Hello Reader, this time Tabir Hukum will discuss about reception of imperial law by a colony.
Of course, the nation state that we know as Canada did not exist as a legal or political entity when the people of feudal England were working out these complicated categories of property rights. The British acquired sovereignty over different parts of what is now Canada at different times and by different means; the particular history of each region determined the law that applied when it became a British colony. The British acquired sovereignty over most of what is now Canada by settlement. At international law, that means by taking possession of land that is previously uninhabited, called terra nullius.
An uninhabited land has no existing law, so the settlers bring their law with them - the law of the colonizers is received by the colony. In contrast, if a state acquires new territory by conquest, or by cession of the territory by the peoples who inhabit it, the law in effect at the time of the conquest continues in effect until it is changed by the conquering state, or by the new government established by the conquerors.
These three categories - settlement of terra nullius, conquest, or cession - are not nuanced enough to encompass the range of relationships established between Europeans and the indigenous peoples in lands that bacame, at one time or another, European colonies. Most of the new lands "discovered" by the European explorers were already inhabited, and so the terra nullius theory came to mean that so long as the indigenous peoples were few in number, and without many of the trappings of European civilization, they were regarded as having no law.
In 1992, in the context of a claim for recognition of infigenous peoples' land rights, the Australian High Court in Mabo v. Queensland, 66 A.L.J.R. 408, rejected the racist assumption that the Australian continent was a terra nullius when the British arrived, and declared that land rights of indigenous peoples, as established by their laws and customs, were not extinguished simply by the arrival of British common law and equity. In Canada, the Supreme Court has recognized the continuing existence of aboriginal law alongside the law received with European settlement.
Exactly what law is received depends on the date of reception. The date of reception is not necessarily the date that the first settlers arrive in the colony. In some jurisdictions, the date of reception is set by legislation. In British Columbia, it is 19 November 1858. That means that all relevant legislation in force in the United Kingdom at that date became part of the law of British Columbia, and remained part of the law of British Columbia until changed by the legislature of British Columbia. The date of reception in the three prairie provinces is 15 July 1870, the date set for transfer of jurisdiction to the Canadian government from the Hudson's Bay Company, which held the territory by a Royal Charter granted in May 1670. In te absence of a specified date of reception, the date is usually the date that the colonial legislature first met, or the date of royal assent for its first lagislation. That gives the older colonies a much earlier date of reception than western Canada. For Nova Scotia, the date is 3 October 1785; for Ontario, which was created out of the old colony of Quebec by the Constitutional Act, 1791, it is 15 October 1792; and for Newfoundland, 31 December 1832.
Quebec became a British colony by conquest, in the Seven Years' War. By the Treaty of Paris, 1763, France relinquished most of New France and Acadia to the British. By the Royal Proclamation of 1763, the British imposed English civil and criminal law throughout its new territories. Civil law for private law matters, including property rights, was re-introduced in Quebec in 1774, but not in Acadia, which had been annexed to Nova Scotia. New Brunswick was established as a separate colony in 1784; it treated 1660 as the date of reception, when Charles II was restored to the therone. For Prince Edward Island, the date of reception is 7 October 1763, the date of the Royal Proclamation introducing English law into Britain's new North American possessions.
The basics of real property law in England, including Quia Emptores and the Statute of Tenures, were thus received law in the colonies that became Canada. For greater certainty, the Constitutional Act of 1791 stated explicitly that all future land grants from the Crown in Ontario were to be in free and common soccage. By the same legislation, grantees in Quebec could request Crown grants in free and common soccage, instead of in the civil law form.
Umpteen posts of tabir hukum about reception of imperial law by a colony, hopefully the writing of tabir hukum about reception of imperial law by a colony can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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