Fantasies of Sovereignty: Deconstructing British and Canadian Claims to Ownership of the Historic North-West

IN THE SETTLER-COLONIAL CONSCIOUSNESS of the nineteenth century, the origin of Canadian sovereignty in the historic North-West¹ is the Hudson’s Bay Company’s transfer agreement with the Dominion of Canada in 1870. This transfer agreement was a vital step in Canada’s self-understanding as a nation a mari usque ad mare, from sea to sea. Negotiated in London under British law, the transfer paved the way for Canada to populate the region with its settlers and to act as the territory’s primary political authority. In exchange for transferring these rights, the Company was paid £300,000 and received a one-twentieth of the land of the “fertile belt” in this newly Canadian territory. All of this occurred without the involvement or consent of the Indigenous peoples who were still the numerical majority in the region. The transfer agreement presumed that British sovereignty could be asserted successfully through an act of imperial legislation half a world away, even if it conflicted with local proprietary claims. This claim reaffirmed the imperial logic of the day that Indigenous assertions of territoriality were secondary to European claims of sovereignty. Such a position has been roundly criticized,² but has never been fully deconstructed in its connection to claims of Canadian sovereignty in the historic North-West. The purpose of this article is to unpack this basic claim—that the Hudson’s Bay Company (HBC) possessed legitimate ownership of the North-West and could sell it to Canada in 1870 without the involvement of Indigenous peoples who lived there.

Contrary to the claims of European empires, Indigenous peoples in the North-West exercised more or less unconstrained political authority over most of their lands both before and after 1870. However, throughout the seventeenth, eighteenth, and nineteenth centuries, British and Canadian institutions mobilized a complex array of legal arguments to claim possession of huge expanses of territory they “discovered” but did not control. For the most part, Canadian political institutions have traced their ownership of the North-West to the Hudson’s Bay Company transfer in 1870, which is rooted in the problematic logic of the Doctrine of Discovery. Therefore, this article shows that at the heart of Canadian claims to ownership of Indigenous lands in the North-West lies an impractical mythology that, in the words of John Borrows, allowed the Crown to secure legal control of Indigenous lands through “raw assertion.”³ In demonstrating this point, I critically analyze five major public political events that position the Hudson’s Bay Company transfer agreement as the foundation of Canada’s 1870 assertion of sovereignty over the North-West. These events include: (1) the British Crown’s initial discovery claim at Hudson Bay; (2) the Hudson’s Bay Company Charter of 1670; (3) the Selkirk Grant of 1811 and Treaty of 1817; (4) Canada’s North-West discovery via New France; and (5) the HBC transfer agreement in 1869. This article demonstrates that Canada’s political claims to ownership over the North-West lay in problematic claims of sovereignty made by British and Canadian explorers, politicians, and businessmen, using language of discovery and sovereignty to obscure Indigenous governance already in practice. These claims are further complicated as they are more assertively invoked at the moment of a settler-colonial transition in the North-West, and are bound up in the changing status of an Indigenous-centered fur trade economy with a new settler project that sought to displace Indigenous peoples from the land both conceptually and physically.

In analyzing the theoretical underpinnings of these political articulations, I am less concerned with Indigenous responses to British and Canadian claims making (although there were many), or the historiography of interpreting such events, than I am in showing that Canada’s political claim to the North-West ultimately rests on what James Tully refers to as a hinge proposition. A hinge proposition is a foundational assumption that is “relatively immune to direct criticism” because it is part of the “background norms” used by political actors to understand their political community, and thus...