A Mi'kmaw hunter pursues a fox through the woods, where it is killed by a dog walking off-leash with its owner. You are asked to consider the possible legal relationships at play in a claim to ownership.
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Writing and speaking about Indigenous Peoples in legal contexts #
Kelti McGloin, a JD student at the Schulich School of Law, and Professor Naiomi Metallic have created an excellent guide called Best Practices for Writing About Indigenous Peoples in the Canadian Legal Context. If some of the terminology in this context is unfamiliar to you, you can use this guide as a reference for in class discussions and in your written work throughout the year.
Hypothetical Facts #
Suppose that the Maw-lukutijik Saqmaq (Assembly of Nova Scotia Mi’kmaw Chiefs) has recently issued a statement underlining the significant role that Mi’kmaq harvesters play in establishing and sustaining healthy forest ecosystems.
A Mi’kmaw hunter pursues a fox (wowkwis, in Mi’kmaq) across a large tract of forest on the Eastern Shore of Mi’kmaki designated by Nova Scotia as provincial Crown Land (i.e. land “vested in the Crown” and “under the administration and control of the Minister” of Lands and Forests pursuant to the Crown Lands Act, RSNS 1989, c 114, s 9). After several hours, the hunter shoots and seriously wounds the wowkiws. Before the hunter can capture it, the fox is attacked and killed by a dog that is walking off leash with its owner, a white settler who lives nearby. Seeing the commotion, a patrolling conservation officer approaches the hunter and asks them to produce a hunting license as required by the Wildlife Act, RSNS 1989, c 504.
The Problem #
The hunter has a a Nova Scotia Mi’kmaq Harvester Identification Card issued by the Assembly of Nova Scotia Mi’kmaw Chiefs but no hunting licence. The dog owner happens to be carrying a licence and claims exclusive property in the fox. Is the dog owner correct? Why or why not?
Guide to Reading and Analysis #
This problem asks you, first of all, to think carefully about the question of where claims to property come from–that is, about the source (and therefore the nature) of property as the basis for a legal claim. By identifying those different possible sources of property from among the options we are exploring this week, you will gain a better understanding of the different ways in which parties to this dispute might characterize and explain their claims to ownership of the fox.
Step 1: Your starting point is to read the excerpts from John Locke, Robert Hale, and James [sákéj] Youngblood Henderson. Each of these writers has a different answer to the question of where property (defined broadly) comes from, and how recognition for and enforcement of property rights and obligations relates to the political or governmental authority. Locke believes that property precedes government and the state and is rooted in possession as an expression of individual human labour. Hale, by contrast, sees property as a direct expression of state power and government coercion–even when that power is manifested as mutual coercion between two people. Henderson takes a different approach altogether, situating law, property and land tenure at the intersection and encounter between legal regimes and normative orders within a broader system of international or confederated (Nikmanen) relationships. How would you describe and compare each of these perspectives in your own words, and which account seems most compelling to you? Why?
Step 2: Next, look at the materials that serve as relevant examples or expressions of each of these three perspectives: Henderson (Peace and Friendship Treaties); Hale (Charter of the Hudson Bay Company, Wildlife Act); and Locke (the line of common law cases on possession: Armorie v Delamire, Pierson v Post, Keron v Cashman, Keeble v Hickeringill, the excerpt on ratione soli). How would you use these legal sources to argue for and apply each of Locke, Hale and Henderson’s perspectives to the dispute over the fox? Who benefits from each?
As you complete these readings and use them to analyze the problem, continue to refer back to the historical context described in the lesson for this first unit. During the early period of British imperialism in Indigenous North America, the three different perspectives described by Henderson, Hale and Locke were not mutually exclusive but, to a degree, coexisting–serving different functions, aims and interests that contributed in significant ways to the early path of colonialism and its subsequent manifestations in what would become Canada.
Readings for this Unit
Readings for this unit are listed here and ordered alphabetically. The reading guide above explains how to approach the readings for this unit. But you should also note the "reading links" the appear in the sidebar for each reading. These will help you to make connections between different materials.
- Armorie v Delamirie, (1772) KB, 1 Strange 505, 93 ER 64: The plaintiff chimney sweep found a jewel in the course of his work and took it to the defendant to have it appraised. Upon demanding the jewel's return, the defendant refused to give it back to the plaintiff.: The plaintiff chimney sweep found a jewel in the course of his work and took it to the defendant to have it appraised. Upon demanding the jewel's return, the defendant refused to give it back to the plaintiff.
- Charter of the Hudson Bay Company (1670) : Placeholder
- James [sákéj] Youngblood Henderson, Míkmaw Tenure in Atlantic Canada: Professor Henderson develops a Mi'kmaq interpretation of the Peace and Friendship Treaties and situates Mi'kmaw land tenure systems in this context.
- John Locke, Second Treatise on Government (1690) : In this excerpt, Locke sets out to establish a theory to explain how property rights can arise in a pre-political 'state of nature'. It remains one of the most powerful stories about the source of property rights in Anglo-Canadian law as well as a basis for legal rationales of settler colonialism.
- Keeble v Hickeringill, (1707) 103 Eng Rep 1127, 11 East 574 (QB): Placeholder: Defendant scares the ducks away on Plaintiff's land.
- Keron v Cashman, 33 A. 1055 , 1056 (Jan 11, 1896): A group of boys discovers a lost sock and, only after playing with it among the group for some time, discovers that the sock contains a large sum of money.: A group of boys discovers a lost sock and, only after playing with it among the group for some time, discovers that the sock contains a large sum of money.
- Peace and Friendship Treaty (1725): This treaty—the first in a line of treaties entered into by the British and Indigenous nations in the Atlantic region—was first signed in Boston in 1725. The same treaty was signed with different Indigenous parties one year later in 1726
- Peace and Friendship Treaty (1752): This text of the 1752 treaty is quoted in R v Simon, [1985] 2 SCR 387 at para 6.
- Pierson v Post, (1805) 3 Caines 175: Two hunters get into a dispute about who has gained property in a fox in the course of a hunt, addressing the basic question of what is required in this context to establish possession.
- Ratione Soli: Placeholder: Brief discussion of the doctrine of ratione soli.
- Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State: Hale discusses the unique ways in which state-created and enforced property is inevitably coercive.
- Royal Proclamation (1763): A edict issued by King George III in 1763 following the Treaty of Paris--by which Britain acquired control over French territories in North America--and establishing the British Crown's colonial policy at the time with respect to Indigenous land rights.
- Wildlife Act, RSNS 1989, c 504: Legislation establishing a regulatory regime to govern hunting and fishing in Nova Scotia, including key provisions around the proprietary status of wild animals.