Before the arrival of Europeans in North America, Aboriginal peoples had developed representative political institutions and a body of customary law. These Aboriginal forms of government and laws survived European settlement in North America. It is arguable that section 35 of the Constitution Act, 1982, which "recognized and affirmed" Aboriginal and Treaty rights, gave some constitutional recognition to them.2
The interaction between Aboriginal forms of government and those of European settlers is a complex topic addressed in Part Five. The focus of this chapter is on the manner in which representative political institutions were imported to North America as part of the colonial law established under British authority.
The earliest European settlement in what is now Canada was established by the French. Following the conquest in 1759, certain aspects of the legal system of the former colony of New France were retained and incorporated into the legal framework of the colony of Quebec. In particular, although British law governed the relations between the state and individuals, the French civil law was retained in respect of the legal rules governing the relations among private individuals in contract, property, and civil wrongs. This distinctive legal framework continues in place today, with the civil law rules in Quebec being defined
in the Quebec Civil Code, which traces its origins to the Napoleonic Code adopted in France in 1804. In contrast, the civil law in the other nine provinces is governed by common law decisions of the courts and by various statutes defining the civil rights of private citizens. In this sense, as noted in more detail elsewhere in this book, the Canadian legal system incorporates elements of both the British and the French legal traditions.
In England, the Bill of Rights of 1688 had confirmed the supremacy of Parliament over the monarch. Before this time, the sovereign had claimed the right to govern through the exercise of the royal prerogative.3The Bill of Rights stated that the monarch could not, through the exercise of the prerogative, suspend or dispense with statutes enacted by Parliament. It also stated that taxation could only be imposed through a statute rather than by the sovereign through the power of the prerogative. Further, the Monarch’s prerogative powers could be limited through the enactment of a statute. The Bill of Rights reinforced the famous decision of Lord Coke in the Proclamations Case,4where Coke had held that the monarch had no power to amend statutes or to alter the common law through the exercise of the prerogative.
Thus, by the end of the seventeenth century, it was clearly established in England that the exercise of the royal prerogative was subject to statute, and that the enactment of legislation or the imposition of taxes required an Act of Parliament. There had developed a right to representative political institutions, in the sense that laws could only be made by an elected Parliament rather than by the monarch exercising the royal prerogative.
The right to representative political institutions did not exist in all British colonies. British common law drew a distinction between colonies regarded as having been acquired by peaceful settlement as opposed to by conquest. In the case of colonies acquired by peaceful settlement, the colonists were deemed to have imported British common law principles with them. These common law principles included the same
right to representative political institutions as were enjoyed by British subjects in England. This meant that settlers in a settled colony had a right to have local colonial laws enacted through an elected assembly, rather than by an appointed governor. Further, taxation could only be imposed through statute - enacted either by a local colonial legislature or by the British Parliament - rather than through the exercise of the royal prerogative.
In colonies conquered by military warfare, the law of the conquered colony remained in force until altered by the appropriate British authorities.5There was no automatic right to representative political institutions in a conquered colony and the colony could be governed by the Crown directly, or by a colonial governor as the Crown’s representative, without any legislative assembly. Taxes, for example, could be imposed on a conquered colony either by the British government or by the local colonial governor without any need for popular ratification or approval by an assembly. However, according to the principle laid down in Campbell v. Hall,6if the Crown had granted, or promised to grant, a representative legislative assembly to a conquered colony, it could no longer alter the ordinary law of the colony by order in council. Changes in the law of such a colony required a statute enacted either by the British Parliament or by a representative legislative assembly of the colony.
British law regarded Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland as "settled colonies," ignoring the fact that large Aboriginal populations were present before contact with Europeans. The first legislative assembly in British North America was established in Nova Scotia in 1758.7Assemblies were established in Prince Edward Island in 1773, in New Brunswick when it was separated from Nova Scotia in 1784, and in Newfoundland in 1832.
The colonies that later became the provinces of Ontario and Quebec, in contrast to those in Atlantic Canada, were regarded for purposes of British law as conquered colonies. They had no automatic right to representative political institutions and could have been governed by the
Crown directly. Following the defeat of the French and the establishment of British sovereignty over Quebec in 1760, local governmental powers were exercised by the governor and an appointed Council from which Roman Catholics were...