Canadian History, Week One:
Kent McNeil, “Sovereignty and the Aboriginal Nations of Rupert’s Land,” Manitoba History 37 (1999): 2-8.
Kent McNeil addresses a problem raised by the Delgamuukw decision of 1997 in which the Supreme Court of Canada stated that affirming Aboriginal title was dependant on demonstrating that a nation making a claim to such title occupied the land at the time the Crown acquired sovereignty. In light of this decision, McNeil argues, establishing the date of British and Canadian acquisition of sovereignty over territory in North America, and the extent of that territory, are key to formulating approaches to Aboriginal land claims.
To make his point, McNeil focuses on the case of Rupert’s Land. He notes that the problem, with assuming that British acquisition of Rupert’s Land occurred in 1670, is that the peoples inhabiting territory at that time were not necessarily co-extensive with the peoples inhabiting the same territory and signing treaties with Canada approximately two hundred years later. If, on the one hand, this puts First Nations at a distinct disadvantage with respect to arguing claims because their status would appear to be disallowed, on the other, McNeil argues, Canada’s assumption of sovereignty can be shown to be equally unsupportable. He bases his argument on analyses of the Hudson’s Bay Company charter of 1670, from which he concludes that the charter did not represent an immediate grant of land, but rather a grant to pursue the acquisition of lands by occupation or purchase from inhabitants, with the understanding that ultimate sovereignty of lands thus acquired would fall to the British Crown. The point that he regards to be important is that the Hudson’s Bay Company had never fully occupied nor purchased all of the lands in Rupert’s Land when entitlement was transferred to Canada in 1870. In McNeil’s view, the difficulties raised by this circumstance can be circumvented if the assumption is adopted that Crown sovereignty over specific territory was only acquired at the date that a specific treaty was entered into.
McNeil’s argument is interesting. However, if, as he asserts, “[W]here the rights of the Aboriginal peoples of Canada are concerned, history and law are inseparable,” I find it odd that he does not examine the history of title to Rupert’s Land under international law beyond the temporal boundary set by the single year 1670. Precedent set in other parts of North America, including in those territories first acquired by France, is mentioned by McNeil only to be ignored. More curious however, is the lack of any mention of formally codified and legally sanctioned assertions of territorial sovereignty in North America that were arrived at between 1670 and 1870. Examinations of particular relevance, that it seems to me may well have informed early Canadian understandings and positions on sovereignty with respect to acquiring territory, defining inhabitants, and dealing with them, would include the Paris Peace Treaty of 1783, the Jay Treaty of 1794, the Treaty of Ghent in 1814, the Boundary Conventions of 1815 and 1818 between the United States and Britain, and the Oregon Treaty (formally titled the Treaty with Great Britain, in Regard to Limits Westward of the Rocky Mountains), of 1846. There are others.
Just as questions of “sovereignty, boundaries and the like” — as McNeil avows — “cannot be answered solely from the perspective of one discipline” (meaning, in this case either the discipline of law or history) neither, I would submit, can such questions be resolved without taking the concern with temporality that is central to the discipline of history into account. A study of history that is divested of an awareness of historical process is historiography lacking the perspective that is the discipline’s distinguishing feature.
 For additional examples of treaties see, Lillian Goldman Law Library, Yale Law School, “The Avalon Project, Documents in Law, History and Diplomacy: British-American Diplomacy,” http://bit.ly/sOBkw (2008).