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Native Claims in Rupert's Land and the North-Western Territory: Canada's Constitutional Obligations

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Native Claims in Rupert's Land and the North-Western Territory: Canada's Constitutional Obligations NATIVE CLAIMS IN RUPERT'S LAND AND THE NORTH-WESTERN TERRITORY: CANADA'S CONSTITUTIONAL OBLIGATIONS Kent McNeil Studies in Aboriginal Rights No.5 University of Saskatchewan Native Law Centre 1982 Canadian Cataloguing in Publication Data TABLE OF CONTENTS McNeil, Kent, 1945- Native claims in Rupert's Land and the North-Western Territory Acknowledgement (Studies in aboriginal rights, ISSN I INTRODUCTION ................................................................ 0226-3491 ; 5) II HISTORICAL BACKGROUND......................................... .... 2 ISBN 0-88880-118-1 III EVENTS LEADING UP TO THE ADMISSION OF RUPERT'S 1. Indians of North America - Northwest, LAND AND THE NORTH-WESTERN TERRITORY INTO Canadian - Land tenure. 2. Northwest, Canadian - CANADA ............................................................................. 6 Annexation to Canada. 3. Canada - Constitutional law. I. University of Saskatchewan. Native Law IV TERMS AND CONDITIONS OF THE TRANSFER................. 9 Centre. II. Title. III. Series. KE7739.L3M3 343.71'025 C82-091167-4 V INTERPRETATION OF THE TERMS AND CONDITIONS .... 13 A. The 1867 Address and the "Equitable Principles'" Condition ...................................................................... 13 B. Term 14 of the Rupert's Land Order.. ............................... 21 C. Canada's Duty to Protect the Indian Tribes ....................... 25 VI STATUS OF THE RUPERT'S LAND ORDER PRIOR TO THE ENACTMENT OF THE CONSTITUTION ACT, 1982 ............. 27 VII EFFECT OF THE CONSTITUTION ACT, 1982 ...................... 32 VIII CONCLUSION ..... : ................................................................36 ACKNOWLEDGEMENT I am grateful tQ Donald J. Purich, Brian Slattery and Norman Zlotkin for patiently reading the original draft of this monograph and making helpful suggestions. My special thanks go to Bennett McCardle for her extensive comments. I would also like to thank the Indian Association of Alberta for the financial assistance which it provided to the University of Saskatchewan Native Law Centre to fund this project. I. INTRODUCTION The final step in the evolution of Canada from colony to sovereign and independent state was taken on Aprii 17, 1982, with the signing of the Con­ stitution Act, 1982. I While the consequences for Canadian society generally of patriation of the Constitution and inclusion of a Charter oj Rights and Freedoms are not to be underestimated, the effect on the aboriginal peoples of Canada could be much greater. This is because these peoples are the original inhabitants of this country and as such they have special rights in Canadian law. 2 These rights originate in the common law doctrine ofl aboriginal title. They have been recognized by a variety of documents, in­ cluding the Royal Proclamation oj 1763,3 the treaties and the Natural Resources Transfer Agreements.· One such document is the Rupert's Land and North- Western Territory OrderS (hereinafter referred to as the Rupert's Land Order), an Imperial Order in Council dated June 23, 1870, which \ transferred the two territories in question to Canada. That Order recoK~J nized the existence of aboriginal land claims in Rupert's Land and the North-Western Territory, and placed a constitutional obligation on the Canadian government to settle those claims. The purpose of this monograph is to examine the nature and extent of that obligation, and the potential effect on it of the Constitution Act, 1982. 1 Canada Act 1982, c.Il (U.K.), Schedule B. 2 See Kenneth Lysyk, "The Unique Constitutional Position of the Canadian In­ dian" (1967),45 C.B.R. 513. 3 R.S.C. 1970, App.II, No.1. 4 Between the government of Canada and the governments of Manitoba, Alberta and Saskatchewan. The three agreements were approved by the Constitution Act, 1930 (formerly the British North America Act, 1930), 20 & 21 Geo. V, c.26 (U .K.) (R.S.C. 1970, App.II, No.25), and are contained in the schedule of that Act. s R.S.C. 1970, App.II, No.9. Historical Background 3 of the Hudson watershed from Rupert's Land. The remaining territory would nonetheless be extensive, embracing portions of present-day Quebec, Ontario, Manitoba, Saskatchewan, and possibly Alberta, as well as the eastern Northwest Territories. After 1763 the Hudson's Bay Company's claim to the entire Hudson watershed was challenged vigorously by rival traders from Montreal, who combined in the ~s to form the North-West Company. The violent com­ II. HISTORICAL BACKGROUND petition ended in 1821 when the two companies settled their differences and were granted a joint trading license by the Imperial Crown embracing "Rupert's Land" was the name given to the vast territory granted to ... all such parts of North America to the northward and the westward of the Hudson's Bay Company by the Royal Charter of May 2, 1670. 6 The the lands and territories belonging to the United States of America as shall Charter gave the Company proprietary rights, exclusive trading privileges, not form part of any of our provinces in North America, or of any lands and limited governmental powers over or territories belonging to the said United States of America, or to any ... all the Landes and Territoryes upon the Countryes Coastes and con­ European government, state or power. 9 fynes of the Seas Bayes Lakes Rivers Creekes and Soundes aforesaid [that This license apparently covered the British territory adjacent to Rupert's is, "that lye within the entrance of the Streightes commonly called Hud­ Land which came to be known as the North-Western Territory. sons Streightes"] that are not already actually possessed by or granted to In 1838 a new 21-year license 'o covering the same territory was issued to any of our Subjectes or possessed by the Subjectes of any other Christian the Hudson's Bay Company, which in the meantime had acquired all the Prince or State ....7 rights and interests of the North-West Company. When this license expired Doubts have been raised with respect to the validity of this grant. For on May 30, 1859, the Hudson's Bay Company continued to exercise instance, the authority of Charles II to confer such extensive rights on a jurisdiction in the N orth-West under the purported authority of the Charter . private trading company has been questioned. Furthermore, the extent of up to 1869-70, at which time it surrendered its rights and privileges in the territory covered by the vague wording of the Charter has never been Rupert's Land back to the Crown. During the period from 1821 to 1870, determined. The Hudson's Bay Company claimed in the nineteenth century challenges to the validity of the Charter and the Company's interpretation that Rupert's Land included the entire Hudson drainage basin, but this of the extent of the grant nonetheless continued to be mounted, first by the claim was never accepted by the Company's rivals in the region. In a Metis people of the Red River Settlement" and then by the province of monograph entitled Native Rights and the Boundaries of Rupert's Land Canada. 12 These issues remained unsettled in 1867 when the creation of the and the North- Western Territory,8 the writer suggests a possible solution to this unresolved question. Briefly, that study concludes that any territory 9 Parliamentary Papers, House oj Commons (U.K.), No.547 of 1842, p.22 within the Hudson watershed that was possessed by France prior to the ces­ (hereinafter cited as P.P., H.C.). The license was issued under the authority of sion of Canada to Great Britain in 1763 must be excluded from Rupert's An Act jor regulating the Fur Trade, and establishing a Criminal and Civil Land. Before the cession the Hudson's Bay Company's occupation of the Jurisdiction within certain Parts oj North America (1821), 1 & 2 Geo. IV, c.66 territory had been largely confined to the coastline of Hudson Bay. The (U.K.). 10 Printed in P.P., H.C., No.547 of 1842, p.9. French, on the other hand, had penetrated the interior and established a II Notably at the time of the trial of Pierre Guillaume Sayer by the Hudson's Bay number of fur-trading posts in what is now Western Canada, stretching Company's General Quarterly Court on a charge of trading furs without a from Lake Superior at least to the junction of the North and South Saskat­ license: see D. Gibson and L. Gibson, Substantial Justice (Winnipeg: Peguis chewan rivers. An approach to the boundary question which takes French Publishers, 1972), pp.1l5-7 and R.S.G. Stubbs, Four Recorders ojRupert's Land possession prior to 1763 into account would therefore eliminate a large area (Winnipeg: Peguis Publishers, 1967), pp.26-30. 12 At the time of and following the 1857 inquiry of the Select Committee of the House of Commons (U.K.) into the affairs of the Hudson's Bay Company: see a May 6,1857, letter and enclosed memorandum from Chief Justice Draper to Co­ 6 The Charter is reproduced in E.E. Rich, ed., Minutes oj the Hudson's Bay Com­ lonial Secretary Labouchere, a paper relative to the Canadian Boundaries pany 1671-1674, vol.V of Hudson's Bay Company Series (Toronto: The delivered to the British Select Committee by the Chief Justice on behalf of Champlain Society, 1942), pp.131-48, and Brian Slattery, The Land Rights oj In­ Canada on May 28, 1857, and the First Report of the Select Committee of the digenous Canadian Peoples (Saskatoon: University of Saskatchewan Native Law Canadian Legislature on the Rights of the Hudson's Bay Company, dated June 8, Centre, 1979), pp.371-88. 1857, reproduced as appendices 5, 6 and 8 of the British Select Committee's 7 Rich, supra, n.6, p.139; Slattery, supra, n.6, p.379. Report (at pp.374, 378 and 385 respectively). The Report may be found in P.P., • Kent McNeil (Saskatoon: University of Saskatchewan Native Law Centre, 1982).
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