Public Lands and Natural Resources: Early History

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

9

CHA PTER 1

PUBLIC LANDS AND

NATUR AL R ESOURCES:

EARLY HISTORY

Arlene J Kwasniak

A. INTRODUC TION

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

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

could be truer of the public lands and re sources 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 text s on and accounts of the acquisition, development,

disposition, and evolution of public lands in the wester n 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 Ca nada. This exploration involves a journey

from pre-recorded history to current time s. 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 A ND RESOURCES LAW IN CA NADA10

of Canada, although in parts focus on the Prairie provi nces, Manitoba,

Saskatchewan, and Alber ta, in western Canad a.2

The public lands of Canada consist of the lands and resources th at

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

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

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

are part of the rich hi story of the development of Canada. In order to

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

lic ownership, one needs to view the larger context. Thi s 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 Europea n

nation would rule and shape the lands, seeing how Aboriginal right s

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 primari ly or all French-culture based, or

have contained independent Aborigin al nations, or simply been part

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

Prairie province s could have remained under federal ownership and

jurisdiction rather t han 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 Canad a’s regions, languages, natural and sur veyed land-

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

ment structures, and public domain are t he 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 .