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eBook details

• Title: After Bernard and Marshall (Canada) (Special Forum: Perspectives on R. V. Marshall; R. V. Bernard)
• Author : University of New Brunswick Law Journal
• Release Date : January 01, 2006
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 285 KB

Description

As good historians and good storytellers know, the starting and ending points for one's narrative may determine whether one has a comedy, a tragedy, or a farce. For the Crown, the Bernard case began on 29 May 1998, when Joshua Bernard was arrested, his tractor trailer seized, and the logs he was hauling confiscated. For Bernard, and for the Mi'kmaq woodsworkers involved in the Marshall case in Nova Scotia, the events that brought them to court began much earlier, with the arrival of Europeans in what had, until then, been Mi'kmaq territory. The arrival of Europeans made new questions relevant--questions about sovereignty, jurisdiction and ownership of land and resources. In trying to work out answers to these questions today, we are faced with inconsistent claims about the basis of rights to land and resources in what is now Canada. Rights of the non-aboriginal population in Canada are generally derived from Crown grants, either of fee simple estates, or of licences or leases or other kinds of permission to harvest resources on Crown land or in waters over which the Crown claims jurisdiction. The Crown's authority to make such grants, at least in parts of the country not covered by land surrender treaties, derives from the British claim to have acquired sovereignty in what became British North America on the basis of discovery and settlement, or, in some places, conquest of the earlier French colonizers. But at international law, claims to sovereignty based on discovery and settlement were possible only if the land were a terra nullius, an uninhabited land, with no prior occupants, or occupied by peoples who were so uncivilized that the colonizers could ignore their claims. Bruce Ryder calls the British claim to sovereignty based on discovery as the "ugly fiction" woven into the fabric of Canadian law. (1) Nonetheless, aboriginal peoples in Atlantic Canada claim rights that may predate the acquisition of British sovereignty: rights recognized in treaties signed by representatives of the British Crown and the Mi'kmaq, Maliseet and Passamaquoddy while Britain and France were fighting over who would rule in what became British North America; rights to aboriginal title derived from these peoples' occupation of the land, and other aboriginal rights derived from activities that were integral to the distinctive culture of the aboriginal peoples now claiming the right prior to their ancestors' contact with the European colonizers.

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