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

L.C. Green is a university professor of political science and an
honorary professor of law at the University of Alberta.

The issue of aboriginal land claims in Canada has received additional significance with the enactment of the new Constitution and the Charter of Rights whereby aboriginal claims are given full recognition, even though doubt may still remain as to the exact nature and extent of the rights referred to. In the case of the Order transferring sovereignty over Rupert’s Land and the Northwestern Territory to Canada, express recognition of land claims appeared to have been conferred by the statement in the Order that the transfer was made in conformity with the terms and conditions in the 1867 Parliamentary Address proposing the transfer. In that Address there was an acknowledgement of the existence of aboriginal land claims and an undertaking that they would be settled “in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.”

Kent McNeil argues that both the Order and the Address must be read in the light of the 1763 Royal Proclamation concerning Indian rights and lands and seeks to read from this an absolute obligation upon the government to recognize the legal nature of the claim and of the Crown’s obligations arising thereunder. This, however, ignores the problems that arise in connection with any royal commitment to the subjects of the Crown and, to some extent, glosses over the very difficult question of the true legal character of the Proclamation. Moreover, it can be contended that the use of the term “equitable” merely confirms the completely discretionary character of the Crown’s actions in this connection.

In discussing the effect of the 1982 Constitution, the author suggests that the provision in the Order requiring settlement of the Indian land claims “amounts to a right or freedom that pertains to the aboriginal peoples” outside the over-riding competence in the Chanter of Rights — an arguable contention at least.

The problem of the land claims of the aboriginal peoples is perhaps one of the most complex in Canadian jurisprudence. To this the interplay of the Canadian Charter of Rights with existing legislation must now be added. McNeil’s small pamphlet seeking to analyse the status of native claims in Rupert’s Land and the North-Western Territory even before the adoption of the 1982 Constitution emphasises the complexity of this problem. His arguments on the effect of the new Constitution serve to reiterate that, by its adoption, many of our constitutional problems, far from being simplified or settled, have only become more complex.