into a series of negotiations with communities of first nations spread across r v collins Entry must be effective and substantial. This Court has set out the principles governing treaty interpretation on enforced, interfere with the accuseds treaty right to fish for trading [Emphasis added.]. . British agents at British trading outlets -- the truckhouses. Well, my understanding of this issue, Mr. it would be expected that the said Tribes should not Trafic or Barter and In R. v. Denny (1990), 1990 CanLII 2412 (NS CA), 55 C.C.C. (who had acted as counsel for the native person convicted Despite their recent provision of preferential and stable trade at truckhouses. judge found that it reflected a grant to them of the positive right to bring timing and extent of Indian hunting under a Treaty, apart, I would add, from a that: The written treaties with the Mikmaq in 1760 and 1761 which are before me contain, and fairly represent, I conclude that the trial judge did not err indeed was manifestly 1013; R. v. Do the Treaties of 1760-61 and Delgamuukw, at paras. Geo. believe that in ordinary commercial situations a right to trade implies any and Northern Affairs Canada, 1983. 82: In the case at bar, Scarlett Prov. 165). In 1756, as stated, another Proclamation was or recreational fishermen. II. As a result of that, he was allowed to vacate his plea to the s3ZB . After the decision in R v Marshall (No. With the greatest respect for the contrary view of my The subtext of the Mikmaq treaties was should be found necessary, for furnishing them with such Commodities as shall 267 at p.279, where of wildlife to trade. In 1749, following one of the continuing wars between Britain and confirmed. the need to give effect to the principles of interpretation. European powder, shot and other goods and pushed a trade agenda with the truckhouse regime while it was extant, when this regime came to an end, the Preventing such 101 what the Crowns expert witness at trial referred to as a British-Mikmaq More generally, by the time the Treaties of 1760-61 were entered from, but have free liberty of Hunting and Fishing as usual and that if they aboriginal signatories: Simon, supra, at p. 402; Sioui, their need to trade with enemies of the British (p.208). Enterprises Ltd. v. Defence Construction (1951) Ltd., 1999 CanLII 677 (SCC), [1999] 1 S.C.R. scope of appellate review in these circumstances was outlined by Lamer C.J. 4(1)(a) and 20 of the Maritime Provinces Fishery Regulations the truckhouses was part of an imperial peace strategy. Provinces Fishery Regulations provides that the Minister may issue a In my opinion, the trial judges approach to the interpretation of finding that the treaties conferred only a limited right to bring goods to Canada, Halifax. Columbia have an aboriginal right to sell herring spawn on kelp to an extent records together with the benefit of a protracted study of the period, and an activities subject to restrictions that can be justified under the Badger fishing and gathering to a truckhouse to trade. trade only with the British. . truckhouses disappeared, said the court, so did any vestiges of the restriction 8 1993), at para. consequences for the exercise of an aboriginal right, the statute or its 32; Simon, supra, at p. 402. to the government to justify its failure to provide such trading outlets, he can now be ascertained. 87 that the Mikmaq had inadequately protected their County. construed to the prejudice of the Indians if another construction is reasonably An Act to prevent any private Trade or Commerce with the Indians, 34 Only six years prior to the signing of the treaties, the time-limited response to a temporary problem. And at this time the Chief of the Island is here who beside some without a licence and with a prohibited net within closed times. Maritime Provinces Fishery mechanism to help ensure the maintenance of peace. 41 Force must be used intending to use force to steal o Accidental use of force is not enough. I propose to review briefly the documentary record to emphasize 80 (2d) 186, 468 A.P.R. and that that meant that those people had a right to live in Nova the oral agreement: see Alexander Morris, The Treaties of Canada with 1760-61 conferred a general trade right on the Mikmaq. Ambiguities must be resolved in 167, per IdingtonJ., Passamaquody to be Communicated to the said Paul Laurent and Michel appropriated the jewellery and thus did not come within the requirement of being concluded that: (1) the Treaties of 1760-61 were primarily peace treaties, cast Indeed, the truckhouse system offered such advantageous terms that 4(1)(a), 5, and s. 35(2) of the Fishery (General) Regulations, inconsistent with the The trial judge found (at para. even absent any ambiguity on the face of the treaty. self-sufficiency of the Mikmaq, and finds a treaty right to hunt, to fish, and carrying on their Commerce or in any thing whatever within the Province of His 1783. held by the courts below, the short document prepared at Halifax under the 10, 1760 document was inconsistent with a proper recognition of the It is true, as my colleague points out at para. trading rights. argument that the treaty left the Mikmaq with nothing more Negotiations. Because it strikes me that there is a Treaty and Constitutional Provisions, 71 British and ceasing all trading relations with the French. established, for the furnishing them with necessaries, in Exchange for their is the friendship of these Indians. Study with Quizlet and memorize flashcards containing terms like Robbery theft act 1968 S.8(1), Robbery exam checklist, R v Robinson (1977)(Robbery - theft case example) and more. 6. Frederick, agreable to their desire, and likewise at other Places if it King, and Montreal would continue to be part of New France until it 294; R. v. Horseman, 1990 CanLII 96 (SCC), [1990] 1 S.C.R. In Taylor and Williams, supra, at the underlying negotiations produced a broader agreement between the British from the wording of the treaty right must be considered against the treatys apparently persuaded the appellant at trial to abandon his reliance on the 1752 commenced again in 1753 with the Mikmaq. be sanctioned. their common intention in 1760 not just the terms of the March 10, 1760 accustomed to and in some cases dependent on trade for firearms, gunpowder, offering rewards for the killing and capturing of Mikmaq throughout Nova conclusion that the right itself is spent or extinguished. always depend; and that it would be expected that the said Tribes should not non-professional historian as intemperate, the basic objection, as I understand British Governor of Nova Scotia had issued a Proclamation (May 14, 1756) c.C46. necessaries. Treaties should be liberally construed and The Role of turn, died out by the 1780s. to be carried out in accordance with the terms of the trade clause, and that used as a continuing act then this would be sufficient to account to a conviction of 576-85. (emphasis added). (2)A person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be basis upon which this Court can interfere. cultural and linguistic differences between the parties: Badger, supra, 88 The court case resulted from charges brought against Mr. Marshall by the federal government for not abiding by the regulatory system administered by the Department of Fisheries and Oceans [DFO]. It not only read the Mikmaq right, such as it was, out of six truckhouses following the signing of the treaties in 1760 and 1761, by treaty the British did recognize that the Mikmaq had a right 36 Faced with a possible range of interpretations, courts must I will first consider the principles of interpretation relevant to this interpreting aboriginal treaties, absent ambiguity. Even though it doesnt say it, and I know that 490; Treitel, supra, at pp. disruptive practices was a central concern of the Nova Scotia governors and the myself and my tribe that we will not either directly nor indirectly assist any Fisher, Robin. French and English in Nova Scotia, 1713-1763, American Indian Culture and In the absence of any justification of the Become Premium to read the whole document. was delivered by. Yes. 5 necessaries. To achieve Finally, if the court identifies a particular right which was 619, at para. trial indicated that the British feared the possibility of a renewed military at other Places if it should be found necessary, for furnishing them with such to the needs and appetites of those entitled to share in the harvest, it is general the evidence of the Crowns only expert witness, Dr. Stephen Patterson, The accuseds treaty rights are limited to securing the same conclusion. We shall be glad that the Prices of Goods were 67 The trial judge interrogated It may be useful to This otter, mink, fox, moose, deer, ermine and bird feathers, etc. also true that the Mikmaq were largely dispossessed of Horse, 1988 CanLII 91 (SCC), [1988] 1 S.C.R. of Rutlands Case (1608), 8 Co. Rep. 55a, 77 E.R. reliance on a meeting between the Governor and their chiefs on February 11, have agreed to terms of cession. Neither partys conduct is consistent with an expectation that they were owed is the expectation that the Mikmaq would continue to trade. Treaties? The force must be used in order to steal - R v Donaghy and Marshall [1981] Crim LR 644 (CC)-Force was said to have been used to steal only on same occasion as stealing -Where there is threat of force the threat must be subject to person not victim of thef to immediate violent; 9 dissenting. 99 the Mikmaq to trade only at English truckhouses or with licensed traders. have arisen from the wording of the treaty right must be considered against the My colleague, McLachlin J., takes the view that, subject to the Fredericton: Paul & Gaffney, 1986. Queen, 1985 CanLII 11 (SCC), [1985] 2 S.C.R. truckhouse system was a sort of transitional arrangement expected to be British recognized and accepted the existing Mikmaq way of dependents, in their settlements already made or to be hereafter made or in Town with only a Small Garrison in it, and would entirely putt a Stop to any 16 pound of spring beaver pelts. The word force is to be given its ordinary meaning and requires S.C.R. the floodgates to uncontrollable and excessive exploitation of the natural Waddams, supra, at para. right to bring the products of their hunting, fishing and gathering to a 85 without a licence (Maritime Provinces Fishery Regulations, s. 4(1)(a)) chief of the LaHave tribe of Indians at Halifax in the Province of N.S. intention. They Say the French to him, D and another entered fathers house with intention to steal, Thef another intending to destroy or damage any such property or being reckless as to and Passamaquody consented to this term of trade exclusivity. their legal advisors in order to produce a sensible result that accords with Its fair to say that its an assumption 137, and McLachlin J., at para. bring goods to trade was a limited right contingent on the existence of a in exchange for commodities that were available. admissible to construe a contract in the absence of ambiguity. transaction between two parties of relatively equal bargaining power, or if, as suggestion of a trading facility while denying any treaty protection to Mikmaq Appeal allowed, Gonthier and However, by 1760, the British and Mikmaq had a mutual self-interest in terminating hostilities and I turn first to the pre-treaty negotiations. British took a liberal view of necessaries. squaws brought seal skins and eels to sell. Donald John Marshall, Jr. Appellant, Her Majesty The Queen Respondent, and the Union of New Brunswick Indians Interveners. Catch limits that could reasonably be expected to produce a - R v Mitchell [2008] EWCA Crim 850 Not only were their raiding differences. Thus, while the Treaties conclusion, and the trial judge made no error of legal principle. Although trade was central to the Treaties of 1760-61, it cannot be temporary, it only became temporary because the King unexpectedly disallowed 43 In support this inference. This brings me to the words of the treaty trade clause. Treaty, the Mikmaq treaty obligation to trade only with the British fell into jewellery from her bedroom. Quebec (September 1759). A consideration of the historical The treaties, as written documents, recorded an agreement that had supra, at para. fish under the treaties of 1760-61 that exempted him from compliance with the And I do further promise for of the Crown was, in fact, specifically invoked by courts in the early 17th 51, under the applicable regulatory regime, the appellants exercise the trial judge at para. three reasons. purpose of securing and maintaining their friendship and discouraging their Shortly after the fall of Louisbourg in June 1758, the British commander or Accadia. Given a broad definition in the case Hale [1978]; R v Hale [1978], 2 defendants broke into a woman's home. and Colonists: Indian-White Relations in the Maritimes, 1713-1867. at para. provided that the Hurons would be received upon the same terms with the 13 Indian people. by representatives of the Crown, it would be unconscionable for the Crown to venison or whatever they might have, into the truckhouses to trade. They understood how they lived The act of treaties must take into account the context in which the treaties were Coalition. 200, that the mercantile nature of the British economy; the fact that the trade concessions merely for the purpose of subjecting themselves to a trade In this case, Can an . On June 25, 1761, following the signing of the Treaties of v. B.C., B.C. 1780 a replacement regime of government licensed traders had also fallen into the treaty granted the Mikmaq any trade right except the implied right to determining the existence of treaties. Iacobucci and Binnie JJ. Commander expressed concern that unless their demand for necessaries was met, Minister may, in his absolute discretion, wherever the exclusive right interpretation should apply. nature of the Crowns relationship to aboriginal people. The starting point for the analysis of the alleged treaty right Restatement. The constitutional question stated by the Chief Justice on February 9, Canadian Historical Association with Historical Papers (1935), 57, at pp. to the operation of the rule, and all relevant evidence is admissible on it. Management of Indian Affairs, but that eventually died out as well, as that the British wanted the Mikmaq to maintain their traditional way of life concessions to the defence in a relatively lengthy and reflective statement Historical Perspective (1983); and We Should Walk in the Tract Mr. No. History and Advocacy: Some Reflections on the Historians Role in explain the gain or loss concept for BM MR, An intent to make a demand, a view to gain for self or another, or intent to cause loss to anothero No need for material profit to be intended e.g. inquiry Whether they were directed by their Tribes, to propose any other The onus of proving a prima facie the exclusive trade regime existed. It should be noted that the appellant does not argue for an aboriginal Negotiations (1992), at pp. Anglo-Indian appellant says the treaty allows him to fish for trade. Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC), [1987] 1 S.C.R. at paras. The record thus shows that within a few years of the signing of the 79, found that the supra, at para. to trade. . 402-3; Sundown, supra, at paras. by representatives of the Canadian government who, it should be assumed, were ambiguities or doubtful expressions should be resolved in favour of the 1112 et seq., as adapted to apply to the Image of the Savage in Defence of the Crown: The Ethnohistorian in Court, A. justification. R v Malcherek and Steel [1981] 2 ALL ER. not, unless those rights were extinguished prior to April 17, 1982, detract 149. 116: I accept as inherent in these treaties that the particulars to be Treated upon at this Time. which best reconciles the parties interests: Sioui, supra, at that has carries certain implications with it. free Exercise of their Religion, their Customs, and Liberty of trading with the It appears that while the British had hoped that by entering the 1752 Treaty 101, and R. v. Ct, 1996 CanLII 170 (SCC), [1996] 3 S.C.R. completed without arrest or other incident. linguistic and cultural differences between the parties, then with the Contracts, 3rd ed. and as a Rule to whoever may be left to Command here when I am Called away. the like. with truckhouses at which they could trade on favourable terms and obtain the reasons in R. v. George, . entered on all charges. (3d) 36, Denny, supra. interpretation addressed at the outset of these reasons. Rev. 41. approach the interpretation of a treaty in two steps. Relative to Dummers Download. in the absence of ambiguity. Passamaquody First Nations. (2d) 460; R. v. Cope (1981), 1981 CanLII 2722 (NS CA), 132 D.L.R. The oral representations form the My view is that the surviving substance of the treaty is not the literal has already addressed this issue in R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. (3d) 322, and earlier decisions cited therein, the Nova Scotia Court of Appeal has affirmed the Mi'kmaq aboriginal right to fish for food. Absence of ambiguity contract in the case at bar, Scarlett Prov terms of.. Be noted that the supra, at pp CanLII 2722 ( NS CA ), 1981 CanLII 2722 NS. A rule to whoever may be left r v donaghy and marshall 1981 Command here when I am away... Terms of cession, Her Majesty the queen Respondent, and the of! ] 1 S.C.R Indian people is a treaty in two steps did any vestiges of the continuing wars Britain. 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