Problems in determining the date of reception in Prince Edward Island.

• Author: McCallum, Margaret E.

When lawyers need to know the law on a particular subject in a Canadian province or territory, they check the relevant legislation and case law. Assuming that the lawyer is dealing with a matter within provincial rather than federal jurisdiction, the lawyer must consider whether there is something of relevance not only in statutes that have been enacted by the legislature of the province or territory, but in statutes that might have been included in the body of law that applied when the legislature came into existence. A colony governed by the law of England begins life endowed with the wisdom and learning expressed in judicial decisions and in the legislation of England, or at least as much of the legislation as was suited to the circumstances of the colony. The colony receives whatever law exists at a date known as the date of reception. Legislatures may choose a date of reception by legislation, but the legislature in Prince Edward Island has made no such choice. In these circumstances, the date of reception depends on the specific history of the colony, including how it came to be a British colony, who lived there previously, and when the colonial legislature first met. (1) The date of reception of English law in Prince Edward Island, then, is found somewhere in the chronology that follows, but exactly which date is still an open question.

Long before Prince Edward Island was a British colony or a Canadian province, the Mi'kmaq inhabitants knew it as Abegweit or Minago. (2) The earliest French explorers and settlers noted the presence of Mi'kmaq on the Island, but gave the place a new name, Ile Saint-Jean. (3) The French capitulation to the British at Louisbourg on 26 July 1758 included an agreement that French soldiers would be removed from lie Saint-Jean as soon as the British acquired transport. The British, however, decided to evacuate the Acadian and Mi'kmaq inhabitants, too, although two hundred or so of each group avoided evacuation and remained on the Island. The Treaty of Paris, signed on 10 February 1763, confirmed Britain's sovereignty over lie Saint-Jean, which the British treated as an uninhabited territory. The French name was anglicized to Island of Saint John or Saint John's Isle, and the territory annexed to the existing British colony of Nova Scotia by the Royal Proclamation of 7 October 1763. A government survey divided the Island into 67 lots, or townships, of around 20,000 acres each and on 23 July 1767 these were allocated by lottery to a carefully-selected group of about one hundred individuals. Some of these estate holders petitioned the Crown to make the Island a separate colony, and on 14 July 1769, the Crown issued a commission to the new colony's first governor, Walter Patterson. Patterson convened the first meeting of his legislative council on 19 September 1770 and opened the first session of the Island's first elected assembly on 7 July 1773. (4)

Note that we are dealing here with an abstraction--a "new" colony exists as a juridical entity, but not, at least in its "newness", as a physical territory. The "new world" which the European powers carved up into New France, New Holland, New England, New Spain, and so on, was already home to peoples who had their own explanations of how the territory they occupied came to be theirs, and their own laws and customs for maintaining order in their territory. European international law recognized three ways in which a European power could acquire sovereignty over territory beyond its existing borders: by conquest, by cession, and by discovery and subsequent settlement. In conquered or ceded colonies, the law of the conquered or ceded territory continued in effect until changed by the new sovereign power, although "barbarous laws, repugnant to the fundamental principles of English law" were immediately nullified. (5) In a colony acquired by discovery and settlement, the settlers received the law in effect in the colonizing country at the date of settlement, excluding those statutes or judicial rulings that were clearly unsuited to conditions in the colony. (6)

As with many other abstract legal principles, the comforting and confident simplicity of these rules disappears on contact with the complexity of the world of facts. According to accepted principles of international law, a European power could acquire sovereignty over only one category of territory by settlement: terra nullius, unsettled land, occupied by no one, and thus open for settlement. Although much of the "new world" was home to indigenous peoples who had occupied the land long before Europeans arrived, acquisition by settlement became the default categorization. Terra nullius was a legal categorization, not a literal or factual description of whether a land was occupied or unoccupied when "discovered". (7)

In Australia, for example, legislatures and courts denied for two hundred years that aboriginal peoples had any rights derived from their original occupation of the continent. Instead, the Crown granted property rights to settlers as if the English had acquired sovereignty by discovering and settling a land that was terra nullius, with no existing inhabitants and therefore no existing laws. In legal theory, although the aboriginal people lived on and from the land, their presence could not establish their ownership of the land; this was because the existing aboriginal inhabitants were regarded as so "uncivilized" that they had no laws worthy of recognition. In June 1992, the Australian High Court rejected the terra nullius theory, at least insofar...