Before investigating the powers of the colonial executive, it should be recalled that I concluded above that it was not possible for the executive to extinguish Aboriginal title unless it had been delegated the authority to do so. Extinguishing legal rights, including property rights, is the exclusive purview of the legislative branch and has been for several centuries. Eliminating such rights requires clear and plain legislation to that effect. Nonetheless, it is worth detailing the scope of authority inhering in the executive branch of colonial governments for several reasons.
First, the executive branch of colonial governments often had an executive council that had legislative powers.139 Governors were also responsible for approving laws made by the elected legislatures, thus playing an important role in the legislative process. Second, clearly delineating the scope of authority of the executive and legislative branches of colonial governments will
137 See concurring decision of LeBel J. in Marshall/Bernard, where he held that “[t[he Royal Proclamation of 1763 is evidence of British recognition of aboriginal modes of possession of the land.” Marshall/Bernard, supra note 3, at 133.
138 Chippewas of Sarnia, supra note 15 at para 201. The process through which the Royal Proclamation became a formal part of the treaty relationship was negotiated in the Treaty of Niagara in 1764. This treaty was negotiated in the summer of 1764, at the request of the Crown, and involved more than 2000 Chiefs. Here, the provisions of the Proclamation were read by the British representative who committed to the enforcement of the terms of the Proclamation: Ibid at paras 54-56. See also John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 125-126, 149-150; Paul Charles Williams, The Chain (LL.M. Diss.
Osgoode Hall Law School, 1982).
139 This was true of both New Brunswick and Nova Scotia, for example.
provide insights into the nature of colonial governance and the relationship between First Nations, colonial governments, and the Crown, even if such insights are in the end related only obliquely to the question of extinguishment itself. Third, the colonial executive was a representative of the Imperial Crown that applied the Crown’s policies in the colonies.140 Thus, if there existed any powers of extinguishment with the Crown, those would have been able to be delegated to the colonial executive. Fourth, this further analysis may prove valuable if there are any errors or omissions in my previous conclusions respecting the powers of the executive.
The Imperial Crown appointed colonial governors by means of a royal commission that conferred upon them powers and specific legal authority.141 Subsequent formal instructions laid out specific duties and rules of conduct.142 A governor’s authority, therefore, was delegated in nature. As such, the executive branch of colonial governments was subordinate to the imperial government and cannot be conceived of as having possessed sovereign authority – the authority of the governor was delegated, “derived from his commission, and limited to the powers thereby expressly or impliedly entrusted to him.”143 The specific instruments by which the powers of colonial governors were delegated were important in both their form and their content. In respect of form, the commissions by which governors were appointed were granted “by letters patent under the great seal.”144 Subsequent royal instructions “bore the signet and sign manual of the King.”145 These formal mechanisms were the only means by which authority could be delegated.146 It follows that other means of purported delegation could not have had the legal effect of delegating authority. In light of the extensive correspondence between colonial governors and the colonial office in London, it is particularly important that the form of
140 Stokes, supra note 68 at 149.
141 Tarring, supra note 75 at 24. See also Elizabeth Brown, “British Statutes in the Emergent Nations of North America 1609 – 1949” 7 Am. J. Legal Hist. 95 1963, at 101 where the author states that, unlike in the early American colonies, the Charter was not used as an organizational device in Canada, with the exception of the 1670 Charter granted to the Hudson’s Bay Company. This is largely true, though Brown overlooks the 1621 Charter to Sir William Alexander granting the entirety of the present day Maritime Provinces and part of Quebec. This charter may have been omitted as its terms were never satisfied and it is has little impact on subsequent colonization. For a detailed discussion of Charters colonies and the impact of charters on Aboriginal land rights see Slattery, Land Rights of Indigenous Canadian Peoples, supra note 126 at 105-111.
142 Tarring, supra note 75 at 24; Clark, Native Liberty, supra note 6 at 59; Chitty, supra note 27 at 34 – 35.
143 Musgrave v Pulido L.R. 5 App. P.111 as quoted in Tarring, supra note 75 at 24. See also: Clark, Native Liberty, supra note 6 at 58 – 59.
144 Alpheus Todd, Parliamentary Government in the British Colonies (Boston: Little, Brown, and Company, 1880) at 77; Clark, Native Liberty, supra note 6 at 59; Stokes, supra note 68 at 150.
145 Clark, Native Liberty, supra note 6 at 60 relying on Chalmers Opinions of Eminent Lawyers I: 225.
146 It could also be done by Act of the Imperial Parliament. The Quebec Act, 1774 and Constitution Act, 1867 are examples.
instrument relied on as evidence of delegation be scrutinized.147 Crucially, “it was not open for governors to assume from mere dispatches expressing opinions or sentiments a jurisdiction to make laws upon a subject.”148 Only instruments bearing the signet and sign-manual of the king or the great seal of Great Britain could legally delegate authority and transfer jurisdiction.
One example illustrates the importance of form and the extent to which governors were bound by formal delegations of authority. It was well established that upon a change in governor, the succeeding governor was appointed by “letters-patent under the Great Seal.”149 These formal mechanisms could be time consuming to produce and, as such, a workaround was sought that would allow the succeeding governor to take office and perform the duties of that office while awaiting the formal documentation. Though as 19th century treatise writer Alpheus Todd explained:
[a]s the preparation and issue of these formal and authoritative instruments usually takes considerable time, it became the practice, prior to the year 1875, to issue a minor commission, under the Royal sign-manual and signet, to a newly appointed governor, empowering him, meanwhile, to act under the commission and instructions given to his predecessor in office. But, doubts having been raised in certain cases, whether these minor commissions effectually authorized the holder to perform all the duties and functions appertaining to his office [the practice was discontinued] under the advice of the law officers of the Crown.150
Even a temporary “minor commission” bearing the signet and sign manual, then, was considered to be inadequate by the law officers of the time to confer authority beyond that explicitly detailed in the instrument. The temporary commission could not referentially confer the powers granted in the commission of the previous governor. A commission issued by way of letters patent, bearing the Great Seal, and explicitly detailing the authority to be held by the incoming governor was the only way to effectuate such a delegation. Coupled with the explicit statements referenced above, this example makes it clear that any communications not bearing the signet and sign-manual or great seal could not legally delegate authority. It is also clear that even those involved in the day-to-day operations of colonial governance did not always understand the high legal standards required to delegate power. Nonetheless, it was considered a matter of sufficient importance that the law officers felt compelled to modify the practice.
That this distinction is of considerable importance in the contemporary context is evident
147 Clark, Native Liberty, supra note 6 at 64
148 Ibid.
149 Todd, supra note 144 at 77.
150 Ibid.
from the Supreme Court’s decision in Calder.151 There, Judson J. relied on a letter to the governor of British Columbia, James Douglas, from the secretary of state for the colonies, E.B.
Lytton, as evidence that governor Douglas had been delegated discretionary power in dealing with Aboriginal land issues.152 It is useful to reprint the dispatch in full as it illustrates the importance of form. The dispatch states:
I have to enjoin upon you to consider the best and most humane means of dealing with the Native Indians. The feelings of this country would be strongly opposed to the adoption of any arbitrary or oppressive measures towards them. At this distance, and with the imperfect means of knowledge which I possess, I am reluctant to offer, as yet, any suggestion as to the prevention of affrays between the Indians and the immigrants. This question is of so local a character that it must be solved by your knowledge and experience, and I commit it to you, in the full persuasion that you will pay every regard to the interests of the Natives which an enlightened humanity can suggest. Let me not omit to observe, that it should be an invariable condition, in all bargains or treaties with the natives for the cession of lands possessed by them, that subsistence should be supplied to them in some other shape, and above all, that it is the earnest desire of Her Majesty's Government that your early attention should be given to the best means of diffusing the blessings of the Christian Religion and of civilization among the natives.153[Judson J.’ emphasis]
Judson J. interpreted this dispatch as delegating discretionary authority to Governor Douglas.
The highlighted passage is particularly telling, as matters of local concern were under the authority of colonial governments pursuant to their commissions. Thus, Judson J. refers to the colonial government as “the sovereign authority elected to exercise complete dominion over the lands in question.”154 It appears that Judson J. may have conflated the “full executive powers”155 of the governor with “sovereign authority.”156 As discussed above, colonial governments had an authority that was delegated in nature.157 Only formal instruments bearing the signet and sign-manual of the King or the Great Seal could delegate jurisdiction and, at least in some cases, even that was considered insufficient by the law officers.
A competing interpretation was provided by Justice Hall. Hall cited the same communication, though tellingly emphasized different passages. Hall J. placed his emphasis on
151 Clark, Native Liberty, supra note 6 at 64, where he states that “[o]nce again, the Calder case illustrates the pitfalls of insufficient attention to this matter of form.”
152 Ibid.
153 Calder, supra note 4 at 329.
154 Calder, supra note 4 at 344.
155 Ibid. at 326.
156 Ibid. at 344. See also Clark, Native Liberty, supra note 6 at 64-65.
157 See for example Cameron v. Kyte (1835) 3 Knapp 332.
the first and last sentences of the passage quoted above. In doing so, he construed the letter not as granting the authority to dispose of Indian lands, but as recognizing the restrictions on the powers of the colonial government, reminding the governor of his obligations under the law.158 Indeed, Hall J. noted that “[a] Governor had no powers to legislate other than those given in the commission.”159 Given this, Hall J. held:
If in any of the Proclamations or actions of Douglas, Seymour or of the Council of the Colony of British Columbia there are elements which the respondent says extinguish by implication the Indian title, then it is obvious from the Commission of the Governor and from the Instructions under which the Governor was required to observe and neither the Commission nor the Instructions contain any power or authorization to extinguish the Indian title, then it follows logically that if any attempt was made to extinguish the title it was beyond the power of the Governor or of the Council to do so and, therefore, ultra vires.160
This illustrates two important points. First, it confirms that any action taken by a governor outside the powers granted in a governor’s commission and royal instructions should be considered ultra vires. Second, it again illustrates the importance of form. While Hall J. held that the dispatch to Governor Douglas did not delegate authority beyond that conferred in the royal commission, he did so not on the basis that such an instrument could not do so, but rather on his interpretation of the content of the dispatch. As Bruce Clark has noted:
As a result of not paying due attention to the form of the instrument, an extremely important point (the extinguishment of aboriginal rights in British Columbia) was therefore treated largely as a matter of interpretation of a mere letter, a letter better to have been set aside in order to concentrate upon genuinely relevant instruments.161
A governor did not possess, and could not legally exercise, powers outside of those stated in the commission and instructions.162 In Cameron v. Kyte (1835) the Judicial Committee of the Privy Council held that the governor of the colony of Berbice could not modify the commission (i.e.
salary) to be recovered by the colony’s deputy vendue master as the power to make such a
158 Calder, supra note 4 at 409, 412.
159 Ibid. at 406.
160 Ibid. at 413.
161 Clark, Native Liberty, supra note 6 at 65.
162 See Roberts-Wray, supra note 57 on this point. A governor was required to obey dispatches, especially if following them was mandated in the commission or instructions establishing the office. These dispatches, however, were directory in nature and could not confer new powers or jurisdiction. This is implicit in Hall J.’s reasoning, as he identified only the commission and instructions as potential sources of the delegated authority to extinguish rights.
modification was beyond the scope of those delegated.163 The Privy Council held that a governor
“has only such portion of the sovereign authority as is expressly or by implication conferred.”164 In other words, a governor cannot “be considered as having a delegation of the whole Royal power in any colony.”165 In The Queen v. George Clarke (1848), this principle was held in New Zealand to apply equally to the granting of lands:
The Governor of a Colony, it would be admitted, had no power ex-officio to convey the lands of the Crown to a subject: he commonly executed conveyances of Crown lands it was true; but always by an authority expressly delegated to him either by the Crown or by Act of Parliament.166
It is clear from the foregoing that colonial governors, even where they could act in a legislative capacity, could not extinguish title unless the power to do so was expressly or impliedly delegated by means of the proper legal instrument. As the Privy Council stated in Cameron v.
Kyte, “if the Governor be an officer merely with a limited authority from the Crown, his assumption of an act of sovereign power, out of the limits of the authority so given to him, would be purely void.”167 Given these restrictions, it is of the utmost importance to determine what range of authority was delegated to specific governors in assessing extinguishment of title. Some important powers they may have been granted included: executive powers regarding colonial assemblies (prorogation, dissolutions, etc.), the power to grant or refuse assent to legislation, and the power to grant Crown lands.168 Nonetheless, none of these powers were inherent to the office of the colonial governor – each power must have been delegated; any party attempting to demonstrate extinguishment of title by an act of a the executive branch of a colonial government, be it legislative or otherwise, bears the burden of demonstrating that the authority to do so was explicitly delegated by the proper instruments.
163 Cameron v Kyte, supra note 157 at 609. See also Tarring, supra note 75 at 28.
164 Ibid. at 607-08. See also J.S Cotton & E.J. Payne, Colonies and Dependencies (London: MacMillan & Co., 1883) at 140, where the authors state that “[t]hough the governor is the Crown's vice-regent in the colony, he does not possess general sovereign power, his authority being limited by his commission, by the laws of the colony, and by the general regulations of the Home Government.”
165 Tarring, supra note 75 at 29.
166 The Queen v George Clarke (1848), as reprinted in Report of the Proceedings of a Trial in the Supreme Court at Auckland, on a Writ of Scire Facias (Wellington: R. Stokes, 1848) at 3.
167 Tarring, supra note 75 at 28.
168 Chitty, supra note 27 at 35; The power to give assent to bills, however, is itself circumscribed by the governor’s royal instructions, which “direct him to reserve certain bills, usually such as deal with the currency, the army and navy, differential duties, the effect of foreign treaties, and matters affecting the mother-country, for the actual assent of the Crown at home, or to assent to such bills only with a clause suspending their operation until they have been confirmed at home.” Cotton & Payne, supra note 164 at 140 – 141. See also Stokes, supra note 68 at 184 – 185.