Why Cananda Exists Today Our True Legal Roots


The Governor and Company of Adventurers of England Trading into Hudson’s Bay was incorporated on 2 May 1670, with a royal charter from King Charles II. The charter granted the company a monopoly over the region drained by all rivers and streams flowing into Hudson Bay in northern Canada. The area was called Rupert’s Land after Prince Rupert, the first governor of the company appointed by the King. This region, the drainage basin of Hudson Bay, constitutes 1.5 million square miles (3.9×10^6 km2), comprises over one-third the area of modern day Canada and stretches into the north central United States. The specific boundaries were unknown at the time. Rupert’s Land would eventually be Canada’s largest land purchase in the 1800s.

During the fall and winter, First Nations and trappers did the vast majority of the animal trapping and pelt preparation. They travelled by canoe and on foot, to the fort to sell their pelts

The early coastal factory model contrasted with the system of the French, who established an extensive system of inland posts and sent traders to live among the tribes of the region. In March 1686, the French sent a raiding party under the Chevalier des Troyes over 1,300 km (810 mi) to capture the company’s posts along James Bay. The French appointed Pierre Le Moyne d’Iberville, who had shown great heroism during the raids, as commander of the company’s captured posts. In 1687 an English attempt to resettle Fort Albany failed due to ruses and deceptions by d’Iberville. After 1688 England and France were officially at war. D’Iberville raided Fort Severn in 1690 but did not attempt to raid the well-defended local headquarters at York Factory. In 1693 the company recovered Fort Albany; d’Iberville captured York Factory in 1694, but the company recovered it the next year. In 1697, d’Iberville again commanded a French naval raid on York Factory. On the way to the fort, he defeated three ships of the Royal Navy in the Battle of Hudson’s Bay, the largest naval battle in the history of the North American Arctic. D’Iberville’s depleted French force captured York Factory by a ruse; they laid siege to the fort while pretending to be a much larger army, the French held all of the outposts except Fort Albany until 1713. (Fort Albany was again unsuccessfully attacked in 1709 by a small French and Indian force.) The economic consequences of the French possession to the company were significant; it did not pay any dividends for more than 20 years. See Anglo-French conflicts on Hudson Bay.

The war ended in 1713 with the signing of the Treaty of Utrecht. Among its many provisions, the Treaty required France to relinquish all claims to Hudson Bay, which again became a British possession The Kingdom of Great Britain had been established (following the union of Scotland and England in 1707). After the treaty, the company built Prince of Wales Fort, a stone star fort at the mouth of the nearby Churchill River. In 1782, during the American Revolutionary War, a French squadron under Jean-François de Galaup, comte de Lapérouse captured and demolished York Factory and Prince of Wales Fort.

A parallel may be drawn between the HBC’s control over Rupert’s Land with the trade monopoly and government functions enjoyed by the Honourable East India Company over India during roughly the same period. Viewed as a major competitor, the HBC invested £10,000 in the East India Company in 1732.

Hudson’s Bay Company’s first inland trading post was established by Samuel Hearne in 1774 in Cumberland House, Saskatchewan.

In 1779, the North West Company (NWC) was founded in Montreal as a seasonal partnership to provide more capital and to continue competing with the HBC. It became operative for the outfit of 1780 and was the first joint stock company in Canada and possibly North America. The agreement lasted one year. A second agreement established in 1780 had a three-year term. The company became a permanent entity in 1783. By 1784, the NWC had begun to have a serious impact on the HBC’s profits.

In 1821, the North West Company of Montreal and Hudson’s Bay Company were forcibly merged by intervention of the British government to put an end to often-violent competition. A total of 175 posts, 68 of them the HBC’s, were reduced to 52 for efficiency and because many were redundant as a result of the rivalry and were inherently unprofitable. Their combined territory was extended by a license to the North-Western Territory, which reached to the Arctic Ocean in the north and, with the creation of the Columbia Department in the Pacific Northwest, to the Pacific Ocean in the west. The NWC’s regional headquarters at Fort George (Fort Astoria) was relocated to Fort Vancouver, which became the HBC base of operations on the Pacific Slope.

Although the HBC maintained a monopoly on the fur trade during the early to mid-19th century there was competition from James Sinclair and Andrew McDermot (Dermott), independent traders in the Red River Colony. They shipped furs by the Red River Trails to Norman Kittsona buyer in the United States. In addition, Americans controlled the Maritime fur trade on the Northwest Coast until the 1830s.

Throughout the 1820s and 1830s, the HBC controlled nearly all trading operations in the Pacific Northwest, based at the company headquarters at Fort Vancouver on the Columbia River. Although claims to the region were by agreement in abeyance, commercial operating rights were nominally shared by the United States and Britain through the Anglo-American Convention of 1818, company policy, enforced via Chief Factor John McLoughlin of the company’s Columbia District, was to discourage U.S. settlement of the territory.

In 1869, after rejecting the American government offer of CA$10,000,000, the company approved the return of Rupert’s Land to Britain which in turn gave it to Canada and loaned the new country the £300,000 required to compensate HBC for its losses. The deal, known as The Deed of Surrender, came into force the following year. The resulting territory, now known as the Northwest Territories, was brought under Canadian jurisdiction under the terms of the Rupert’s Land Act 1868, enacted by the Parliament of the United Kingdom. The Deed enabled the admission of the fifth province, Manitoba, to the Confederation on 15 July 1870, the very same day that the deed itself came into force.

The Constitution Act, 1867(originally enacted as the British North America Act, 1867, and referred to as the BNA Act), is a major part of Canada’s Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. The British North America Acts, including this Act, were renamed in 1982 with the patriation of the Constitution (originally enacted by the British Parliament); however, it is still known by its original name in United Kingdom records. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.

The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain’s acquisition of French territory in North America after the end of the French and Indian War/Seven Years’ War, in which it forbade all settlers from settling past a line drawn along the Appalachian Mountains. The purpose of the proclamation was to organize Great Britain’s new North American empire and to stabilize relations with Native North Americans through regulation of trade, settlement, and land purchases on the western frontier. The Royal Proclamation continues to be of legal importance to First Nations in Canada and is significant for the variation of indigenous status in the United States. It eventually ensured that British culture and laws were applied in Upper Canada after 1791, which was done to attract British settlers to the province. Its geographic location is similar to the Eastern Continental Divide’s path running northwards from Georgia to the Pennsylvania-New York State border, and north-eastwards past the drainage divide on the “St. Lawrence Divide” from there northwards through New England.

One of the biggest problems confronting the British Empire in 1763 was controlling land speculators in both Europe and the British colonies whose activities often led to frontier conflict. Some Native American peoples—primarily in the Great Lakes region—had a long and close relationship with France, and were dismayed to find that they were now under British sovereignty. Pontiac’s Rebellion (1763–66) was an unsuccessful effort by Native Americans to prevent Great Britain from occupying the land previously claimed by France. The Proclamation of 1763 had been in the works before Pontiac’s Rebellion, but the outbreak of the conflict hastened the process. British officials hoped the proclamation would reconcile Aboriginals to British rule and thus help to prevent future hostilities.

The proclamation created a boundary line (often called the proclamation line) between the British colonies on the Atlantic coast and American Indian lands (called the Indian Reserve) west of the Appalachian Mountains. The proclamation line was not intended to be a permanent boundary between white and Aboriginal lands, but rather a temporary boundary which could be extended further west in an orderly, lawful manner.  Its contour was defined by the headwaters that formed the watershed along the Appalachia—all land with rivers that flowed into the Atlantic was designated for the colonial entities while all the land with rivers that flowed into the Mississippi was reserved for the native Indian population. The proclamation outlawed private purchase of Native American land, which had often created problems in the past; instead, all future land purchases were to be made by Crown officials “at some public Meeting or Assembly of the said Indians”. Furthermore, British colonists were forbidden to move beyond the line and settle on native lands, and colonial officials were forbidden to grant grounds or lands without royal approval. The proclamation gave the Crown a monopoly on all future land purchases from American Indians.

The Royal Proclamation continued to govern the cession of Indigenous land in British North America, especially Upper Canada and Rupert’s Land. The proclamation forms the basis of land claims of Indigenous peoples in Canada – First Nations, Inuit, and Métis. The Royal Proclamation of 1763 is thus mentioned in section 25 of the Canadian Charter of Rights and Freedoms.

According to historian Colin Calloway, “[settler] scholars disagree on whether the proclamation recognized or undermined tribal sovereignty”.

The proclamation established the important precedent that the indigenous population had certain rights to the lands they occupied.

Some see the Royal Proclamation of 1763 as a “fundamental document” for First Nations land claims and self-government. It is “the first legal recognition by the British Crown of Aboriginal rights” and imposes a fiduciary duty of care on the Crown. The intent and promises made to the native in the Proclamation have been argued to be of a temporary nature, only meant to appease the Native peoples who were becoming increasingly resentful of “settler encroachments on their lands” and were capable of becoming a serious threat to British colonial settlement. An advice given by a merchant to the Board of Trade on August 30, 1764 expressed that:

“The Indians all know we cannot be a Match for them in the midst of an extensive woody Country…from whence I infer that if we are determined to possess Our Posts, Trade & ca securely, it cannot be done for a Century by any other means than that of purchasing the favour of the numerous Indian inhabitants.”

Some historians claim that “the British were trying to convince Native people that there was nothing to fear from the colonists, while at the same time trying to increase political and economic power relative to First Nations and other European powers.”However, the Royal Proclamation along with the subsequent Treaty of Niagara, provide for an argument that “discredits the claims of the Crown to exercise sovereignty over First Nations” and affirms Aboriginal “powers of self-determination in, among other things, allocating lands.” Further so, the Royal Proclamation outlined a policy in which to protect Aboriginal rights and in doing so, recognized these rights existed.

The Royal Proclamation of 1763 established the British definition of Indian Country. On these lands the Crown claimed sovereignty but it also decreed that Indian Country were to be considered the possession of the Aboriginal peoples who lived on these lands. Consequently, in order to transfer ownership of the land to the Crown through the surrendering of the land from the indigenous peoples, Great Britain began formalizing the Treaty of Fort Niagara with the First Nations on July 8, 1764, through this Treaty Council. In protest, the Ottawa of Detroit, the Wyandot of Sandusky, and the Lenape and Shawnee of the Ohio failed to come to the Treaty Council. This treaty created a new Covenant Chain between Britain and the First Nations of the western Great Lakes. During the War of 1812, Nations involved with this treaty allied themselves with the British, as the Nations believed the treaty bound them to the British cause.

Some historians argue that even though the boundary was pushed west in subsequent treaties, the British government refused to permit new colonial settlements for fear of instigating a war with Native Americans, which angered colonial land speculators. Others argue that the Royal Proclamation imposed a fiduciary duty of care on the Crown.

Suffice to say, the British via the Proclamation, conceded ownership of the land to the Native community in order to take it back one slice at time through treaties, purchases and agreements. It has been said that the British were the most honest thieves in the history of the world.

After the Seven Years’ War, a victorious Great Britain and a defeated France formalized the peace with the 1763 Treaty of Paris. Under the terms of the treaty, the Kingdom of France ceded New France to Britain, choosing instead to keep the islands of Guadeloupe and Martinique for their valuable sugar production. New France (Canada) was considered less valuable, as its only significant commercial product at the time was beaver pelts. The territory found along the St. Lawrence River, called Canada by the French, was renamed Quebec by the British, after its capital city. Non-military administration of the territories acquired by the British in the war was defined in the Royal Proclamation of 1763.

Under the terms of the peace treaty, Canadians who did not choose to leave became British subjects. In order for them to serve in public offices, they were required to swear an oath to the King that contained specific provisions rejecting the Catholic faith. Since many of the predominantly Roman Catholic Canadians were unwilling to take such an oath, this effectively prevented large numbers of French Canadians from participating in the local governments.

With unrest growing in the colonies to the south, which would one day grow into the American Revolution, the British were worried that the French Canadians might also support the growing rebellion. At that time, French Canadians formed the vast majority of the settler population of the province of Quebec (more than 99%) and there was little immigration from Great Britain. There was a need to compromise between the conflicting demands of the French-Canadian subjects and those of newly arrived British subjects. These efforts by the colonial governors eventually resulted in the enactment of the Quebec Act of 1774. The net result was that Quebec should be divided into two separate provinces and the laws involving property and civil rights  should be written to follow those laws of England ultimately accomplished with the Constitution Act of 1792.

The Quebec Act of 1774, formally known as the British North America (Quebec) Act 1774, was an act of the Parliament of Great Britain (citation 14 Geo. III c. 83) setting procedures of governance in the Province of Quebec.

The Act’s principal components were:

  • The province’s territory was expanded to take over part of the Indian Reserve, including much of what is now southern Ontario, Illinois, Indiana, Michigan, Ohio, Wisconsin, and parts of Minnesota.
  • Reference to the Protestant faith was removed from the oath of allegiance.
  • It guaranteed free practice of the Catholic faith.
  • It restored the use of the French civil law for matters of private law, except that in accordance with the English common law, it granted unlimited freedom of testation. It maintained English common law for matters of public law, including administrative appeals, court procedure, and criminal prosecution.
  • It restored the Catholic Church’s right to impose tithes.

The 1774 Act had wide-ranging effects, in Quebec itself, as well as in the Thirteen Colonies. In Quebec, English-speaking immigrants from Britain and the southern colonies objected to a variety of its provisions, which they saw as a removal of certain political freedoms. French Canadians varied in their reaction; the land-owning seigniors and ecclesiastics were generally happy with its provisions although the populace resented their loss of liberties.

In the Thirteen Colonies, the Quebec Act, which had been passed in the same session of Parliament as a number of other acts designed as punishment for the Boston Tea Party and other protests, was passed along with the other Intolerable Acts, also known as the Coercive Acts. The provisions of the Quebec Act were seen by the colonists as a new model for British colonial administration, which would strip the colonies of their elected assemblies. It seemed to void the land claims of the colonies by granting most of the Ohio Country to the province of Quebec. The Americans were especially angry that the Act established Catholicism as the state religion in Quebec. The Americans had fought hard in the French and Indian War, and now they were angry that the losers (the French in Quebec) were given all the rewards including western lands claimed by the 13 colonies.

The Quebec Act was never enforced outside the traditional boundaries of Quebec. Its main significance in the Thirteen Colonies was that it angered the Patriots, and dismayed the Loyalists who supported the Crown, and helped to accelerate the confrontation that became the American Revolution (Miller 1943). The Act is listed as one of the rebels’ grievances in the Declaration of Independence as one of the “Acts of pretended Legislation …

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies”

The First Continental Congress petitioned Parliament to repeal the Intolerable Acts, which Parliament declined to do. Instead, in February 1775 Parliament passed the Conciliatory Resolution in an attempt to curry favor with the angry colonists. This was too little, too late, as the war broke out before news of its passage could reach the colonies.

In Quebec the 1774 Act was effectively superseded by the Constitutional Act of 1791, which partitioned Quebec into two new provinces, Upper and Lower Canada.

As time progressed the French and the English living in the Province of Quebec, were constantly at odds and threatened the overall success of development and growth. To counter this, the creation of the Constitution of 1792 established the Provinces of of Upper and Lower Canada.

The Constitution of 1792 was created to divide Canada into two separate provinces and introduced English Law pertaining to “property and civil rights” and attempted to resolve outstanding issues between the two races.

It also supported the already granted and patented property rights under section nine of the act:

“ IX. Provided always, that nothing in this act contained shall extend, or be construed to extend, to any lands that have been granted by his Majesty, or shall hereafter be granted by his Majesty, his heirs and successors to be holden free in common soccage.”

A Definition of free and common socage:

“ Freehold tenure is without any incidents or obligations for the benefit of the Crown. All lands granted by the Crown in fee simple are granted in free and common socage – freehold tenure.

A fee simple may be transferred without licence or fine and the new owner holds from the Crown in the same manner as the previous tenant held from the Crown.”

In 1839, the Imperial Parliament chose to re-unite Upper and Lower Canada into one province under the direction of Lord Durham, in an effort to resolve the differences between the English and the French residents. The differences ranged from control of revenue and supplies etc which resulted in rebellion.

The Union Act of 1840 appointed Lord Durham as Governor-General, who was mandated to find methods to amend the Constitution and create an environment of cooperation between the two factions.

Subsequent to the passing of the Union Act a Municipal was created in 1841.

The United Province of Canada, or Province of Canada, or the United Canadas was a British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham in the Report on the Affairs of British North America following the Rebellions of 1837–1838.

The Act of Union 1840, passed July 23, 1840, by the British Parliament and proclaimed by the Crown on February 10, 1841, merged the two Colonies by abolishing the Parliaments of Upper and Lower Canada and replacing them with a single one with two houses, a Legislative Council as the upper chamber and the Legislative Assembly as the lower chamber. In the aftermath of the Rebellions of 1837–1838, unification of the two Canadas was driven by two factors. Firstly, Upper Canada was near bankruptcy due to a lack of stable tax revenues, and needed the resources of the more populous Lower Canada to fund its internal transportation improvements. And secondly, unification was an attempt to swamp the French vote by giving each of the former provinces the same number of parliamentary seats, despite the larger population of Lower Canada. Although Durham’s report had called for both the Union of the Canadas and Responsible Government (i.e., an independent local legislature), only the first was implemented. The new government was to be led by an appointed Governor General accountable only to the British Crown and the King’s Ministers. Responsible Government was not to be achieved until the second LaFontaine-Baldwin ministry in 1849.

The Province of Canada ceased to exist at Canadian Confederation on July 1, 1867, when it was redivided into the Canadian provinces of Ontario and Quebec. From 1791 to 1841, the territory roughly corresponding to modern-day Southern Ontario in Canada belonged to the British colony of the Upper Canada, while Labrador and the southern portion of modern-day Quebec belonged to the colony of the Province of Lower Canada (until 1809, when Labrador was transferred to the Colony of Newfoundland). Upper Canada was primarily “Anglophone” (English-speaking), whereas Lower Canada was primarily “Francophone” (French-speaking).

However, in 1848 the Earl of Elgin, the then Governor General, appointed a Cabinet nominated by the majority party of the Legislative Assembly, the Baldwin-Lafontaine coalition that had won elections in January. Lord Elgin upheld the principles of responsible government by not repealing the Rebellion Losses Bill, which was highly unpopular with some English-speaking Loyalists who favored imperial over majority rule.

As Canada East and Canada West each held 42 seats in the Legislative Assembly, there was legislative deadlock between English (mainly from Canada West) and French (mainly from Canada East). Initially, the majority of the province was French, which demanded “rep-by-pop” (representation by population), which the Anglophones opposed.

The granting of responsible government to the colony is typically attributed to reforms in 1848 (principally the effective transfer of control over patronage from the Governor to the elected ministry). These reforms resulted in the appointment of the second Baldwin-Lafontaine government that quickly removed many of the disabilities on French-Canadian political participation in the colony.

Once the English population, rapidly growing through immigration, exceeded the French, the English demanded rep-by-pop. In the end, the legislative deadlock between English and French led to a movement for a federal union which resulted in the broader Canadian Confederation in 1867.

In my next chapter we will review the British North America Act, 1867 (BNA) and discover the effect of it and the BNA 1982 Act along with the evolving legislations and how they effect your property rights.

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