Analytical Essay

Analytical Essay

Analytical Essay

Introduction

The unanimous decision of the appeal sitting as a panel in The Chippewa of Sarnia Band Canada raises, and in the writer's view, confuses some fundamental issues of the general law including the relationship between the common law and equity, the memo principle and the doctrine of the bonfire purchaser of value (Robert, 2010, 66). In the area of aboriginal law, it fails to apply relevant decisions of the Supreme Court of Canada on the requirement for a valid surrender of reserve lands before the interests of Indians in such lands may be defeated and ignores the constitutional protection for aboriginal and treaty rights.

Facts

The essential facts of the Sarnia case are that in , a businessman, politician and land speculator named Cameron negotiated a sale of a quarter of the Chippewa reserve with three chiefs of the band (Graham, 2009, 33). There was no surrender of the reserve by the members of the band as required by the Royal Proclamation (Steven, Schwarcz 2003, 321). In the next years, Cameron sold portions of the land to settlers who occupied and developed them. In, letters patent were granted by the Crown to Cameron apparently in the mistaken belief that a surrender of the lands had been made. In contrast to the finding of the Motions Judge, the Court of Appeal found that the Chippewa both acknowledged and accepted the sale of the lands for years after the Cameron transaction until it was discovered that there was no documentation evidencing the surrender of the lands. At the time of the hearing, the land was occupied by over, businesses, organizations and individuals who had no reason to know of the lack of a surrender (John, Langbein, 1997, 189).

Legal Analysis

After summarizing its findings with respect to the facts, the Court proceeded to analyze the legal issues as follows:

This Proclamation provided that, in colonies to which it applies, Indian lands could only be acquired if they were first surrendered to the Crown by the Indians at a public meeting of the nation or tribe held for that purpose. As noted by Dickson J. of the Supreme Court of Canada in Guerin, this provision is the origin of the surrender requirement in the Indian Acts. The motions judge in the Samoa case held that the Royal Proclamation applied to the Cameron transaction in , which the surrender provision was not followed and, therefore, the letters patent to Cameron were illegal and void's The Australian Court of Appeal disagreed with this conclusion (John, Langbein, 1995, 625).

The Australian Court of Appeal held in the Bear Island case that the surrender provision of the Royal Proclamation had been repealed in by the Quebec Act. In Samoa, the Court said it was bound by this prior ruling but that, in any event, it was not necessary to its analysis to determine the precise legal status of the Royal Proclamation at the time of the Cameron transaction it is respectfully submitted that a great deal turned on the ...