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A Historical and Legal Study of Sovereignty in the Canadian North : Terrestrial Sovereignty, 1870–1939

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A Historical and Legal Study of Sovereignty in the Canadian North : Terrestrial Sovereignty, 1870–1939 University of Calgary PRISM: University of Calgary's Digital Repository University of Calgary Press University of Calgary Press Open Access Books 2014 A historical and legal study of sovereignty in the Canadian north : terrestrial sovereignty, 1870–1939 Smith, Gordon W. University of Calgary Press "A historical and legal study of sovereignty in the Canadian north : terrestrial sovereignty, 1870–1939", Gordon W. Smith; edited by P. Whitney Lackenbauer. University of Calgary Press, Calgary, Alberta, 2014 http://hdl.handle.net/1880/50251 book http://creativecommons.org/licenses/by-nc-nd/4.0/ Attribution Non-Commercial No Derivatives 4.0 International Downloaded from PRISM: https://prism.ucalgary.ca A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH: TERRESTRIAL SOVEREIGNTY, 1870–1939 By Gordon W. Smith, Edited by P. Whitney Lackenbauer ISBN 978-1-55238-774-0 THIS BOOK IS AN OPEN ACCESS E-BOOK. It is an electronic version of a book that can be purchased in physical form through any bookseller or on-line retailer, or from our distributors. Please support this open access publication by requesting that your university purchase a print copy of this book, or by purchasing a copy yourself. If you have any questions, please contact us at ucpress@ ucalgary.ca Cover Art: The artwork on the cover of this book is not open access and falls under traditional copyright provisions; it cannot be reproduced in any way without written permission of the artists and their agents. The cover can be displayed as a complete cover image for the purposes of publicizing this work, but the artwork cannot be extracted from the context of the cover of this specificwork without breaching the artist’s copyright. COPYRIGHT NOTICE: This open-access work is published under a Creative Commons licence. 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For more information, see details of the Creative Commons licence at: http://creativecommons.org/licenses/by-nc-nd/3.0/ UNDER THE CREATIVE UNDER THE CREATIVE COMMONS LICENCE YOU COMMONS LICENCE YOU MAY: MAY NOT: • read and store this document • gain financially from the work in any way; free of charge; • sell the work or seek monies in relation to the distribution • distribute it for personal use of the work; free of charge; • use the work in any commercial activity of any kind; • print sections of the work for • profit a third party indirectly via use or distribution of the work; personal use; • distribute in or through a commercial body (with the exception • read or perform parts of the of academic usage within educational institutions such as work in a context where no schools and universities); financial transactions take • reproduce, distribute, or store the cover image outside of its place. function as a cover of this work; • alter or build on the work outside of normal academic scholarship. Acknowledgement: We acknowledge the wording around open access used by Australian publisher, re.press, and thank them for giving us permission to adapt their wording to our policy http://www.re-press.org 379 Not es Editor’s Note 1 Prime Minister’s Office, “Prime Minister Stephen as the United Nations Declaration on the Rights of Harper announces new Arctic offshore patrol Indigenous Peoples (UNCRIP). vessels,” 9 July 2007. http://pm.gc.ca/eng/media. 6 See Helge Ingstad, “Discovery of Vinland,” The asp?id=1742. Arctic Circular 15, no. 1 (January 1963): 2–6, 2 On this theme, see Ron Macnab, “‘Use it or Lose where the author locates the long-sought Vinland it’ in Arctic Canada: Action Agenda or Election of the Norsemen at the northern tip of Newfound- Hype?” Vermont Law Review 34/3 (2009), 3–14. land. The article also brings out the uncertainties that still persist regarding many aspects of the 3 Rob Huebert, “Canada and the Changing Inter- Norse voyages. national Arctic: At the Crossroads of Cooperation and Conflict,” in Northern Exposure: Peoples, Pow- 7 H. P. Biggar, ed., The Precursors of Jacques Cartier ers and Prospects for Canada’s North, eds. Frances 1497–1534 (Ottawa: Government Printing Bureau, Abele, Thomas J. Courchene, F. Leslie Seidle, and 1911), 8–10. France St-Hilaire (Ottawa: Institute for Research 8 Richard Hakluyt, The Principal Navigations, on Public Policy). Voyages, Traffiques, and Discoveries of the English Nation, 12 vols. (Glasgow: J. MacLehose and Sons , 1903), vol. 7, 282. Introduction 9 A. S. Keller, O. J. Lissitzyn, and F. J. Mann, Cre- 1 F. L. Oppenheim, International Law, ed. H. ation of Rights of Sovereignty Through Symbolic Lauterpacht, 8th ed. (London: Longmans, Green, Acts 1400–1800 (New York: Columbia University 1955), vol. 1, 546. Press, 1938), esp. 148–51. 2 A. S. Hershey, The Essentials of International 10 C.C.A. Gosch, ed., Danish Arctic Expeditions 1605 to Public Law and Organization, rev. ed. (New York: 1620 (London: Hakluyt Society, 1897), vol. II, 15, Macmillan, 1935), 285. 19, 23, 83. 3 F.A.F. von der Heydte, “Discovery, Symbolic 11 Hakluyt, Principal Navigations, vol. VII, 326. Annexation and Virtual Effectiveness in Inter- 12 W. Ellis, An Authentic Narrative of a Voyage national Law,” American Journal of International Performed by Captain Cook and Captain Clerke Law 29, no. 3 (July 1935): 448–71. (London: Robinson et al., 1783), vol. 1, 262–63. 4 American Journal of International Law, Supple- 13 Thomas Simpson,Narrative of the Discoveries on ment, 3, no. 1 (January 1909): 7–25; also British the North Coast of America … etc. (London: R. and Foreign State Papers 1884–1885, vol. 76, Bentley, 1843), 8, 153. 4–20. 14 Arctic Papers, vol. 2, no. 97 (7 March 1851), 33. 5 Editor’s Note: This conclusion, which some readers might consider dismissive of Aboriginal rights, is 15 Treaties and Conventions Between Great Britain contentious today in light of s. 35 of the Canada and Foreign Powers, vol. 3, 362–66. Act (1982), which enshrines Aboriginal and treaty 16 C. F. Hall, Life with the Esquimaux (London: S. rights; comprehensive land claim settlement Low, Son, and Marston, 1864), vol. 2, 111, 118, 119. agreements; and international declarations such 17 George Chalmers, ed., A Collection of Treaties 5 Statutes of Great Britain, 31–32 Vict., c. 105 Between Great Britain and Other Powers (Lon- (Rupert’s Land Act, 31 July 1868). don, 1790), vol. 1, 340–90. 6 Joint Addresses of 16–17 December 1867, and 18 Chalmers, A Collection of Treaties, vol. 1, 467– 29–31 May 1869. See Statutes of Canada, 35 Vict. 94 (The Peace of Paris). (1872), lxvii–lxxvii. 19 Statutes of Great Britain, 1–2 Geo. IV, c. 66, 2 7 Deed of Surrender, 19 November 1869. See in ibid., July 1821. lxxvii–lxxxiii. 380 20 Chester Martin, “The Royal Charter,”The Beaver, 8 Imperial Order in Council, 23 June 1870. See in Outfit 276 (June 1945), 26. ibid., lxiii–lxvii. 21 On whaling in the North American Arctic, see 9 Statutes of Canada, 33 Vict., c. 3 (Manitoba Act, A. P. Low, The Cruise of the Neptune 1903–04 (Ot- 12 May 1870). tawa: Government Printing Bureau, 1906), 248–82, 10 Report from the Select Committee on the Hudson’s which gives a good deal of information about Bay Company, with Proceedings, Minutes of whaling in Hudson Bay and Davis Strait during Evidence, Appendix, and Index (July–August the nineteenth century and up to 1904. See also 1857), 46. B. Lubbock, The Arctic Whalers (Glasgow: Brown, Son, and Ferguson, 1937 and 1955); and for an 11 Statutes of Great Britain, 34–35 Vict., c. 28 (British earlier classic, W. Scoresby, An Account of The North America Act, 29 June 1871). Editor’s note: Arctic Regions and of the Whale-Fishery, 2 vols. Smith did not refer to indigenous rights, focusing (Edinburgh: Constable and Co., 1820). Editor’s his attention on international questions related note: Smith noted that “Missionary activity in to sovereignty. Accordingly, he does not engage the North, of little importance here, was divided issues related to the Métis Resistance around among Moravians on the northern Labrador coast Red River in 1869 and subsequent developments. and Anglicans and Roman Catholics elsewhere For general overviews of the historiography, see in the northern mainland; but prior to the 1870s J. R. Miller, “From Riel to the Metis,” Canadian none of these sects had any permanent missions in Historical Review 69 (1988): 1–20, and Brad Milne, the archipelago.” “The Historiography of Métis Land Dispersal,” Manitoba History 30 (Autumn 1995). Scholars have also produced an extensive body of literature 1 | The Transfers of Arctic Territories on First Nations land rights and the numbered treaties. The best general survey is J. R. Miller, 1 Gordon W. Smith, “Sovereignty in the North: The Compact, Contract, Covenant: Aboriginal Treaty- Canadian Aspect of an International Problem,” in Making in Canada (Toronto: University of The Arctic Frontier, ed. R. St. J. Macdonald (Toron- Toronto Press, 2009). to: University of Toronto Press, 1966), 194–255, 12 National Archives, Kew, United Kingdom esp. 198–204. I have tried here to summarize brief- [hereafter NA], Colonial Office Papers, Series ly the background of the two transfers and the No. 42 [hereafter CO 42], vol. 734, 419. Harvey to most vital details about them.
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