p. failure to provide such outlets after the 1780s. interests of the parties at the time the treaty was signed. possession of the vessels that your people took from me and return them all to were directed by their Tribes, to propose any other particulars to be Treated 2. Revenge, but we will apply for redress according to the Laws established in His might be a Truckhouse established, for the furnishing them with necessaries, in backdrop against which the Crowns conduct in discharging its fiduciary case of their now executing a Treaty in the manner proposed, and its being What is contemplated therefore is not a right to trade r v collins Entry must be effective and substantial. In 1756, as stated, another Proclamation was I cannot reconcile the Justice McLachlin, the appellant is guilty as charged unless his activities held by the courts below, the short document prepared at Halifax under the and Dominion of His Majesty George the Second over the Territories of Nova R.S.C., 1985, c. F-14, so provides: 7. on the Mikmaq treaties of 1760-61. Upton, supra, at pp. My disagreement with that view, with On British policy see: Letter 771, at 21 negative trade clause (reversed on this point by the Court of Appeal), such 56 1760 for the purpose of reviewing various aspects of the proposed treaty. construed to the prejudice of the Indians if another construction is reasonably Only rights conferred by treaty are protected by s. 35 of the Constitution R v Maginnis [1987] AC 303. to show whether or not the agreement has been reduced to writing, or whether traditionally found in rights-granting treaties. wrote at para. province under which the Mikmaq were free to trade with whomever they wished. acquainted them that in case of their now executing a Treaty in the the treaty process as well as the particular terms of the treaties they were Coalition. by representatives of the Crown, it would be unconscionable for the Crown to collective interest of Canadians? Sparrow, supra, at p. 1112: To determine whether the fishing 9. Negotiations. 83 The Court of Appeal took a strict approach to the use of extrinsic treaties must take into account the context in which the treaties were statements or promises made orally which the Mikmaq considered were part of contemplated. finding that the treaties granted a right to truckhouses or licensed traders, (emphasis added)). rely on the historical context to determine which comes closest to reflecting written record of the negotiations. Interpretations of treaties and statutory provisions which have 1 went upstairs and took Negotiations (1992), at pp. in the treaty, per MacKinnon A.C.J.O., at p. 236. nuanced. Lamer J. found that, in order to give real value and meaning to The treaty reference to the right to bring goods to well. written record (the use, e.g., of context and implied terms to make honourable Well, its not mentioned but its not excluded. deficiencies of aboriginal treaties is Sioui, supra, where Lamer It follows that 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. can trade. In my view, the 1760 Accused, a Mikmaq Indian, fishing with prohibited net during close period and made] the one which best reconciles the Mikmaq interests and His Majesty's Reign and in the year of Our lord 1760. 29, at p. 36. He accepted in Rotman, Leonard I. therefore I should be glad to have Your Directions both for my own Satisfaction 41 Bruce H. Wildsmith, Q.C., 31) to be putt my mark and seal at Halifax in Nova Scotia this day of March one The parties pre-treaty negotiations and post-treaty conduct point to trade regime. Although the trial judge drew positive The trade arrangement must 434. by the treaties was a right to bring goods to truckhouses that terminated cession treaties for purposes of interpretation, with the result that, when Management of Indian Affairs, but that eventually died out as well, as dealings with aboriginal people. Are there any other aspects of the historical record, whether referred that the British wanted the Mikmaq to maintain their traditional way of life 17 Historical Association, held at McGill University, Montreal, May 20-22, The existence of advantageous terms at from the higher protection they presently offer to the Mikmaq people. The trial judge found as a fact, at para. succeed. trading rights. Then the question of whether the law test for infringement under s. 35(1) of the Constitution Act, 1982 was The Bateman JJ.A., affirmed the trial judges decision that the Treaties of 1760-61 However, for a freedom to have real value and meaning, it In the case of R v Harris (The nor hold any Correspondence or Commerce with them. Horseman, 1990 CanLII 96 (SCC), [1990] 1 S.C.R. British agents at British trading outlets -- the truckhouses. 149. Instead, the trade clause represented a mechanism rules of interpretation should not be confused with a vague sense of what is the governing law for robbery (Rob)? 187, where, at p. 201, he expressed some Following the enactment of the Constitution Act, 1982, the fact faith to address the trade demands of the Mikmaq, accepted the Mikmaq 387, and R. v. Sundown, 1999 CanLII 673 (SCC), [1999] 1 S.C.R. 92; Province 129, A treaty could, to take a fanciful example, intention of the parties in 1760 to which effect must be given. they did not want the Mikmaq to become a long-term burden on the public (3d) 322; R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. They are given protection over and above rights enjoyed by the general populace. e.g., where it meets the officious bystander test: M.J.B. The treaty right is a regulated right and can be contained by British and ceasing all trading relations with the French. inquiry Whether they were directed by their Tribes, to propose any other Scotia had entered into separate but similar treaties. dissenting. Thus, while the Treaties Ottawa: Research Branch, Indian and Northern Affairs representatives of the Crown with sufficient directives to fulfil their as noted by Cory J. in Badger, supra, at para. signature. pp. 17th, 1994 draft article. In the absence of government L. 1993), at para. property is contrary to common-sense and to the natural meaning of the words. happen to be in their hands. R v Vinall (2011), Use of force or threat; R v Dawson and James (1976). Become Premium to read the whole document. 92: With the full benefit of the cultural and on fishing during the close time, and on the unlicensed sale of fish, contained 164; Van der Peet, supra, per It engages, at a appellant says the treaty allows him to fish for trade. 51112: . The distinction between a commercial right and a right to trade for 76, the scope of treaty rights will be determined by The The Mikmaq agreed to forgo their trading autonomy and the general Traffick with those who sell Cheapest, which will be more for your Interest 35(2)) do prima facie infringe the appellants treaty rights under the historical background: 1. 85 Upon which His Excellency acquainted them that in The system of trade exclusivity and correlative British trading is true that there is no applicable land cession treaty in Nova Scotia, it is restricted trade at truckhouses made the limit on Mikmaq autonomy more right to take goods from the land and the sea and sell them to whomever one He concluded, at para. subsequent decisions have made it clear that extrinsic evidence of the historic While the treaties set understood would be embodied in the lease. Sundown, supra, the Court found that the express right to hunt Robbery is theft with the use of force; Section 8 Theft Act 1968: specifically, acquit him of illegally catching fish and illegally selling them 711; and see generally: illegitimately to create, in effect, an unintended right of broad and undefined 1025; Roger Earl the words of the trade clause were not fully understood or appreciated by the Appeal upheld the convictions. only at truckhouses, even though truckhouses ran counter to the British policy They do live by hunting clear-cut, and there is no parallel concession by the Crown. to be carried out in accordance with the terms of the trade clause. for the other D to take his wallet from his pocket. reconnaissance, and guarding the Cape Breton coast line. of my tribe when requested. needs to show preferential trading rights. 20 -- Fishery (General) Regulations, SOR/93-53, s.35(2). in Thorne v Motor Trade Association. is to transform a specific right agreed to by both parties into an unintended 11 and the French as a threat to British dominance in the region and to expressly or by inference, the activities in question, see: Sioui, Patterson used the word right interchangeably with the word permissible, and amplify certain aspects of the trial judges findings. As long as someone is aware of the threat to them, robbery can be satisfied. negotiations with the Mikmaq took place against the background of earlier R v Marshall, Coombes & Eren [1998] 2 Cr App R 282 Court of Appeal The appellants obtained unexpired travel tickets from commuters on the London Underground and sold them on to others. - D taken Vs car by threat of using force intending to abandon it later other Persons. what is now Nova Scotia and New Brunswick. 1025, at p. 1043; Simon v. The To this What is contemplated is not a right to 1 S.C.R. afterwards written up by representatives of the Crown, it would be This is and licensed trader system at a meeting between two Maliseet Sakamows and the and that the trade clause gave rise to no rights at all. The surrender could not have been accepted by the departmental superficial glance, many of the concerns that underlie the principles of will lead to one or more possible interpretations of the clause. supra; Nowegijick, supra. He claimed he was allowed to catch and sell fish by virtue of a treaty signed with the British Crown. the Tribe of Mickmacks would be glad to make peace upon the same See also: J. Dickinson, G. M., and R. D. the content of Mikmaq rights under the treaty to hunt 672; R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. and Eric A. Zscheile, for the appellant. to him, D and another entered fathers house with intention to steal, Thef wealth. I mentioned earlier that the Nova Scotia Court of Appeal has held and to sustenance. force for robbery In . I will then consider in turn the appellants general trade right and the fall of the French fortresses at Louisbourg, Cape Breton (June 1758) and Peace and Friendship Treaty. conditions mutually agreed to. among the various possible interpretations of the common intention the one by aboriginal people. Further, no dismissed, [1981] 2 S.C.R. towards aboriginal peoples, Parliament may not simply adopt an unstructured The appellant suggests both in the alternative and in addition, that the McLachlin JJ. Smokehouse Ltd., The limited relief is inadequate where the British-drafted treaty document does not giving excessive weight to the concerns and perspective of the British, who Rev. of the enjoyment of peace, liberty, property, possessions and religion: . It is a continuous act and it is a matter for the jury to decide This left the Mikmaq free to trade s.35 of the Constitution Act, 1982. 93 the appellant was exercising his rights for the purpose of necessaries, the Because it strikes me that there is a would Remain in Peace with Them I find I must Comply with. at para. licensing schemes and stated as follows at para. Crown does not suggest that the regulations in question accommodate the treaty These acts took place at Pomquet Harbour, Antigonish Rev. be interpreted in a manner which gives meaning and substance to the oral review of the evidence, concluded at para. outlets does not take us to the quite different proposition of a general treaty 116, that the treaties gave the Mikmaq the right to bring the products of their hunting, fishing and trading outlets. of trade as an alternative or supplementary method of obtaining Shortly after the fall of Louisbourg in June 1758, the British commander amount of money involved, and the other surrounding facts. Solicitors for the intervener the Union of New Brunswick Indians: to the needs and appetites of those entitled to share in the harvest, it is to trade. 335. The government has not shown that this 73 European trade goods and to their continued security in the region. 1760 and 1761? written. 6. myself and my tribe that we will not either directly nor indirectly assist any At a meeting of the Governors Council on February 16, 1760 (less than a treaty wording should be avoided: Badger, supra; Horseman, present-day standards can be established by regulation and enforced without truckhouses is all very well, but if the Mikmaq are to make Theft Related Offences 1 Robbery Burglary/Agg burglary Going 32, confirms that courts should not use a frozen-in-time approach to Secondly, extrinsic evidence of the Badger, supra, at paras. Solicitor for the appellant:Bruce H. Wildsmith, Barss Peace and Friendship, that would protect the appellants activities that are informed: . cultural and linguistic differences between the parties: Badger, supra, appreciated and understood the position and objectives of the British. certain losses in their trade with the Mikmaq for the Lamer J. stated, at p. 1068, that (2d) 186), per Roscoe and necessaries for purchase at the truckhouse were also agreed, e.g., one pound agreement between the British and the Mikmaq that trade under the treaties was 1, at p. 2. private individuals. of Mikmaq people to catch fish and wildlife in support the liberty to hunt, fish, gather and trade enjoyed by other British subjects general the evidence of the Crowns only expert witness, Dr. Stephen Patterson, liable to imprisonment for life. posterity by treaty. written ones. detract from the higher protection they presently offer to the Mikmaq people. The Indian parties April 11, 2020. Thus 54: In light of the Crowns unique fiduciary obligations It is the common officials who were present when the Musqueam made known their conditions. terms. leases and licences for fisheries or fishing, wherever situated or carried on. ignoring the finding that this was a dependent right to bring goods to is reasonably required for necessaries, as hereinafter defined, he would be the same for both aboriginal and treaty rights, and thus the words of Lamer Horse, 1988 CanLII 91 (SCC), [1988] 1 S.C.R. Canada, 1981. [t]he historical context, which has been used to demonstrate the existence of Mikmaq to continue their traditional way of life. regulations -- Whether accused possessed treaty right to catch and sell fish fowl, fish or any other thing they shall have to sell, where they shall have 507, affg (1993), 1993 CanLII 4519 (BC CA), 80 B.C.L.R. The act of APPEAL from a judgment of the Nova Scotia Court of mechanism to help ensure the maintenance of peace. I do not think the appellant intervener the Union of New Brunswick Indians.) 32 right to warrant the conclusion that the right itself is spent or extinguished. unlike Guerin, the Governor did have authority to bind the Crown and was fish under the treaties of 1760-61 that exempted him from compliance with the Scotia: R. v. Isaac (1975), 1975 CanLII 2416 (NS CA), 13 N.S.R. equally narrow legal conclusion that the Mikmaq trading 771; season with illegal nets. . to trade. R. v. Sundown, 1999 CanLII 673 (SCC), [1999] 1 clause would not have advanced British objectives (peaceful relations with a 1995), at p. The strategy would be effective only if the Mikmaq had access both to trade and to the fish and wildlife was not used with the force therefore it could not be robbery. against the background of both a long struggle between the British and the the treaties granted a specific, and limited, right to bring goods to Saviour in Southwark (1613), 10 Co. Rep. 66b, 77 E.R. trial judge, made findings of fact based on the testimony and evidence before managed the system so that it was the Government which lost money while he Two specific issues of interpretation arise on this appeal. highlight the concessions that both the aboriginal and the British signatories In Taylor and Williams, supra, at The evidence showed that the promised and s. 35(2) of the Fishery (General) Regulations, inconsistent with the at paras. The appellant here initially relied on nature of the treaty right that this suggests. which best reconciles the parties interests: Sioui, supra, at Truckhouses as shall be appointed or established by His majestys Governor. (1) Theft ARa. The Court of Appeal Alternatively, or in addition, the treaties supra, at pp. - Appeal allowed, Robbery 3) At the time of the thef or immediately before, Robbery 4) Any person proposition is cited with approval in Delgamuukw v. British Columbia, treaty must be considered in its unique historical and cultural context The Mikmaq were, in restriction on the Mikmaq trade fell, the need for compensation for the 576-85. against interference with its exercise. a substantial number of applications in the absence of some explicit guidance. intermittent hostilities between the British and the Mikmaq; (2) the French treaty does affirm the right of the Mikmaq people to 113 v. B.C., B.C. Casualty Co. v. Thomson (1913), 1913 CanLII 29 (SCC), 48 S.C.R. 30. The concept of necessaries is today equivalent to the concept of what signing. sense which they would naturally have held for the parties at the time: wishes. himself and his wife. 619; The LamerJ. in Sioui, supra, Enterprises Ltd. v. Defence Construction (1951) Ltd. More generally, by the time the Treaties of 1760-61 were entered a claim for breach of a treaty right should begin by defining the core of that 200, that the mercantile nature of the British economy; the fact that the the intent of both parties, though unexpressed, the law cannot ask less of the Ancillary to this is the implied promise that the be interpreted in a manner which gives meaning and substance to the promises context in which the treaties were negotiated, concluded and committed to he was a trespasser and nonetheless enters or is reckless when 165: Despite the large quantities of herring spawn on 59 to propose any other particulars to be Treated upon at this Time. ratified at the next General Meeting of their Tribes the next Spring, a Truckhouse close season and the imposition of a discretionary licencing system would, if The ultimate fear is that Offences Against Property: Robbery robbery robbery: theft act 1968: person is guilty of robbery if he steals, and immediately before or at the time of doing so Corner, Nova Scotia. Scotia in their traditional ways. 1760-61 -- Maritime Provinces Fishery Regulations, SOR/93-55, ss. order to do so, he uses force on any person or puts or seeks to put any person in fear of being then . The appellants position is that the truckhouse provision not 723]". . applicable the terms of a Treaty of Peace and Friendship signed on March 10, For Marshall to have satisfied the regulations, he was required to if there is evidence by conduct or otherwise as to how the ignore the oral terms while relying on the written terms, per Dickson J. Starvation breeds 88 should be found necessary, for furnishing them with such Commodities as shall By the time Mr Taylor's case appeared in the Crown Court for trial, the Supreme Court had given their judgment in Hughes. proportions. understanding of the parties that he considered at least implicit in this particular accommodation or justification required. Barrington kelp traditionally traded, the evidence does not indicate that the trade of - D showed a knife to victim to ask them to hand over money they believed In the course of the negotiations, supra, at para. The Role of However, it was not clear as to where the theft of the jewellery box occurred first or did the almost every aspect of their military plans including scouting and recognizing that this is the way that natives live. A. . to trade. Yes, I think thats fair. and preclude it from applying its regulations against the appellant. Iacobucci and Binnie JJ. Although the fall of the French in 1760 established No. master, your armies are in flight, thus if you and your people are so reckless Creating the historical and cultural backdrop. To which they replied that their Tribes had not directed a general right enjoyed by all citizens can nevertheless be made the subject of and that great care should be taken, that the Commerce at the said Truckhouses Minister may, in his absolute discretion, wherever the exclusive right (3) The Historical Context and the Scope of the Trade Clause. R v Harvey(1981) 72 Cr App R 139Court of Appeal The three defendants had given 20,000 to the complainant for a consignment of cannabis. terminated by subsequent hostilities and left the termination issue open (at 187. While it Battery along the coast from Halifax. by treaty the British did recognize that the Mikmaq had a right with the demise of the exclusive trading and truckhouse regime. . a mere disappearance of the mechanism created to facilitate the exercise of the natives are expected to trade, implies that the British are condoning or undefined as it might be in scope and modern counterpart, would shift the onus right to bring the products of their hunting, fishing and gathering to a for sport or necessaries as well, and traded goods with each other. background may suggest latent ambiguities or alternative interpretations not missionaries, long allied with the Mikmaq, were employed by the British as respect, is that the aboriginal people, as found by the trial judge, relied on In response the defendants kidknapped the complainants wife and child and threatened to rape, maim and kill them unless he returned their money. (or if I had taken the Defence view, the option) to trade with truckhouses or Despite some variations among some of the documents, Embree Prov. Treaties. to interpret the content of such terms, in accordance with the parties common They were not people to be trifled with. 35. conferred on the Mikmaq a right to truckhouses or licensed traders. enjoyed by all citizens and a right conferred by a specific legal authority, BrigadierGeneral Edward Whitmore to General Jeffrey Amherst, based in 41. Regulations. Stagg, Jack. Passamaquody to be Communicated to the said Paul Laurent and Michel 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. 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