Date of Award

12-1-2012

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

First Advisor

Brian Slattery

Second Advisor

Susan Drummond

Third Advisor

Kent McNeil

Abstract

History is an essential part of aboriginal law. The two disciplines, however, may produce incompatible narratives of indigenous-settler relations. In addition, indigenous legal traditions and the fur trade in the old North West have been under-represented in Canadian legal history, a gap that demotes over two centuries of working relationships to a brief preface to the numbered treaties and confederation. This dissertation seeks to bring under-observed normative relations between indigenous and European traders into Canadian legal history. It further considers the relevance of fur trade law to the jurisprudence on aboriginal treaty rights and the significance of history in overcoming historical injustice in settler states. Using an ethnohistorical methodology, three case studies are presented on the law of the fur trade followed by a chapter connecting the interpretation of the intersocietal law of the fur trade to the interpretation of treaties in history and law. Focussing the fur trade as conducted by the Hudson's Bay Company and the North West Company, the case studies investigate the normative expectations of the indigenous and company traders around particular aspects of the trading relationship. These aspects include institutions of leadership, the formation and maintenance of friendships, negotiations of trading post location, and the exchange of provisions and support in times of famine and illness. In these case studies, the intersocietal law of the trade is interpreted as incomplete and often laden with misunderstanding. It involved competition between normative systems and harboured persistent disagreements, even while sufficient shared obligations and occasional shared meanings emerged to support robust working relationships. This interpretation of the intersocietal law of the fur trade demands a shift in the characterization of treaties in history and law. I argue that to better serve the aims of justice and reconciliation, both the classification of treaties in history and the interpretive focus of the treaty rights jurisprudence must change to allow the complexity of the historical relationship - including the disagreements and injustices buried in simpler narratives - to emerge.

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