RESEARCHING AND ASSERTING ABORIGINAL RIGHTS IN RUPERT’S LAND JOHN STEWART MURDOCH Bachelor of Education, University of Saskatchewan, 1978 Master of Education, University of Manitoba, 1981 Doctor of Philosophy, University of Manitoba 1986 A Thesis Submitted to the School of Graduate Studies of the University of Lethbridge in Partial Fulfillment of the Requirements for the Degree MASTER OF ARTS Department of Native American Studies University of Lethbridge LETHBRIDGE, ALBERTA, CANADA December, 2007 © John Stewart Murdoch 2007 ACKNOWLEDGEMENTS Without supervision appropriate to the Aboriginal world in which this thesis study’s innovations are to be applied, and without access to relevant legal expertise, achieving the aims of this study would have proven impossible. This author is very grateful to Leroy Little Bear for that supervision throughout this study. His timely comments and suggestions allowed the author to explore and innovate to a greater degree than would have been otherwise possible. Exploration and innovation, have throughout this study been prerequisite to accommodating an Aboriginal cognitive style and an Aboriginal customary legal style. Not only did this author benefit from Little Bear’s generosity, he also gained access to his peers. This author acknowledges the kind and advice of Kent McNeil, James Youngblood Henderson, John Borrows, Brian Slattery, and Mark Walters. Given the surprising discoveries of this study and their likely impact, the objectivity of my thesis study committee members, Shawn Bubel and Steve Ferzacca, in requiring pertinent and probative evidence within an appropriate framework, was essential to achieving the aims of this study. This author is also much indebted to Kathy Schrage for her patient support and rescue services when they were needed. Being at the University of Lethbridge meant being far from home, Waskaganish, northern Quebec. That was prevented from being a significant obstacle by good friends such as Lois and Harley Frank and their family, Rodney Big Bull, Adrian and Leslie Stimson, Delray Wodsworth, Ray and Mary Amato, and the late Joan Ryan. This thesis would neither have been as interesting or possible without the moral support this author has enjoyed from his wife Gerti, along with five sons and daughters, plus ten grandchildren. This author’s motivations to both take on this challenge and to complete it were very much motivated by a desire to make them proud. m ABSTRACT It was the realization that certain legal, economic and political questions, unresolved, frustrate, even prevent satisfying lives in the relatively small world of Waskaganish that motivated this thesis study about protecting the liberties of the Aboriginal inhabitants of what was formerly called Rupert’s Land. This author was well aware that such liberties have not enjoyed the kind and level of protection that is normal elsewhere in Canada from arbitrary use of authority. But, this author believed and is now assured that this is an error that can be corrected within the current Canadian legal and political system. Investigating the assurances granted to the inhabitants of Rupert’s Land at the time of annexation produced a solemn and binding promise made by the Canadian House of Commons and Senate to Her Majesty’s Government of Great Britain. That promise was entrenched in Canada’s first constitution, itself a British statute. In the form of proclamations, orders-in-council, published documents and sworn testimony, this study uncovered the proof of such assurances, their content and their survival. Moreover, these forms of proof are all admissible in the fact-finding of Canadian courts as ‘so notorious as to not require any further proof. The ressurection and revival of these assurances is fundamentally important to achieving any education or socio-cultural goal. Equally important is the need to understand why and how these assurances have been so long suppressed. In addition, this author needed to explore the convergence possible between the command order of the Canadian state and the customary order of the Aboriginal inhabitants of Rupert’s Land. Such convergence is prerequisite to restoring the relative equilibrium that characterized two centuries of a bijural relationship between the Hudson’s Bay Company and Aboriginal First Nations. Finally, the author illustrates and corroborates such a bijural approach in the example of training, apprenticeship and recognition of competence within common, provincialy certified trades. IV FORWARD Don’t ask what is right or wrong... These questions are very dangerous... Right is only the goodness you carry in your heart, love for your ancestors, for your family. Wrong is what comes between you and that love. (Advice of father to daughter, Le Ly Fong, a Vietnamese woman in 1970s, war tom Viet Nam, in an autobiographical movie, Heaven and Earth. 1989) This author has relied on this piece of wisdom during a life where there have been often conflicting standards for right or wrong. This author would add, that any uncertainty of one’s family or ancestors could be compensated for by the love of lifelong friends. Although fine examples of parents and grandparents were readily available, it was at times challenging when negotiating more than one world, to know what a man should do in a new and challenging situation. On October 22, 2007, the author lost a dear friend of almost forty years. Stephen Ratt of Wemindji died suddenly while recovering from a year of illness. Only a day earlier, the author had made plans to fly up the east coast of James Bay to visit him in order, as he had done many times before, pick Stephen’s brains, this time on efforts that had arisen from this thesis study. Since first meeting in 1970, the author had valued Stephen’s kind words, good humour and reliable advice. Stephen will be missed, but tliis author will always know what Stephen would advise in any situation as easily as remembering the melody and words of a favourite song. v TABLE OF CONTENTS Approval ii Acknowledgements iii Abstract iv Foreword v Table of Contents vi CHAPTER ONE: INTRODUCTION Statement of Problem 1 Aim of This Study 11 Orientation of this Study in Relation to Relevant Literature 11 Law 11 History 13 Anthropology 14 Economics 15 Limitations of This Study 16 Methodology 16 Organization of This Study 17 CHAPTER TWO: RUPERT’S LAND RIGHTS History and International Function of the Rule of Law 20 British Imperial Tradition 22 British Imperial Tradition in Colonial Canada 23 The Rule of Law in the History of Rupert’s Land 24 The End of Hudson’s Bay Company Rule of Rupert’s Land 26 Her Majesty’s Terms 29 A Fumbled Transition 34 CHAPTER THREE: THE TIDE OF HISTORY Meaning of the Tide of History 43 Historical Suppression of Rupert’s Land Rights 51 Tide of History Reliant on the Legislature 54 Tide of History Reliant on the Court 63 Conclusion 71 CHAPTER FOUR: A CANADIAN CONSTITUTION PARADIGM - ORIGINS 74 British Tradition of Parliamentary Supremacy 74 Federal Tradition of Dividing Powers 77 Colonial Tradition of Imperial Supervision 84 vi CHAPTER FIVE: A CANADIAN CONSTITUTION PARADIGM - CREATING REMEDIES Liberal Tradition 100 Command and Spontaneous Order 102 Statute, Common Law and Custom 105 Legal Foundations of Custom 109 CHAPTER SIX: TRAINING, APPRENTICESHIP & CERTIFICATION IN A RECOGNIZED TRADE Basis of Sovereignty in Rupert’s Land 113 Growth of Illiberal Democracy in Eastern Rupert’s Land 116 Effect of Related Provincial Statutes, Regulations and Policies 118 Training, Apprenticeship and Certification by Custom 121 From Principles to Practice 123 Operational Information 124 Judicial Review and Reference 125 Ownership, Administration and Use of Resources 125 CHAPTER SEVEN: CONCLUSION What Has Been Learned 129 Implications for Further Research 130 FIGURES Figure 1 - Map of Rupert’s Land 16 Figure 2 - Establishing Character with Similar Facts 70 APPENDICES A - Indian & Northern Affairs Staff 132 B - Content of Individual Freedoms Protected by Charter 134 C - British Parliamentary Debate, June 1, 1869 135 D - Royal Proclamation December 6, 1869, Wolseley’s Proclamation 1870 152 E - Indian & Northern Affairs Chronology 155 F - Definition of a Jew 158 G - Lord Mansfield’s Six Principles 160 H - Nomads in Canadian Courts 163 I - Macdonald - Granville Correspondence on Judicial Review 174 J - Facts on Indirect Rule 176 K - Continuity of the Legal Rights of Every Aboriginal Individual 177 L - Connolly v. Woolrich [1867], 11 L.C. Jur. 197 179 Vll M - Boards, Commissions and Committees 181 N - Delegation of Federal Powers to Provincial Governments 183 O - Quebec Youth Protection Act - Excerpts 185 P - Quebec Commission des Droits de la Personne et des Droits de la Jeunesse 188 Q - Gandhi’s ‘The Violence Family Tree’ 191 TABLES Court Cases Cited 192 Statutes, Orders-in-Council, Proclamations, etc. 194 BIBLIOGRAPHY 195 ABRE VIATION S BNA Act British North America Act, 1867 CNA Cree Naskapi Act, 1984 CLVA Colonial Laws Validity Act, 1865 RL&NWTO Rupert’s Land & North-Western Territory Order, 1870 RP1763 Royal Proclamation, 1763 RP1869 Royal Proclamation, 1869 vm CHAPTER ONE INTRODUCTION Statement of Problem During the late summer and fall of 2003, this author began a long awaited opportunity to participate in delivering a secondary school education, organized to serve the needs and preferences of northern Algonquian Aboriginals. Almost three decades earlier, this author had completed a doctoral thesis in education and anthropology entitled, The Legacy of Dress-Up Creek: Formal Education for Northern Algonquian Hunters. For most of the intervening years, this author had worked with the Cree School Board, Cree Trapper’s Association, Crees of Waskaganish First Nation and other similar organizations of northern Quebec, developing programs to serve the same needs and preferences. From 1989 through 1990, this author had opportunities with Cree and Ojibwa adults from the northern parts of Manitoba, Ontario and Quebec to develop and implement training of three or four months duration, in tourism outfitting and traditional hunting and trapping.