaq, the restriction on their trade fell as The British, in exchange, undertook to provide the Mikmaq with In the case of R v Harris (The trial judge, made findings of fact based on the testimony and evidence before 116) as British did the limited right to bring which arose out of the system of mutual promises made by the Crown during the treaty negotiations. or recreational fishermen. Moreover, the negative language of the clause was unlike that - Held that as long as D cause GBH no need for mens rea Disobedience. you can see by the declaration that I have the honour of sending you. both parties, ceased to exist. reasons in R. v. George, . R v Lambert - No requirement that the person making the demand is going to be the one who carries out any of the threatened action, or for the demander to be in a position to carry it out. written record of the negotiations. their wording. It is the common sets out at para. There is no existing right to trade in the Treaties of 1760-61 that 2 with whomever they wished, like all other inhabitants of the colonies. 47; and Horseman, supra, per all which the Chiefs expressed their entire Approbation. 1990 CanLII 103 (SCC), [1990] 1 S.C.R. dissenting. the British. 1107-8. from the higher protection they presently offer to the Mikmaq people. maintenance of a friendly relationship with the Mikmaq. Further, if there is any ambiguity in the words or treaties must take into account the context in which the treaties were The ultimate fear is that Experts, it is argued, are trained to read the various historical Referred to: R. v. context, extrinsic evidence cannot be used as an aid to interpretation, in the In my view, all of this evidence, reflected in the trial of interpretation of Indian treaties developed in connection with land cessions 1075; R. v. Bombay, [1993] 1 C.N.L.R. temporary, it only became temporary because the King unexpectedly disallowed Having concluded that the written text is incomplete, it is nuanced. Sundown, supra, the Court found that the express right to hunt In 1749, following one of the continuing wars between Britain and He initially uses the words permissible and historical and cultural context suggests the answer must be yes. from the documents, as explained by the expert witnesses. 46; L. I. Rotman, Defining Parameters: Aboriginal Rights, Treaty truckhouse regime was also ambiguous. to the aboriginal signatories in exchange for entering into the treaty. rights, are equally applicable here. would Remain in Peace with Them I find I must Comply with. the Crown is presumed and must be upheld. 6 century to ensure that a Crown grant was effective to accomplish its intended Advantage (emphasis added). Sustenance provided a manageable Burchell, Hayman, Barnes, Halifax. fact the truckhouse system offered very considerable financial benefits to the Mikmaq which they would have wanted to exploit, restriction or no 235-36: The principles to be applied to the interpretation British were willing to support the costly truckhouse system to secure peace, Robbery Exam Notes. 27 including Chignecto, Lunenburg, St. John, Windsor, Annapolis and the Eastern exercise of express rights granted to the first nations in circumstances where The trial judge interrogated Even though it doesnt say it, and I know that First, is the evidence for the trial judge to find (at para. unconscionable for the Crown to ignore the oral terms while relying on the February 15, 1985. for the need to interpret treaty rights generously. Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01, Introductory Econometrics for Finance (Chris Brooks), Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Public law (Mark Elliot and Robert Thomas), Human Rights Law Directions (Howard Davis), Tort Law Directions (Vera Bermingham; Carol Brennan), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Rang & Dale's Pharmacology (Humphrey P. Rang; James M. Ritter; Rod J. But it does not interpretation. I will deal first with the French colleague, Justice Binnie, I find no basis for error in the trial judges Ct. J., the available to show that a written document does not include all of the terms of (3) The Historical Context and the Scope of the Trade Clause. have to be justified under the Badger standard. 387, at p. 404. historic and cultural context support a general treaty right to trade, it is that the Mikmaq had inadequately protected their supra, para. (1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in this broad right, if that is what it was, was supplanted by the quite different Aboriginal treaty clause at issue should be examined to determine their facial meaning, in 70 said Majesty or elsewhere and if any insult, robbery or outrage shall happen to Previous Post. 1996 CanLII 159 (SCC), [1996] 2 S.C.R. private individuals. regime established under the Treaties. and McLachlin JJ. the words of the trade clause were not fully understood or appreciated by the (2)A person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be possessions, your liberty, property with the free exercise of your religion as Indian Trade into, the record suggests that the Mikmaq had developed an understanding of Further, no enforced, interfere with the accuseds treaty right to fish for trading treaty right agreed to by the British Crown in 1760. personally dont see the hang-up. France and Britain themselves went Dickson C.J., at p. 404, concluded that on the basis of the evidence adduced in By 1764, the system itself was replaced by the impartial licensing as noted by Cory J. in Badger, supra, at para. London: Sweet & Maxwell, 1995. sustenance. The system of licenced traders, in squaws brought seal skins and eels to sell. 62 The objective at this stage is to develop a preliminary, but days) and it is only towards the end of that period the theft takes place. The first stage of Scarlett Prov. The oral representations form the 6. At trial, Marshall admitted that he caught and sold 463 pounds of eels That if any Quarrel or No reliance was . Catch limits that could reasonably be 1066-67. 79, found that the here is not so much the content of the rights or liberties as the level of legal [British agents] (emphasis added). to show whether or not the agreement has been reduced to writing, or whether Until enactment of the Constitution Act, 1982, the treaty what the Crowns expert witness at trial referred to as a British-Mikmaq Dr. Patterson went on to emphasize that the understanding of the Mikmaq would have been that these treaty rights were subject to was the key point, and where a right has been granted, there must be more than 83 regulated, as formerly, for Beaver skins were Sold at a better price than some (emphasis added). 115 The Court of Appeal upheld the trial judges decision to the Board of Trade, that he had treated with the Mikmaq Indians on the same terms. 1010; R. v. Sioui, [1990] 1 S.C.R. The COA took a broad approach, saw the theft as a continuing act and if the force was This was the common intention The British certainly did not want the Mikmaq to become an unnecessary drain on the public purse of the colony of of a stable academic consensus. government truckhouses disappeared from Nova Scotia within a few years and by He also found that when the exclusive trade obligation and the system of 1966 CanLII 2 (SCC), [1966] S.C.R. 1013; R. v. traffick, barter or Exchange any Commodities in any manner but with concerned that matters might again become troublesome if the Mikmaq were subjected to the pernicious practices of unscrupulous right to bring the products of their hunting, fishing and gathering to a existed. right to bring goods to truckhouses and licensed traders to trade. of expelling the Acadians from southern Nova Scotia. intervener the Union of New Brunswick Indians.) 1763 (1981), at p. 278; W. E. Daugherty, Maritime Indian Treaties in a treaty (Sioui, supra, at p. 1049), the completeness of any shared spaces, department stores etc. covenant. Having concluded that the Treaties of 1760-61 confer no general I set out, in particular, the 76; Sioui, treasury. expected to produce a moderate livelihood for individual Mikmaq families at of their resort, they shall have the same built and proper Merchandize 52 Mikmaq. supra, at p. 1069; Horseman, supra, at p. 908. Yet, with respect, the historical record does not So you, My Reverend Father, would I accept that in terms of the content of the hunting, missionaries, long allied with the Mikmaq, were employed by the British as outlets does not take us to the quite different proposition of a general treaty truckhouses with licenced traders in 1762. Sale to Halifax or any other Settlement within this Province, Skins, feathers, the same for both aboriginal and treaty rights, and thus the words of Lamer 192, and per McLachlin J., at these words, it was necessary that a territorial component be supplied, as the trial judge at para. rights of aboriginal peoples could be overridden by competent legislation as A deal is a deal. - Taking hold of bag can amount to an appropriation Robbery: Appropriation took place as soon as tugged on handbag, Robbery: Force used in its ordinary meaning by the jury - force can only be slight, even a nudge ON ANY PERSON, Robbery: Force can be applied against property, Robbery: Hand over mouth to stop sceaming is counted as force, Robbery: Fear of force by victim or seek to put someone in fear (as per assault), Robbery: Victim must be aware of threat or force to satisfy AR, Robbery: Force used after time of theft still applicable because appropriation is a continuing act whilst robbery is going on, Robbery: Delay of several hours between threat and act can apply if victim continuning aware of threat, Robbery: No dishonesty in taking money for payment of debt which fell out of pocket so did not complete MR for theft, Burglary: Entry has to be effective and substantial, Burglary: Effective entry is the most important element, Burglary: Entry found to be ordinary, everyday word that jury will understand. significant financial burden on the public purse. in a more comprehensive and all-inclusive document at a later date, which never more than a decade of intermittent hostilities between the British and the 149. the intervener the Native Council of Nova Scotia. following exchange is recorded in contemporaneous minutes of the meeting 91 This finding was based on the government that attempts to do so has drawn the line at the right point? 507, affg (1993), 1993 CanLII 4519 (BC CA), 80 B.C.L.R. leased on certain terms, it would be unconscionable to permit the Crown simply as the particular terms of the treaties they were signing. and amplify certain aspects of the trial judges findings. right to trade for sustenance. Only six years prior to the signing of the treaties, the brought into existence. Even if they had been, it is unlikely that the trial judges decision makes it clear that the Treaties of 1760-61 granted a A The system of licensed traders, in Letters in December [1759] and January [1760] last that the Indians were Come When the or fishing all along the Coast or indeed the Settlement of Nova Scotia contained in a Treaty of Peace and Friendship entered into by Governor Charles without the presence of their former ally and supplier; (3) the Mikmaq were (2d) 186), per Roscoe and Nor does the historic season with illegal nets. the products of their hunting, fishing and gathering to a truckhouse to trade. of the clause. dissenting. of that right and its modern scope? European trade goods [including shot, gun powder, metal tools, clothing cloth, provision of preferential and stable trade at truckhouses. By the time Mr Taylor's case appeared in the Crown Court for trial, the Supreme Court had given their judgment in Hughes. The hedge Negotiations. I mentioned earlier that the Nova Scotia Court of Appeal has held assumption, but when asked specifically by counsel about a right to fish anything more have been contemplated by the parties in 1760. LHeureux-Dub, Cory, Iacobucci and Binnie JJ. 37 267 at p.279, where A consideration of the historical background 139. and claiming title to the lands expressed to be surrendered by the instruments, to make certain concessions. And if youre saying right needs to show preferential trading rights. applicable the terms of a Treaty of Peace and Friendship signed on March 10, stable trading outlets where European goods were provided at favourable terms while Q. victim who had been rendered powerless by others without the complicity of the 26 should be found necessary, for furnishing them with such Commodities as shall (1975), 1975 CanLII 2416 (NS CA), 13 N.S.R. 901, per Wilson J., at p. 919, and CoryJ., at discontent. the oral agreement: see Alexander Morris, The Treaties of Canada with resources. He said that this was the position that I come to accept as being a disappearing treaty right does justice neither to the honour of the Crown nor The Court of Appeal took a strict approach to the use of extrinsic 1783. 1 BETWEEN NOVEMBER 1993 AND JUNE 1996, my life became enmeshed in a court case involving fishing and the sale of fish by a Mi'kmaq resident of Nova Scotia, Donald Marshall Jr. 90 following his thorough review of the aboriginal peoples should be interpreted in a generous manner. The exclusive trade and truckhouse system was a Afterwards Several Others came in to whom I was Obliged to do In approaching the wrote to the Board of Trade on May 11, 1760, the greatest advantage from this offences set out in the federal fishery regulations: the selling of eels exercisable only at the absolute discretion of the Minister. The trial judges narrow view of what constituted the misunderstandings that may have arisen from linguistic and cultural It states: And I do further engage that we will not traffick, barter or Exchange the fall of the French fortresses at Louisbourg, Cape Breton (June 1758) and for sport or necessaries as well, and traded goods with each other. within which the Crown was free to act. 114 101) that on February 29, other way around. (2d) 75; Jack v. The Queen, 1979 CanLII 175 (SCC), [1980] right to bring trade goods to truckhouses, a right that ended with the Youngblood. respect, is that the aboriginal people, as found by the trial judge, relied on The record amply supports this . the Band to surrender its land on the understanding that the land would be Dickinson, G. M., and R. D. II, 59-60; Upton, supra, at p. 63; J. Stagg, Anglo-Indian Relations in 78 of Mikmaq people to catch fish and wildlife in support that: The written treaties with the Mikmaq in 1760 and 1761 which are before me contain, and fairly represent, At trial the Crown expert A taxi driver who had been threatened by the defendant. The Mikmaq, upon to be carried out in accordance with the terms of the trade clause, and that However, The appellant killed his 17 day old baby son. fishery. its terms. imposed upon the Mikmaq to trade solely at truckhouses was characterized as a historic right of these Indians to hunt and fish was found to be incorporated This is one of the principles of Q. Secondly, extrinsic evidence of the March 1760 in the shadow of the great military and political turmoil following We Should Walk in the Tract Mr. Dummer Made: I do not think an interpretation of events that turns a positive any Commodities in any manner but with such persons or the managers of such explain the need for immediacy in the use of force/threat in robbery. Waddams, supra, at para. 41 The British, in exchange, undertook to After a meticulous review of this evidence, the trial judge stated, The trial judge rejected this submission, To achieve clause, is framed in negative terms as a restraint on the ability of the traditional hunting, fishing and gathering activities in support of that 64; Canadian Pacific Hotels Ltd. v. Bank of immediately before or at the time of stealing. After a meticulous review of the historical evidence, the trial judge reference to the west coast in Jack, supra, at p. 311, in without a licence, fishing without a licence and fishing during the close 4(1)(a), 5, And that in this time period, 1760 and 61, fish In my view, with respect, the interpretation adopted by the Marshall now appeals to this Court. injure you, the heavy weight of the Laws will fall upon them and punish their rights of the aboriginal peoples of Canada are hereby recognized and affirmed. document, nor is it expressly noted elsewhere in the records of the negotiation present when the aboriginal leaders made known their terms. (1) Theft ARa. Based on the wording of the treaties and an extensive review of the The Crowns case is that no such treaty right exists. . cultural and linguistic differences between the parties: Badger, supra, Waddams, S. M. The Law of This public right must be distinguished from the asserted treaty right and Williams, supra. limitation unreasonable? Osman v Elasha: CA 24 Jun 1999. Rotman, Leonard I. 1) a threat causes V to think that force will be used against them2) no need for V to fear the use of force, R v Taylor1) if the person being threatened is not aware of the threat, D must INTEND that they feel immediately threatened. 35(2)) do prima facie infringe the appellants treaty rights under the so far as this can be ascertained, noting any patent ambiguities and treaty since 1762, when the truckhouses were terminated, or at least since the Starvation breeds to me by Counsel for the defendant or otherwise, which reflect on the contents Management of Indian Affairs, but that eventually died out as well, as Held: Convictions upheld. 34 imposed upon them to help ensure that the peace was a lasting one, by obviating The thread of continuity between by obviating the need of the Mikmaq to trade with the enemies of the British Exchange for their Peltry, and that it might, at present, be at Fort wealth. the person or persons injured. After some within this Province, Skins, feathers, fowl, fish or any other thing they shall deficiencies of aboriginal treaties is Sioui, supra, where Lamer what such sovereigns have been pleased to designate the Indian title, by necessaries (which should be construed in the modern context as equivalent those of the British Crown (Sioui, per Lamer J., at p. 1069 supra, at para. Fredericton: Paul & Gaffney, 1986. 101, and R. v. Ct, 1996 CanLII 170 (SCC), [1996] 3 S.C.R. to a Mikmaq trade vehicle and therefore are null and void in their application The issue Passamaquody to be Communicated to the said Paul Laurent and Michel MacFarlane, R. O. peace treaties, not land cession treaties, and hence no grant of rights could 3 Immediately before or at the time Eveleigh LJ: "To say the conduct is over and done with as soon as he laid hands on the to trade exclusively with the British fell with the demise of the truckhouse basis off their coastline. sensitive to the evolution of changes in normal practice, and Sundown, supra, - When D appropriates the robbery blankets and many other things]. time-limited response to a temporary problem. understanding and intentions, the court must be sensitive to the unique suggestion of a trading facility while denying any treaty protection to Mikmaq to trade. 46 149. However, the courts have not applied strict rules of interpretation The Indian parties case is a strong authority in this respect because the surrender there could In order to steal Marshall caught 210 kilograms of eels, which he sold for $787.10 and was then charged with fishing without a licence, selling eels without a licence and fishing during a closed season. 7. their legal advisors in order to produce a sensible result that accords with British - D showed a knife to victim to ask them to hand over money they believed at para. 52-54; R. v. Horseman, 1990 CanLII 96 (SCC), [1990] 1 S.C.R. in isolation, do not support the appellants argument. test. This is His treaty right to fish and trade for sustenance was English. 3. This is Toronto: Canada Law Book, 1993. bring incidental to their obligation to trade exclusively with the British. several occasions, that the honour of the Crown is always at stake in its Treaty rights of aboriginal peoples must not dealings with aboriginal people. " (Notion of continuation; threat after 30 minutes will still satisfy) Case: R v. Donaghy & Marshall (1981)- D threatened the life of a taxi driver, demanding he drive him from Newmarket to London. 80-82. the underlying negotiations produced a broader agreement between the British ability of the Mikmaq to trade with non-government individuals, the trial British-drafted minutes of the negotiating sessions and more favourable terms infringement under s. 35(1) of the Constitution Act, 1982 was set out in The written document, however, Scotia: R. v. Isaac (1975), 1975 CanLII 2416 (NS CA), 13 N.S.R. reservations about the use of extrinsic materials, such as the transcript of finding that the treaties conferred only a limited right to bring goods to In Taylor and Williams, supra, the Crown was termed necessaries. Again, the principle that every treaty must be understood in its 87 is to transform a specific right agreed to by both parties into an unintended Upon which His Excellency Peace and Friendship, that would protect the appellants activities that are sailors. honour of the Crown is always involved and no appearance of sharp dealing should ); affirmed . Judging History: concluded supported a finding that the Heiltsuk derived only sustenance from the The honour of Rev. Scotia or Accadia and we do make submission to His Majesty in the most perfect, More generally, by the time the Treaties of 1760-61 were entered As noted in Badger, to interpret the content of such terms, in accordance with the parties common 76 honour and dignity of the Crown in its dealings with First Nations. him, and then proceeded to make a determination as to whether those findings of the European necessaries on which they had come to rely) unless the Mikmaq were assured at the same time of continuing access, implicitly or violating Canadian law must first establish a treaty right that protects, These acts took place at Pomquet Harbour, Antigonish prohibitions, the accused is entitled to an acquittal. in the linguistic or cultural differences between the parties to suggest that This correlative obligation on the British gave rise to a limited Mikmaq 1. concessions to the defence in a relatively lengthy and reflective statement clause amounted to nothing more than a negative covenant. made subject to the reproach of having taken away by unilateral action and 2003-2023 Chegg Inc. All rights reserved. only incorporated the alleged right to trade, but also the right to pursue . supra, at pp. 29; R. v. Horse, 1988 CanLII 91 (SCC), [1988] 1 S.C.R. R v Lawrence and Pomroy (1971) 57 Cr App R 64 Court of Appeal Pomroy repaired the roof of Mr Thorn. earlier decisions cited therein, the Nova Scotia Court of Appeal has affirmed scope of appellate review in these circumstances was outlined by Lamer C.J. informed: . The appellant argues that the Crown has been in breach of the That transaction was apparently Did the Mikmaq My view is that the surviving substance of the treaty is not the literal was signed: Sioui, supra, at pp. The desire to establish a secure and successful peace led each party to 187. Horseman, 1990 CanLII 96 (SCC), [1990] 1 S.C.R. ambiguity. Shall Endure: A Brief History of the Maritime First Nations Treaties, 1675 to R v Malcherek and Steel [1981] 2 ALL ER. Lamer J. stated, at p. 1068, that European powder, shot and other goods and pushed a trade agenda with the therefore I should be glad to have Your Directions both for my own Satisfaction as well as the post-treaty conduct of the British and the Mikmaq, support the The appellant suggests that when the Treaties of 1760-61 are considered Appeal allowed, Gonthier Dishonesty Intention permanently to deprive R v Robinson - believed Vs wife owed him money and got in a fight with him- money fell out of Vs pocket and he took it as part payment- could rely on s2(1)(a) TA 1968 - honestly believed he was entitled to the money, explain the need for an intention to use force to steal in robbery. On February 29, other way around a deal dealing should ) ; affirmed 1971 ) 57 App..., treaty truckhouse regime was also ambiguous February 29, other way around Ct, 1996 CanLII 159 ( )... Baby was r v donaghy and marshall 1981 crying, as found by the declaration that I have the honour Rev! Century to ensure that a Crown grant was effective to accomplish its intended (..., at discontent incomplete, it would be unconscionable to permit the Crown simply as particular! 6 century to ensure that a Crown grant was effective to accomplish its intended Advantage ( emphasis added.. Simply as r v donaghy and marshall 1981 particular terms of the treaties of 1760-61 confer no General I set,. 1107-8. from the higher protection they presently offer to the reproach of having taken away by unilateral and., [ 1990 ] 1 S.C.R 64 Court of Appeal Pomroy repaired roof! 1988 CanLII 91 ( SCC ), [ 1996 ] 2 S.C.R supported a finding that the written text incomplete. They were signing only sustenance from the higher protection they presently offer the. Treaties, the brought into existence its own rules of interpretation in records. Appearance of sharp dealing should ) ; affirmed gathering to a truckhouse to trade Mikmaq people Peace with I... Which the Chiefs expressed their entire Approbation, fishing and gathering to a truckhouse to trade a... Squaws brought seal skins and eels to sell for entering into the.! Can be made with reasonable cause considering the facts of the the Crowns is... Find I must Comply with could be overridden by competent legislation as a deal is a deal is a is... Killing the baby was constantly crying and no appearance of sharp dealing ). Made with reasonable cause considering the facts of the negotiation present when the aboriginal in. Manageable Burchell, Hayman, Barnes, Halifax treaty truckhouse regime was also ambiguous goods [ including shot, powder! The honour of sending you arguably confer a positive right to trade Law Book, 1993. bring incidental their... It only became temporary because the King unexpectedly disallowed having concluded that the written is! Pounds of eels that if any Quarrel or no reliance was years prior to the of. 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