HISTORY OF CANADIAN PUBLIC LANDS AND PUBLIC LAND LAW--AND KEY DEPARTURES FROM AND REFLECTIONS OF U.S. POLICY PATHS
| Jurisdiction | United States |
University of Calgary Faculty of Law
2500 University Dr. N.W.
Calgary, AB T2N 1N4
Canada
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I. Introduction
Ancient philosopher Aristotle (384 B.C. - 322 B.C.) said "If you would understand anything, observe its beginning and its development." Nothing could be truer of the public lands in western North America. If we are to understand what they are and why they are as they are, we must observe their beginning and development.
Public lands are owned and managed by the government. Scholars and students of history and law in the United States are blessed with countless texts on and accounts of the acquisition, development, disposition, and evolution of public lands in the western United States. Prominently standing out among them is Federal Public Lands and Resources Law,1 now in its sixth edition. There is no general legal text on the history and development of western Canadian public lands, although, as this article shows, their history and development are similar to that of the western United States. This article takes a step towards filling that gap, paying particular attention to the Prairie Provinces, Manitoba, Saskatchewan, and Alberta, in western Canada, drawing comparisons to the creation and history of the public lands and public land law in the American West.2
The public lands of Canada consist of the lands and resources that are government property that the federal or provincial government owns in some sense, on behalf of the public. The lands and resources that constitute the public domain cannot be studied and appreciated in isolation. They are part of the rich history of the development of Canada. In order to
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appreciate what has remained or was claimed or added to Crown/public ownership, one needs to view the larger context. This involves looking back to when the lands were acquired and colonized, and observing how indigenous peoples' use of and rights to the lands were ignored, recognized, or diminished. It requires reviewing the conflicts over which European nation would rule and shape the lands, seeing how Aboriginal rights and interests were reflected or neglected in the conflicts, and looking at the impacts of skirmishes over borders. Through these observations one sees how Canada could have been very different from what it is. It could have been primarily or all French culture based, or contained independent Aboriginal nations, or simply been part of the United States. The Prairie Provinces and their natural resources could have remained under federal ownership and jurisdiction rather than being transferred by the federal government to them in 1930. Canada and its provinces and territories are what they are because of how Canada developed. Through this journey one sees that Canada's regions, languages, natural and surveyed landscapes, customs, peoples and populations, resources and economic development structures, and public domain and resources are a result of its past.
Part II of this article takes a brief journey through the history of the development of Canada focusing on key events. It begins with a description of the rich and diverse history of Indigenous Canada, pre-European contact. It then traces European exploration and colonization and their impact on applicable law. The article considers how the French and Indian War resulted in primarily a British land, and how Aboriginal support of the French in that war was influential towards the Royal Proclamation of 1783, which recognized Aboriginal title, and the need for treaties to extinguish title if European settlement was to proceed. Part II ends with the War of 1812 between the United States and Great Britain. Although the war resulted in little change in the status quo, it could have resulted in an independent Aboriginal territory buffering the U.S. and Canada or an American takeover of Canada.
Part III begins with Canadian Confederation in 1867 and highlights the expansion of the country through the acquisition of Rupert's Land from the Hudson's Bay Company in 1869, and facilitation of immigration to this area and economic development with the building of the cross-country Canadian Pacific Railway in 1879-1885. It looks at another independent Aboriginal territory that could have been within Canada, namely a territory under the jurisdiction of the Métis, in the context of a discussion of the Red River and North West Rebellions. It then shows how, similar to the U.S. federal government treatment of western states, the Canadian Dominion held back public lands and resources from the Prairie Provinces upon confederation--Manitoba (1870) Alberta (1905), and Saskatchewan (1905). It also discusses dissimilarities to the western U.S. states, noting how these provinces eventually won back their public lands and resources
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by 1930. Part III shows how constructions of the nature of Aboriginal autonomy and title have shaped the nature and potential development of public lands.
Part IV starts with the cutting up of the public domain to facilitate new settlement and provide for land grants to finance expansion and development. It discusses early division of public lands in the Canadian east, pre-Confederation, and the more orderly survey grid in the west. It looks at how the combination of land grants and the setting aside of homestead and other lands have resulted in a land ownership chequerboard, not dissimilar to the western U.S. land ownership checkerboard. This section ends with discussion of how the federal Canadian Dominion departed from the western U.S. "hands-off" model of public land and resource management during the western frontier days. It shows how, in contrast to the western United States, the Dominion regulated some natural resources rights and uses early on in the times of settlement. The Dominion regulated public rangeland use by developing a grazing lease system in the 1881, and introduced a regulated water rights system based on first in time, first in right in 1894. Thus Canada, in contrast to its southern neighbor, avoided grazing resource conflicts and a tragedy of the grazing commons, and precluded common law development of prior appropriation water rights. Part V concludes the article.
II. The Making of Canada and Its Public Domain - A Historical Overview
a) Indigenous Canada - Pre-European Contact
There are competing theories on the origins of the first humans to make their homes in North America.3 A prominent one is that the first humans migrated from Asia, likely by way of the Bering land bridge across the Bering Strait. The crossing was made on foot during periods when intensification of the ice ages lowered the sea level, transforming the Bering Strait into a grassy and boggy steppe called Beringia.4 "It is generally thought that this migration took place over a now-submerged land bridge from Siberia to Alaska sometime between about 20,000 and 35,000 years ago ...."5 It was a time when much of the land was
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blanketed in massive continental glaciers and vast meltwater lakes.6 The theory is that ice age migrants moved steadily southward, passing through an ice-free corridor lying between the massive northeastern Laurentide Ice Sheet and the cordilleran glaciers that covered most of the coast mountain ranges and large sections of the Rocky Mountains.7
Other theories of the origins of the first humans to occupy North America, rather than envisioning waves of big game hunters pushing down an ice-free corridor, favour arrival by sea. These estimates of arrival time include a range of between 14,000 and 30,000 years ago, when melting glaciers raised the sea level several hundred feet.8 A leading account proposes that hunter-gatherers island-hopped along the Pacific Coast with the aid of hide boats. Such voyagers could have reached the coast of the South American continent as far south as present-day Chile even before they penetrated far into the interior of the Americas.9 A more controversial theory is the Solutrean hypothesis, which postulates that the ancestors of at least some of the aboriginal inhabitants of North America were from the Solutrean culture of the coastal regions of southwestern Europe. The hypothesis suggests that during the last great glacial period, sometime between 25,000 and 13,000 years ago, Solutrean peoples exploited the resources of the ice-edge environment across the North Atlantic, eventually arriving in North America.10 There are also different aboriginal accounts of the initial human occupation of the North American continent. These views sometimes hold that the indigenous peoples have always been in the Americas, attributing their origin to the land itself or to its original animal inhabitants. Such accounts do not find support in contemporary archeological research, but neither do they seek it. They are not anthropological theories, but rather testaments to the traditional and deep-felt attachment of the Aboriginal peoples to the land.11
Whatever theory tracks the truth about the peopling of the Americas, the similarity of these first indigenous peoples' archaeological remains over an enormous area nonetheless suggests that they must have spread
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quite rapidly throughout North America.12 Evidence for the presence of Ice Age hunters during this time period comes in the form of fluted stone tools, especially the points of their lances. Most of the oldest sites are in the southwestern region of the United States, with a major early site near Clovis, New Mexico, from which the culture takes its name. Apparently Clovis culture was well established across the continent perhaps by as early as 13,000 years ago.13 Although the so-called "Clovis First Model" has...
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