Dear Sir or Madam,
The Royal Proclamation, 1763 is a pre-constitution, quasi-constitutional document. The Proclamation was written as an explanation of how Britain’s newly expanded holdings in North America would be administered.1 The parts dealing with the newly conquered French settlers in Quebec will be discussed in a future week. Today’s post explains how this edict affected relations between what would become Canada and the Indigenous inhabitants of the area.
The war with France was not the only conflict that Britain faced on the North American continent at that time. Indigenous peoples had been allied with the French and waged a successful campaign in the Great Lakes region in 1763, long after the French had capitulated on the continent. The Royal Proclamation was intended to ensure peace.2
The most important aspect of the Royal Proclamation regarding Indigenous peoples was the strict demarcation between “Indian Territory” and British colonies. The recent wars with Indigenous groups had been caused by encroachment from European settlers. The Royal Proclamation was intended to reassure the Indigenous groups that their territorial integrity would be respected while also allowing the Crown to encroach on it.3 Only the Crown was allowed to purchase land from Indigenous groups and a special license was needed to trade with them. Existing settlers were told to leave the area west of Montreal and the Ohio River, which was declared “Indian Territory”.4
The Royal Proclamation was ratified by several Indigenous groups as the Treaty of Niagara in 1764. This treaty established trade relations and a promise to punish settlers who committed crimes in Indigenous territory. The Treaty of Niagara ratified the proposition from the Royal Proclamation that only the Crown could make deals with Indigenous groups for control of their land.5 Unfortunately, the British had no intention of abiding by the spirit of this agreement; only the letter of it. It was very rare for British authorities to actually punish illegal settlement or trade in “Indian Territory”. The intent had always been to establish an orderly transition of control, rather than truly respecting Indigenous sovereignty.6
Despite the disingenuity, the Royal Proclamation text and the Indigenous record, known as the two-row wampum, form the bedrock of the “nation to nation” relationship between Indigenous peoples and the Crown. The wampum belt is an old Indigenous tradition where the meaning of a treaty is recorded in a belt with beads of various colours.7 In this particular wampum there are rows showing separate but parallel paths for the English and their Indigenous allies, as well as rows symbolizing peace, friendship, and respect. Future treaty negotiations would see Indigenous groups invoking this interpretation when telling the Crown to respect their rights to self-determination.8
The two interpretations of the Royal Proclamation have both found their way into Canadian constitutional documents. First, the British interpretation was factored into the British North America Act, which established that the federal government inherited British authority over “Indian” lands.9 Later, in the Constitution Act, 1982, new provisions were added which were more in tune with the Indigenous perspective. Charter rights were specified to not detract from any prior treaty rights, with the Royal Proclamation explicitly named.10 The Constitution Act, 1982 guarantees treaty rights and land claims agreements.11 Further, this Constitution guarantees Indigenous groups seats at the table when discussion of Constitutional amendments affects their unique rights.12
The Royal Proclamation, 1763 is the founding document of the nation-to-nation relationship between the Canadian government and Indigenous peoples. Unfortunately, this relationship has a very long history of being disrespected and ignored. This situation is improving today, but we still have a large way to go to repair relations. We hope you will consider these issues as we continue to spend this week focusing on Indigenous issues.
Your Humble and Obedient Servants,
The Dominion
1Cole Harris, The Reluctant Land (Vancouver: UBC Press, 2008) at 231.
2D Peter MacLeod, Northern Armageddon (Vancouver: Douglas & McIntyre, 2008) at 294.
3John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” in Aboriginal and Treaty Rights in Canada, ed Michael Asch (Vancouver: UBC Press, 1997).
4Harris, supra note 1 at 123.
5Borrows, supra note 3.
6Harris, supra note 1 at 123.
7For more information on wampum tradition, see Dr. Lynn Gehl’s work. We discussed Dr. Gehl’s Charter challenge on Friday, October 7 and more information on her story is on her web site.
8Borrows, supra note 3.
9Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24), reprinted in RSC 1985, Appendix II, No 5.
10Constitution Act, 1982, s 25, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
11Ibid, s 35.
12Ibid, s 35.1.
