Native Rights and the Boundaries of Rupert's Land and the North-Western Territory

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

Most people in Canada are aware of the fact that there is and has been for some years conflict between Quebec and Newfoundland over the Labrador boundary. Perhaps what is not so generally known is the potential for dispute concerning the boundary between Rupert’s Land, now Manitoba, and the Northwest Territories should that area eventually become a province. The problem has its roots in the fact that Rupert’s Land was surrendered to Canada on terms differing from those affecting the cession of the Territories, with the concomitant result that the rights of the aboriginal peoples in the two areas are not identical, so that in ascertaining the status of each group there is the initial question of determining where the particular group resides. This problem already applies to the Bloods, who people the area on both sides of the Alberta-Manitoba border.

In his monograph on Native Rights and the Boundaries of Rupert’s Land and the North-Western Territory, published by the Native Law Centre of the University of Saskatchewan, Kent McNeil seeks to explain the difference and the importance of that difference. He points out that by the Royal Proclamation of 1763 the territory belonging to the Hudson’s Bay Company was expressly excluded, so that the Proclamation has no validity insofar as Rupert’s Land is concerned, and native claims there must as a result depend, in the absence of treaty, on aboriginal rights, whatever they may be. In the case of the Territory, however, the problem of Indian claims is to “be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in dealing with the aborigines.” It may be argued, however, that since all the territories within the sovereign authority of the British Crown may be considered as belonging to the Crown, with subjects enjoying only such rights as the Crown, either by way of prerogative or assent to legislation, confers upon them, the difference in rights as to the two groups does not really amount to anything very significant. In strict law, the rights of the aboriginal peoples depend upon the discretion and the grace of the Crown in its capacity as the Crown, that is to say the Government, of Canada.

If McNeil’s contentions are correct and the rights of the aboriginal people in Manitoba and the Territory do in fact depend on the boundaries of Rupert’s Land and the Territory, the problem is even more complex than might have appeared. He argues that the “most satisfactory starting point for determining the boundaries of Rupert’s Land is the Hudson watershed.” From this, however, he states that we must exclude that part of the basin which is in Ontario, as decided in the Ontario Boundaries Case and as determined by the Canada (Ontario Boundary) Act, 1889, and possibly also that part which falls within Quebec by the Quebec Boundary Act of 1898. He then draws attention to other manifest difficulties in determining the actual boundary, vis-à-vis the Territory, such territory as was French before 1763, the international boundary, the boundary of British Columbia, and the boundary with Alaska. After taking all this into consideration, one must unfortunately conclude that on this basis the problem of the status of the aboriginal population in Rupert’s Land and in the Territory is so complex as to be settled only if and when there is a general all-Canadian settlement of aboriginal status and land claims.