Public Lands and Natural Resources: Early History

• Author: Elaine L. Hughes, Arlene J. Kwasniak, Alastair R. Lucas
• Pages: 9-26

9

CHAPTER 1

PUBLIC LANDS AND

NATURAL RESOURCES:

EARLY HISTORY

Arlene J Kwasniak

A. INTRODUCTION

Ancient philosopher Aristotle (384 BC–322 BC) said, “If you would un-

derstand anything, observe its beginning and its development.” Noth ing

could be truer of the public lands and resources of Canada. If we are to

understand what they are and why they a re as they are, we must observe

their beginning and development.

Public lands and resource s are owned and managed by the government.

Scholars and students of histor y 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 Re-

sources Law,1 now in its seventh edition. This book, Public Lands and

Resources Law in Canada, is the f‌irst general legal text on the history,

development, issues, policies, and laws governing public lands in Can-

ada, though the authors relied on countless sources in researching and

writing it. Chapters 1 and 2 explore what public lands are, and how

they came into being in Canada. This exploration involves a journey

from pre-recorded history to current times. The chapters touch on all

1 George Coggin s et al, Federal Public Lands and Reso urces Law, 7th ed(New York:

Foundation Pres s, 2014).

PUBLIC LANDS AND RESOURCES LAW IN CA NADA10

of Canada, although in parts focus on the Prairie provinces, Manitoba,

Saskatchewan, and Alberta, in western Canada.2

The public lands of Canada consist of the lands and resources that

are property owned by the federal or provincial governments, in some

sense, on behalf of the public. The lands and resources that constitute

the public domain cannot be studied and appreci ated i n isolation. They

are part of the rich history of the development of Canada. In order to

appreciate what has remained or was claimed or added to Crown/pub-

lic ownership, one needs to view the larger context. This involves look-

ing back to when the lands were acquired a nd coloni zed, and observing

how Indigenous peoples’ use of and rights to the lands were ignored or

recognized. 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 (what is now) Canada could have been very different from

what it is. It could have been primarily or all French-culture based, or

have contained independent Aboriginal nations, or simply been part

of the United States. The public lands and natural resources of the

Prairie provinces could have remained under federal ownership and

jurisdiction rather than being transferred by the federal government to

those provinces 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 land-

scapes, customs, peoples, populations, resources, economic develop-

ment structures, and public domain are the results of its past.

Part B of this chapter 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 coloniza-

2 Portions of the res earch and writing for Ch apters 1 and 2 were developed into

a larger comparat ive law and policy article, A rlene Kwa sniak, “History of Ca na-

dian Public L ands and Public Land La w, and Key De partures from and Ref‌lec-

tions on U.S. Policy Paths” (2013) 50:1 Rocky Mountain Mineral Law Founda tion

Journal 5. These two chapters in tur n incorporate, mostly verbat im, much

of the RMMLF artic le. The author thanks the Rock y Mountain Mineral Law

Foundation and the Found ation for Legal Research for res earch grants for thes e

chapters, and t he book generally. The author also than ks University of Calgar y

law students A ndrew Barbero for his rese arch on the key stages of the his tory

of Canada and M ark Graham for his resea rch on Upper Canada and Indige nous

Canada, pre-Eur opean contact. As well, the aut hor thanks Professor Eme ritus

Allen Carls on (University of Alberta) for his c areful and thoughtful rev iew and

comments on the author ’s contributions to this book .