Reference Re Eskimos

Chief Justice Lyman P. Duff, in his opinion, consulted what he believed to be "the most authoritative" evidence, namely evidence from the Hudson's Bay Company which governed Rupert's Land. A British House of Commons committee examined how the company dealt with the Inuit in 1856 and 1857. The Hudson's Bay Company prepared a report for the committee, and as Duff noted, the report referred to Inuit as a type of "Indian." Later, after the British North America Act was adopted, the Parliament of Canada declared in December 1867 that if it gained jurisdiction over Rupert's Land, it would take responsibility for the Indians there. In 1870, the territories were awarded to Canada.

Duff then added that the Inuit of Labrador, as well, had been widely referred to as Indians from around 1760 and were when the British North America Act was adopted. Official records from 1762 called Inuit "savages", and Duff compared this to how Indian tribes such as the Montagnais and Huron were called savages. In 1869, a judge from the Court of Labrador prepared a report for the Governor of Newfoundland which referred to "Esquimaux" (Inuit) as a type of Indian. Duff also found some missionaries referred to Inuit as Indians. In this context, Duff found it important that in 1879, Prime Minister John A. Macdonald, one of the chief negotiators of the British North America Act, discussed the Inuit with Hector Langevin, and the discussion referenced the Inuit as Indians.

As defined by the Royal Proclamation of 1763, Indians are "the several nations or tribes of Indian with whom We are connected and who lived under Our protection." The federal government argued this would not include the Inuit, as the words "nations" and "tribes" were not used to describe Inuit communities. However, Duff found evidence contradicting this. Duff also said the Inuit under the Hudson's Bay Company to an extent lived under the "protection" of the Crown, "under either charter or license from the Crown." Duff also doubted that the Royal Proclamation of 1763 could guide interpretation of the British North America Act.

Justices Albert Hudson and Henry Hague Davis each wrote brief opinions concurring with Duff.

Justice Cannon wrote his own opinion finding the Inuit should be considered Indians. He noted the report by Sir George Simpson in 1857 calling Inuit Indians. Cannon then concluded, "the report of the Committee must have been known to the Legislature at Westminster in 1867." He also pointed to the Quebec Conference of 1864, in which Resolution 29(29) of the Quebec Resolutions declaring the (Federal) Parliament should govern "Indians and Lands reserved for the Indians," in which the latter term was translated into French as "Les Sauvages et les terres réservées pour les Sauvages."[1] This meant all natives in British North America, including Newfoundland.

Justice Patrick Kerwin also wrote an opinion finding that Inuit were Indians. He felt the British North America Act, in referring to Indians, was intended to mean Aboriginals. He noted evidence that Samuel de Champlain, missionaries and others classified Indians as "sauvages" and Inuit as "sauvages esquimaux." Books which Kerwin speculated that the Fathers of Confederation and the British Parliament in 1867 might have seen also used this classification. Editions of Webster's Dictionary from 1913 and the 1920s did not count the Inuit as Indians, but earlier dictionaries did.

Justice Oswald Smith Crocket wrote an opinion briefly concurring with Justices Cannon and Kerwin.