T-1350-75
William Smith (Plaintiff)
v.
Attorney General of Canada (Defendant)
Trial Division, Mahoney J.—Vancouver, October
25; Ottawa, November 4, 1977.
Crown — Territorial extent of Canada — Yukon Territory
— Submission that Yukon not ceded by Crown to Canada, and
not part of Canada — Authority to construct Dempster High
way given in name of Queen in right of Canada — Whether or
not Yukon properly ceded — Whether or not Queen's personal
fiat required to authorize highway construction — Treaty of
Paris, 1763 — The Royal Proclamation, October 7, 1763
[R.S.C. 1970, Appendix II, p. 123] — The British North
America Act, 1867, 30 & 31 Vict., c. 3, s. 196 (U.K.) [R.S.C.
1970, Appendix II, p. 191] — Rupert's Land Act, 1868, 31 &
32 Vict., c. 105, ss. 2, 5 (U.K.) [R.S.C. 1970, Appendix II, p.
239] — Order in Council, June 23, 1870 [R.S.C. 1970, Appen
dix II, p. 257] — Order in Council, July 31, 1880 [R.S.C.
1970, Appendix II, p. 301].
The plaintiff challenges the validity of actions, taken in the
name of the Queen in right of Canada, to construct the
Dempster Highway, projected from Dawson City to Fort
McPherson. Plaintiff's thesis is that a considerable area of what
is commonly accepted as part of Canada, is not, in fact, part of
Canada and that authority for the project crossing that area
must be derived from the Queen's personal fiat.
Held, the action is dismissed. Whether acquired by conquest
or settlement, the land presently comprised within the Yukon
Territory was acquired by the Crown in right of Great Britain,
not by King George III or any of his successors in a personal or
private right. If the Yukon Territory was not comprised in the
North-western Territories, which is not proved, nor in Rupert's
Land, which, on the evidence, it was not, then it was included in
the territory annexed to Canada by Order in Council of July
31, 1880. Although that Order in Council was not authorized
by section 146 of the B.N.A. Act, there was no express statu
tory authority to bar it and the Crown in right of Great Britain
did have the capacity to effect a cession of territory without
legislative authority.
Sikyea v. The Queen (1964) 43 D.L.R. (2d) 150, [1964]
S.C.R. 642, applied. Campbell v. Hall (1774) 98 E.R.
1045, applied. Gordhan v. Kanji (1875-76) 1 App. Cas.
332, applied.
ACTION.
COUNSEL:
W. Smith on his own behalf.
J. R. Haig for defendant.
SOLICITORS:
William Smith, Old Crow, Y.T., on his own
behalf.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The plaintiff challenges the valid
ity of actions taken in the name of Her Majesty
the Queen in right of Canada to construct the
Dempster Highway. That highway is presently
under construction and, when complete, will run
from a southerly terminus at Dawson City, Yukon
Territory, in a generally northeasterly direction, to
a northerly terminus at Fort McPherson, North
west Territories. The plaintiff's thesis is that a
considerable area of what is commonly accepted as
part of Canada is not, in fact, part of Canada.
Included in that area is the land traversed by the
Dempster Highway.
Evidence adduced and argument presented by
the plaintiff at the trial did not expand upon what
was alleged in the application by which these
proceedings were commenced and the affidavit
filed in support thereof. His case may be fairly
summarized as follows: (1) the land in question
was, by the Treaty of Paris, 1763, surrendered by
the King of France, Louis XV, to the King of
Great Britain, George III;' (2) the land so surren
dered became the domain of the British Monarch
in his personal capacity and remains the personal
domain of Her Majesty the Queen, as successor to
King George III, never having been conveyed by
King George III or any of his successors to the
Crown in right of Canada and (3) that, according
ly, actions taken in respect of it by those acting in
the name and by the authority of the Crown in
right of Canada, rather than in the name and by
... Moreover, his Most Christian Majesty cedes and
guaranties to his said Britannick Majesty, in full right, Canada,
with all its dependencies, as well as the island of Cape Breton,
and all the other islands and coasts in the gulph and river of St.
Lawrence, and in general, every thing that depends on the said
countries, lands, islands and coasts, with the sovereignty, prop
erty, possession, and all rights acquired by treaty, or otherwise,
which the Most Christian King and the Crown of France have
had till now over the said countries, lands, islands, places,
coasts and their inhabitants ... .
the authority of Her Majesty personally, are ille
gal actions. Alternatively, the same result, that is
to say the requirement of the personal authoriza
tion of Her Majesty, is said to follow from provi
sions of The Royal Proclamation of October 7,
1763 2 , which, if it contemplated the Yukon Terri
tory at all, certainly contemplated that the follow
ing provision apply to lands within it:
And We do hereby strictly forbid, on Pain of our Displeas
ure, all our loving Subjects from ... taking Possession of any of
the Lands above reserved, without our especial leave and
Licence for that Purpose first obtained.
The defendant admits that all actions taken to
construct the Dempster Highway have been taken
in the name and by authority of Her Majesty in
right of Canada and that a personal fiat for the
particular purpose was neither sought nor received.
I am by no means satisfied that any part of what
is today the Yukon Territory was, in fact, within
the contemplation of either the Treaty of Paris or
The Royal Proclamation. The evidence fails utter
ly to establish that it was and it would appear to
follow from Sikyea v. The Queen 3 , which dealt
with the westerly part of the Northwest Territo
ries, that it was not. In delivering judgment for the
Supreme Court of Canada in that case, Hall J.
said:
On the substantive question involved, I agree with the rea
sons for judgment and with the conclusions of Johnson J.A. in
the Court of Appeal. He has dealt with the important issues
fully and correctly in their historical and legal settings, and
there is nothing which I can usefully add to what he has
written.
For the Court of Appeal, Johnson J.A. had held: 4
The Indians inhabiting Hudson Bay Company lands were
excluded from the benefit of the Proclamation, and it is doubt
ful, to say the least, if the Indians of at least the western part of
the Northwest Territories could claim any rights under the
Proclamation, for these lands at the time were terra incognita
and lay to the north and not "to the westward of the Sources of
the Rivers which fall into the Sea from the West and North
West" (from the 1763 Proclamation describing the area to
which the Proclamation applied).
The "Sea" above referred to was, in its context,
plainly the Atlantic Ocean. If it was terra incog-
nita in so far as The Royal Proclamation was
2 Vide R.S.C. 1970, Appendix II, p. 123 at p. 127.
3 [1964] S.C.R. 642 at 646.
4 (1964) 43 D.L.R. (2d) 150 at 152.
concerned, today's Yukon Territory could not have
been otherwise in so far as the Treaty of Paris was
concerned.
However, be all that as it may, the basic propo
sition that the reigning monarch's relationship to
overseas territorial acquisitions was in a private,
rather than an official, capacity during and after
the eighteenth century is unsupportable. If one
accepts that the land in question was ceded by the
Treaty of Paris then it plainly was acquired by
conquest. That being so, among the propositions
which Lord Mansfield held, in 1774, to be "too
clear to be controverted", the following is particu
larly pertinent: 5
A country conquered by the British arms becomes a domin
ion of the King in the right of his Crown; and, therefore,
necessarily subject to the Legislature, the Parliament of Great
Britain.
If it was not so ceded, it follows that the Yukon
Territory was acquired by settlement sometime
after the signing of the Treaty of Paris. The
general legal consequences of such an acquisition
were established in 1722. 6
... it was said by the Master of the Rolls to have been
determined by the Lords of the privy council, upon an appeal to
the King in council from the foreign plantations,
1st, That if there be a new and uninhabited country found
out by English subjects, as the law is the birthright of every
subject, so, wherever they go, they carry their laws with them,
and therefore such new found country is to be governed by the
laws of England; though after such country is inhabited by the
English, acts of parliament made in England, without naming
the foreign plantations, will not bind them; ... .
If, as appears most probable, the land now within
the Yukon Territory became British by settlement,
it was at a time when the Monarch did not, by the
law of England, exercise sovereignty over England
in the personal or private, as opposed to institu
tional, capacity which the plaintiff seeks to ascribe
to the Crown's sovereignty over the territory in
issue.
5 Campbell v. Hall (1774) 98 E.R. 1045 at 1047.
6 Case 15—Anonymous (1722) 24 E.R. 646.
Whether acquired by conquest or settlement, the
land presently comprised within the Yukon Terri
tory was acquired by the Crown in right of Great
Britain not by King George III or one of his
successors in any personal or private right. The
evidence does not establish just when that acquisi
tion occurred. It is, however, sufficient to find that
British sovereignty over what is now the Yukon
Territory was asserted and recognized internation
ally not later than February 28, 1825. On that
date, the boundary between British and Russian
America was established by treaty. What remains
to be determined is whether that sovereignty was
later transferred to the Crown in right of Canada.
The political entity now called Canada was
created by The British North America Act, 1867.'
By section 3 of that Act, it was provided that:
... the Provinces of Canada, Nova Scotia, and New Brunswick
shall form and be One Dominion under the Name of Canada;
Its geographic extent was limited to what is pres
ently the Provinces of Nova Scotia and New
Brunswick and parts of the present Provinces of
Quebec and Ontario. The Act provided for the
addition of other British colonies to Canada
including, inter alia, Rupert's Land and the
North-western Territory.
146. It shall be lawful for the Queen, by and with the Advice
of Her Majesty's Most Honourable Privy Council, ... and on
Address from the Houses of the Parliament of Canada to admit
Rupert's Land and the North-western Territory, or either of
them, into the Union ... and the Provisions of any Order in
Council in that Behalf shall have effect as if they had been
enacted by the Parliament of the United Kingdom of Great
Britain and Ireland.
Rupert's Land was the name of the territory
specified in the Letters Patent, dated May 2, 1670,
whereby King Charles II incorporated the Hud-
son's Bay Company. Nothing of the present Yukon
Territory lay within Rupert's Land as defined in
the Letters Patent; however, to provide for the
Crown in right of Great Britain to accept the
surrender of Rupert's Land so that its admission to
Canada might be effected as provided in section
146, the British Parliament enacted the Rupert's
7 30 & 31 Vict., c. 3 (U.K.) [see R.S.C. 1970, Appendix II,
p. 191].
Land Act, 1868 8 . It provided, in part, as follows:
2. For the Purposes of this Act the Term "Rupert's Land"
shall include the whole of the Lands and Territories held or
claimed to be held by the [Hudson's Bay Company].
5. It shall be competent to Her Majesty by any such Order
or Orders in Council as aforesaid, on Address from the Houses
of the Parliament of Canada, to declare that Rupert's Land
shall, from a date to be therein mentioned, be admitted into
and become part of the Dominion of Canada.... 9
By Order in Council dated June 23, 1870, Ru-
pert's Land and the North-western Territory were,
effective July 15, 1870, ordered to "be admitted
into and become part of the Dominion of
Canada". '° Both the Rupert's Land Act and sec
tion 146 of the B.N.A. Act were recited as au
thority for the Order in Council.
I have no evidence upon which to make a find
ing as to what the term "North-western Territory"
meant during the years 1867 to 1870, inclusive. I
have no basis upon which to conclude that it was a
distinct or defined geographic entity much less, if
so, upon which to define it. Rupert's Land, as
described by the Letters Patent, was a definite
geographic entity. Its extent, as defined by the
Rupert's Land Act, is much less amenable to
definition embracing, as it does, lands claimed, as
well as held, by the Hudson's Bay Company.
There is considerable evidence drawn from the
Company's archives before the Court as to its
claims and activities in the present day Yukon
Territory and beyond into Alaska during the first
half of the nineteenth century. The post at Fort
McPherson, established in 1839, controlled trade
on the Peel River upstream of the McKenzie. As
to the Porcupine River basin, Lapierre's House,
established on the Bell River in 1842 and Fort
8 31 & 32 Vict., c. 105 (U.K.) [see R.S.C. 1970, Appendix
II, p. 239].
9 The "such Order or Orders in Council" referred to in
section 5, are defined in section 3 which authorized acceptance
of surrender of the Hudson's Bay Company's lands, etc. by Her
Majesty only on certain conditions including that it be null and
void unless within a month of acceptance, an Order in Council
issue as contemplated by section 146 of the B.N.A. Act.
10 Vide R.S.C. 1970, Appendix II, p. 257, at p. 258.
Yukon, established at the junction of the Porcu
pine and Yukon Rivers in 1848, respectively inter
cepted its upstream and downstream trade. Fort
Yukon was, in fact, some 120 miles inside Alaska
and was, after the American purchase from
Russia, abandoned in 1870. The surrender by the
Company to the Crown that preceded the Order in
Council of June 23, 1870, reserved ten acres of
land at Lapierre's House, now in the Yukon
Territory."
From 1821 until 1859, the Hudson's Bay Com
pany, then amalgamated with the North West
Company, held a licence giving it exclusive right to
the fur trade in British North America, other than
Rupert's Land, which it enjoyed otherwise; the
provinces of Canada and territory west of the
Rocky Mountains. The licensed territory included
the present day Yukon and the licence carried with
it responsibilities for the administration of justice
in the licensed territory, all pursuant to statute. 12
It is said that the prevailing economic philosophy
in Britain and political trends in Canada were not
conducive to continuation of such a trading
monopoly or delegation of political author
ity beyond 1859. It does seem that, as a practical
result of the absence in much of the territory of
either trading competition or the apparatus of
government, the lapse of the licence did not
immediately alter the Company's de facto position
in the territory.
It is, however, one thing to enjoy an exclusive
trading licence carrying an obligation to adminis
ter justice over a given territory and quite another
to hold that territory or, with any colour of right,
to claim to hold it. On the evidence, I conclude
that no part of the Yukon Territory, with the
possible exception of lands immediately adjacent
Lapierre's House, was within the contemplation of
Vide R.S.C. 1970, Appendix II, p. 277.
12 An Act for regulating the Fur Trade, and establishing a
Criminal and Civil Jurisdiction within certain Parts of North
America, 1 & 2 Geo. IV, c. 66 (U.K.).
the definition of Rupert's Land set forth in section
2 of the Rupert's Land Act.
On July 31, 1880, in response to an address of
the Houses of Parliament of Canada, Queen Vic-
toria, by Order in Council, ordered and declared: 13
From and after the first day of September, 1880, all British
Territories and Possessions in North America, not already
included within the Dominion of Canada, and all Islands
adjacent to any such Territories or Possessions, shall (with the
exception of the Colony of Newfoundland and its dependencies)
become and be annexed to and form part of the said Dominion
of Canada; and become and be subject to the laws for the time
being in force in the said Dominion, in so far as such laws may
be applicable thereto.
Plainly, if the Yukon Territory was not comprised
in the North-western Territories, which is not
proved, nor in Rupert's Land, which, on the evi
dence, it was not, then it was included in the
territory annexed to Canada by that Order in
Council. 14 Similarly, if it was comprised in neither
the North-western Territory nor Rupert's Land,
that Order in Council was not authorized by sec
tion 146 of the B.N.A. Act. No other statutory au
thority from which derived the power to make that
Order in Council was cited to me. Neither, I must
add, was any express statutory bar to making it
cited. The plaintiff argues that, in the absence of
statutory authority, the Order in Council of July
31, 1880, was of no effect.
In Gordhan v. Kanji' 5 , the Judicial Committee
of the Privy Council entertained an appeal from a
decision of the High Court of Bombay based on
that Court's finding that the Governor General of
India in Council had, by Order in Council made
January 29, 1866, without legislative author
ity, ceded certain British territory to the Thakoor
of Bhownuggur, an independent sovereign. The
ratio decidendi of the High Court, and their Lord
13 Vide R.S.C. 1970, Appendix II, p. 301 at p. 302.
14 The colonies of British Columbia, in 1871, and Prince
Edward Island, in 1873, had been admitted to the Union by
Imperial Orders in Council authorized by provisions of s. 146 of
the B.N.A. Act which I have not found it necessary to recite.
15 (1875-76) 1 App. Cas. 332 at 373 ff.
ships' view of it, are concisely stated in the follow
ing passage from the Privy Council decision:
... the Judges of the High Court held that it was beyond the
power of the British Crown, without the concurrence of the
Imperial Parliament, to make any cession of territory within
the jurisdiction of the British Courts in India, in time of peace,
to a foreign power; and on that ground they made the order ...
now under appeal,.... The question, whether the law thus laid
down by the High Court of Bombay is correct, was fully and
ably argued ... and their Lordships would have been prepared
to express the opinion, which they might have formed upon it,
if, in the result of the case, it had become necessary to do so.
But having arrived at the conclusion that the present appeal
ought to fail without reference to that question, they think it
sufficient to state that they entertain such grave doubts (to say
no more) of the soundness of the general and abstract doctrine
laid down by the High Court of Bombay, as to be unable to
advise Her Majesty to rest her decision on that ground.
Their Lordships went on to dismiss the appeal on a
finding that what had in fact occurred had not
been a cession of territory.
The Order in Council of July 31, 1880, effected,
plainly and unequivocally, a cession of territory by
the Crown in right of Great Britain. That it was
not, in the ordinary concepts of the day, to a
foreign power is immaterial. The issue is the
capacity of the Crown in right of Great Britain in
1880 to effect the cession by Order in Council
without express legislative authority. Nothing that
transpired between January, 1866, and July, 1880,
has been brought to my attention that would lead
me to any other conclusion but that it still had the
capacity at the latter date.
While I have not heretofore referred specifically
to the portion of the Northwest Territories trav
ersed by the Dempster Highway, I am satisfied
that the identical considerations pertain to it as I
have found to pertain to the Yukon Territory. I am
entirely satisfied that the Yukon Territory general
ly, and the lands traversed by the Dempster High
way in both the Yukon and Northwest Territories
in particular, have been validly ceded to Canada
by the Crown in right of Great Britain, if not by
the Order in Council of June 23, 1870, then
certainly by the Order in Council of July 31, 1880.
It follows that actions since taken in respect there
of in the name and by the authority of the Crown
in right of Canada are not illegal by reason of their
not having been taken in the name and by au
thority either of Her Majesty personally or the
Crown in right of Great Britain.
The plaintiff's action fails and will be dismissed
with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.