The Spirit of 1763

Fall 2013

PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES Director’s Introduction The Royal Proclamation: 250 years later nniversaries are fortuitous occa­ to the activehistory.ca project, in which By Colin M. Coates Asions to reflect on the ongoing sig­ he has played a key role. nificance of an event from the past. Of Colin M. Coates is the director of In 2008, Tom, Jim Clifford (now in the Robarts Centre for Canadian course, only certain events are remem­ the History Department at the Univer­ Studies at York University. bered, and both what is commemor­ sity of Saskatchewan), Victoria Free­ ated and what has been forgotten can man (who teaches at York University be equally interesting. This current pro­ inary discussions between Tom Peace, and who contributed to this issue), and ject developed out of a concern that a former doctoral student here at York, Lisa Helps (now a city councillor in the 250th anniversary of the Royal Proc­ and well-known public historian Chris­ Victoria, BC), all then graduate students lamation of 1763 would not be com­ topher Moore, and concluded that it in history at York University and the memorated. We have since learned of would be most worthwhile to dedicate University of Toronto, ran a highly suc­ other projects to commemorate the an issue of Canada Watch to this pro­ cessful conference at Glendon College Royal Proclamation. I heard of prelim­ ject. Tom wished to link this initiative Director’s Introduction, page 3 Editorial The politics of proclamation, the politics of commemoration ctober 7, 2013 marks the 250th year Breton to Nova Scotia. Second, it estab­ By Thomas Peace Osince King George III issued what lished land grants for the war’s veter­ is, for Canadians, the Crown’s most Thomas Peace is the Harrison McCain ans. Finally, it extended the Crown’s famous Royal Proclamation. Over the visiting professor in the Department of claim to Indigenous territory presumed History and Classics at Acadia University. 17th and 18th centuries, the English to be unoccupied by European settlers monarch released over a hundred royal and previously unclaimed by the British­ proclamations. Some of these procla­ An Outline of the 1763 Crown or its subjects. mations declared war (usually against Royal Proclamation In extending Britain’s claim to Indian France), others—such as the Royal Proc­ Known by some as First Nations peo­ Country, the Proclamation required that lamation of October 23, 1759—mandated ple’s or Canada’s Magna Carta, the 1763 the Crown negotiate with Indigenous public thanksgiving and celebration, Royal Proclamation laid a framework people before its subjects colonized while others focused on more local for British behaviour and law in North or otherwise interfered with the people laws (lotteries in Virginia in 1621, pro­ America following France’s defeat in living beyond the Proclamation Line. hibiting trade in Hudson’s Bay in 1688, the Seven Years’ War. The Proclamation­ This line, which was quickly pushed establishing a post office in 1711, and performed three functions. First, it estab­ Editorial, page 3 mandating “fast days” in England dur­ lished the boundaries and governance ing the American Revolution). Few of structures for four newly acquired col­ The contents of this issue are listed these proclamations, however, carry onies: Quebec, East and West Florida, in the Features box on page 2. the historical legacy of the one issued and Grenada.­ It also annexed Île Saint in October 1763. Jean (Prince Edward Island) and Cape

Canada Watch is a publication of the Robarts Centre for Canadian Studies of York University

PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES Canada Watch Fall 2013

PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES The 1763 Royal Proclamation Editor Colin Coates, Director, in Historical Context Robarts Centre for Canadian Studies, York University This issue is a joint project of the Robarts Centre for Canadian Studies of York University and ActiveHistory.ca. Guest Editor Thomas Peace, Harrison McCain Visiting Professor, Feature Acadia University

Managing Editor Director’s Introduction Parchment, wampum, letters, Laura Taman, Coordinator, The Royal Proclamation: and symbols: Expanding Robarts Centre for Canadian Studies, 250 years later the parameters of the Royal York Unversity By Colin M. Coates ...... 1 Proclamation commemoration By Alan Ojiig Corbiere . . . . . 17 Columnists in this issue Editorial Reflections on 1763 in Colin M. Coates Alan Corbiere The politics of proclamation, Far Northern Ontario Thomas Peace John S. Long the politics of commemoration By John S. Long ...... 19 J.R. Miller Brandon Morris Brian Slattery Jay Cassel By Thomas Peace ...... 1 “The said Lands … shall be The Royal Proclamation— purchased only for Us”: John Reid Robert Englebert ”The Indians’ Magna Carta”? The effect of the Royal Denys Delâge Neil Vallance By J.R. Miller ...... 5 Proclamation on government Jean-Pierre Sawaya Hamar Foster Is the Royal Proclamation By Brandon Morris and Donald Fyson Ken Coates of 1763 a dead letter? Jay Cassel ...... 21 Keith Jamieson Victoria Freeman By Brian Slattery ...... 6 Much ado about nothing: The Royal Proclamation Production The significance of the WordsWorth Communications Royal Proclamation of on the edge of empire 1763 for Atlantic Canada* By Robert Englebert ...... 23 Contact for information By John Reid ...... 8 The life and times of Canada Watch La Proclamation royale the Royal Proclamation 7th Floor, Kaneff Tower vaut-elle pour tous les Indiens of 1763 in British Columbia 4700 Keele St., Toronto, Ontario M3J 1P3 de la Province de Québec?* By Neil Vallance Phone 416-736-5499, Fax 416-650-8069 and Hamar Foster ...... 25 http://robarts.info.yorku.ca Par Denys Delâge et Jean-Pierre Sawaya ...... 9 The spirit of 1763: The Royal For information regarding future issues, The Royal Proclamation Proclamation in national contact Laura Taman, Coordinator, and global perspective Robarts Centre. and the Canadiens By Ken Coates ...... 27 By Donald Fyson ...... 11 Please address comments to The Haundenosaunee/ The Royal Proclamation and Colin M. Coates, Director, Robarts Centre. Six Nations and the Royal colonial hocus-pocus: Canada Watch is produced by Proclamation of 1763 A learned treatise By Victoria Freeman ...... 29 the Robarts Centre for Canadian Studies By Keith Jamieson ...... 13 of York University. The Royal Proclamation of 1763 Further Reading ...... 31 Copyright © 2013 The complete text ...... 14 The Robarts Centre for Canadian Studies

Printed in Canada ISSN 1191-7733

2 Canada Watch • Fall 2013

PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES Director’s Introduction continued from page 1 on the theme of “Active History.” They the early 18th century and the Wendat Royal Proclamation vary a great deal wished to demonstrate how historical in the mid-18th century. He then took in the pages that follow. For some research can inform current-day con­ up a post-doctoral fellowship at Dart­ experts, the Proclamation deserves the cerns, and indeed how contemporary mouth College in New Hampshire to designation as a “Magna Carta” for First issues must be set in their historical study Indigenous engagement with col­ Nations peoples in Canada, while others context. The peer-reviewed activehis­ onial colleges and day schools at the believe that the document has little rel­ tory.ca website developed as a means end of the 18th century. He is currently evance for today’s concerns. This debate of reaching a broad public, and it cur­ the Harrison McCain Visiting Profes­ is both informative and challenging, rently receives between 16,000 and sor in the Department of History and and that has been our goal with this 20,000 unique visits each month. Classics at Acadia University. We are publication. York University’s Robarts Tom completed his PhD in the Depart­ indebted to Tom for his initiative on this Centre for Canadian Studies is pleased ment of History in 2011, comparing the project and his efficient work in bring­ to offer this contribution to the ongoing impact of the British Conquest of Aca­ ing together this range of specialists. discussion of this important document dia and New France on the Mi’kmaq in The views of the significance of the in the history of Canada.

Editorial continued from page 1 westward, was initially drawn between the headwaters flowing into the Atlan­ Though not wholly optimistic, [Ken] Coates tic Ocean and those flowing into the observes that for Canada today, honouring Ohio and Mississippi Rivers. In draw­ ing this boundary, the Proclamation the spirit of 1763 not only requires the meeting sought to clearly demarcate settler space from Indigenous space. The Crown, of technical and legal obligations; but after all, was concerned with the “great Frauds and Abuses [that] have been must also involve a cultural, and therefore committed in the purchasing Lands of personal, transformation. the Indians” beyond the reach of col­ onial authority. Anyone living on land not properly ceded to the Crown was culture, and its role in shaping public tion’s history around the Great Lakes. to be removed. In issuing the Procla­ discourse today. John Reid then situ­ Keith Jamieson and Alan Corbiere, re­ mation, the British wished “that the Indi­ ates the Proclamation in its Atlantic Can­ spectively, address this subject through ans may be convinced of Our Justice, adian context, emphasizing the edict’s the lens of Haudenosaunee and An­ and determined Resolution to remove role in crafting the region’s political geog­ ishinaabe history. Making considerably all reasonable Cause of Discontent.” raphy, though not its various govern­ different arguments, both scholars con­ This last point gave the document a ments’ policies toward Indigenous peoples. clude that the King’s declaration in 1763 lasting legacy in Canada. How it did Two essays then address the Proclama­ meant little to either people. They em­ so, and how it shaped North Ameri­ tion’s impact on the St. Lawrence Val­ phasize instead the long diplomatic ca’s political geography more broadly, ley. Denys Delâge and Jean-Pierre Sawaya history that preceded and followed the is the subject of the following essays. argue that the Proclamation applies to fall of New France. John Long makes In soliciting contributions to this issue, all Indigenous peoples in the St. Law­ a similar point in addressing how the we asked a diverse array of scholars rence Valley (specifically the Seven Fires Proclamation shaped the oral nature with an expertise on this document and Confederacy), not merely those people of negotiations of Treaty Nine in north­ its historical context to reflect on why living in the region before the French ern Ontario. Finally, this section con­ it was (or was not) so significant. arrived. Similarly, Donald Fyson lays cludes with a reflection on the Procla­ out the law’s ambiguous impact on the mation, governance, and litigation writ­ An Introduction to the Essays colony’s French Catholic population, ten by Jay Cassell and Brandon Mor­ The issue begins with two essays, one demonstrating that the on-the-ground ris, historians working for Ontario’s by J.R. Miller and the other by Brian legal implementation differed from what Ministry of Aboriginal Affairs. Slat­tery. Both pieces outline the Proc­ one might assume through a literal inter­ The next three essays address spac­ lamation’s broad context, its general pretation of the text. es wherein 1763 the British had little impact on Canadian society and legal Four essays address the Proclama­ Editorial, page 4

Canada Watch • Fall 2013 3 Editorial continued from page 3 to no influence. Robert Englebert re­ ­government records about residential flects on the Proclamation’s impact on The stakes of schools, the government has withheld what became the Midwest United States, commemoration are these documents from its own appoint­ emphasizing how French settlements ed commission examining the history located deep in what by 1763 was con­ high, presenting both and legacy of this dark period in Can­ sidered “Indian Territory” undermined ada’s history. the Proclamation’s rigid division be­ opportunities to learn Commemorating the Royal Procla­ tween Indigenous and settler spaces. mation has fallen into this politically Neil Vallance and Hamar Foster explain about the past but charged environment. This issue of the Proclamation’s idiosyncratic appli­ also — as we have Canada Watch originated from a ser­ cation in British Columbia, illustrating ies of conversations between Christo­ the document’s contested nature over seen in recent years pher Moore, Colin Coates, and me that the course of the 20th century. Similar­ focused on the need to draw the pub­ ly, Ken Coates situates the Proclama­ — for narrowing the lic’s attention to this important histor­ tion in its national and international ical document. Alan Corbiere’s essay context to demonstrate the document’s scope of public in this issue implicitly critiques our broader resonance with other coloni­ historical inquiry. approach, pointing out that a focus on al and post-colonial histories. Though the Proclamation presents its own set not wholly optimistic, Coates observes of problems about how the past is remem­ that for Canada today, honouring the rifying nutritional and medical testing bered. In commemorating the Procla­ spirit of 1763 not only requires the meet­ on Indigenous populations, captured mation—a document written by and for ing of technical and legal obligations, national and interna­tional attention and Europeans—we neglect the outbreak of but must also involve a cultural, and renewed discussions about whether Pontiac’s War, an Indigenous war against therefore personal, transformation. the Canadian state committed geno­ the British that nearly vanquished Euro­ It is for this reason that I chose to cide through its policies toward First pean troops from the western Great end the collection with Victoria Free­ Nations peoples. More broadly, debates Lakes and Ohio Valley. The stakes of man’s contribution. Though she consi­ over the politics of history and com­ commemoration are high, presenting ders her essay to be a “rant,” rather than memoration (so common in the 1980s both opportunities to learn about the something more academic, Freeman’s and 1990s) have been rekindled and past but also—as we have seen in recent personal approach uniquely addresses moved beyond the classroom, frequently years—for narrowing the scope of pub­ the complications of the Proclamation appearing in the op-ed pages of our lic historical inquiry. for Canadian society today. Her perspec­ national newspapers, and on radio and This issue of Canada Watch seeks tive builds upon and directly connects television programs. to promote the former outcome. In his with the broader contemporary politic­ For the most part, we have Stephen reflection here, J.R. Miller considers al context in which this issue of Can- Harper to thank for this period of rich the place of the Proclamation in Can­ ada Watch was compiled and the Roy­ intellectual discussion. More than any adian society as a barometer of Can­ al Proclamation is remembered. other year in recent memory, 2012 ada’s (and Canadians’) relationship marked a profound shift in history- and with Indigenous peoples. I would like The Politics of Commemoration ­heritage-related public policy. In that to suggest that in 2013, it is equally a This year’s commemoration of the 1763 single year, the government launched barometer of what type of history is Royal Proclamation falls at a time when a formal celebration of the War of 1812, important and what events ought to be Canada’s history is under intense scru­ using it to build toward the 150th anni­ publicly considered as part of Canada’s tiny. With two-thirds of the year com­ versary of Confederation in 2017. While founding narrative. The essays in this plete, 2013 promises to be a banner celebrating the past with one hand, how­ collection do not present a unified per­ year for popular discussions about the ever, the same government launched spective on this question. They pro­ past. Idle No More continues to draw extreme cutbacks to funding for ar­ vide, however, an evidence­ -based and Canada’s attention to the failed rela­ chives, museums, and national parks informed foundation from which to tionship between Canadians, Indigen­ across the country with the other. These evaluate the Proclamation’s historical ous people in Canada, and the Canad­ are the very institutions responsible for significance, the history of Canada’s ian state. The publicity of recent his­ preserving Canada’s documentary and relationship with Indigenous peoples, torical studies conducted by Maureen material heritage. Despite pleas for the and today’s contemporary politics of Lux and Ian Mosby, documenting hor­ release of important and necessary commemoration.

4 Canada Watch • Fall 2013 The Royal Proclamation— ”The Indians’ Magna Carta”? In practice, the Proclamation was Protecting By J.R. Miller Aboriginal Rights? only partially successful in protecting J.R. Miller is a professor in First Nations’ lands from fraud and con­ ecause its concluding paragraphs the Department of History at flict. Beginning in 1764, the custom of Bdeal with First Nations and their the University of Saskatchewan. lands, the Royal Proclamation of 1763 having British-appointed governors and is sometimes referred to as “the Indi­ Indian Department officials conduct ans’ Magna Carta.” Many people regard In practice, the negotiations for First Nations’ lands George III’s policy for the new territo­ Proclamation was evolved in what is now southern Ontario. ries the United Kingdom had acquired Although irregularities occur­red—the following the Seven Years’ War as the only partially governor of the region twice had to guarantor of Aboriginal title law in Can­ issue ordinances reminding everyone ada today. Its greatest champions argue successful in of the rules—by the 1820s, a system of that it is like the foundation of consti­ treaty-making for First Nations’ lands tutional government and law in Britain, protecting First was established. As direct control by the document that the barons made Nations’ lands from Britain’s Indian Department gave way King John sign in 1215. in stages, between the 1840s and 1860s, Is the Royal Proclamation as central fraud and conflict. to administration of Indian affairs by to Aboriginal rights in Canada as the colonial governments dominated by Magna Carta is in the UK? Or have the settlers, the degree of loyalty to the so-called Indian clauses of the Royal lamation said that the reserved and pro­ Proclamation protocol for dealing with Proclamation been a dud so far as First tected lands could be obtained only lands waned. Nations’ rights are concerned? Have by the Crown, acting through its appointed The staying power of Crown monop­ Indigenous peoples not been system­ agents. These Crown agents could only oly over negotiating for First Nations’ atically stripped of their traditional ter­ negotiate for Native land “at some pub­ land was illustrated in the 1870s. When ritories by rapacious settler societies lic meeting” called “for the Purpose by the government of Sir John A. Macdon­ that emerged in Canada as they did in the Governor.” ald had to devise a policy for dealing other former British colonies of settle­ with the tens of thousands of First Nations ment? Fraud and Conflict who occupied the southern portions As other essays in this collection These provisions aimed to prevent Brit­ of the Hudson’s Bay Company land in demonstrate, the policy document for ain being dragged into conflicts with the West, it reached instinctively for eastern North America that King George First Nations. Before the 1760s, unscru­ the Proclamation-based protocol. In III issued in October 1763 certainly did pulous land speculators in the Thirteen striking contrast to the practices of the not single out First Nations’ rights for Colonies had sometimes obtained a American government, which was busy attention. Its first eleven paragraphs fraudulent deed from a Native Amer­ through the 1870s fighting bloody Indian dealt with the boundaries of newly ican by bribery or alcohol, knowing wars in the West, Canada appointed acquired territories and their institu­ that the putative vendor had no author­ Crown commissioners to negotiate with tions of governance and law. Only the ity to surrender lands that belonged to First Nations for peaceful access to last five paragraphs addressed First his community. When innocent home­ lands for settlement. Quietly and quickly, Nations’ issues. First, the Proclamation steaders who purchased lands from the seven territorial treaties were negoti­ recognized some sort of Indigenous speculator tried to establish farms in ated that provided for unopposed settle­ right to possess territories that lay beyond Indian territory, there was pushback ment of a vast inland empire. From 1899 existing colonial boundaries and the from the Natives that sometimes resulted until 1921 in the North, the Crown sim­ height of land to the west of the Thir­ in warfare between First Nations and ilarly negotiated another four territor­ teen Colonies. These lands, it said, were colonial troops. To end the conflict, ial treaties that gave Canada uncon­ “reserved to the … Indians.” Then, the the Proclamation closed the interior tested access to an enormous store­ document specified the protocol by of the continent to settlement, regu­ house of natural resources. As had been which these protected lands could lated access to it by traders, and pro­ the case in the middle of the 19th cen­ legally be acquired. To discourage free­ mulgated the rules for exclusive Crown tury, though, as time went on and the lancing by land speculators, the Proc­ purchase of Native lands. ”The Indians’ Magna Carta,” page 7

Canada Watch • Fall 2013 5 Is the Royal Proclamation of 1763 a dead letter? he Royal Proclamation is now 250 1982. Unfortunately, as the court has By Brian Slattery Tyears old. Is it still relevant today? noted, in the past these principles were Arguably not. The document was draft­ Brian Slattery is a professor of law and often honoured as much in the breach distinguished research professor at ed in London in the spring and sum­ as in the observance, giving rise to dif­ Osgoode Hall Law School, York University. mer of 1763 by a handful of bureaucrats ficult questions as to how they may best and politicians. It was part of a project be implemented in modern times and to enforce British imperial claims to a how past injustices may best be acknowl­ vast American territory from which How can this ancient edged and remedied. France had recently withdrawn. Most document speak to of the territory was actually controlled The Honour of by independent Indigenous nations— the modern position the Crown some of them former allies and trad­ In grappling with these questions, the ing partners of the French, many of them of Indigenous Supreme Court has increasingly been hostile to the incoming English or at drawn to the concept of the “honour best suspicious. The Proclamation was Canadian peoples? of the Crown” as the overarching prin­ designed to allay those fears while at ciple of Aboriginal and treaty rights— the same time further imperial ambi­ one that invigorates the jurisprudence tions. In effect, it was crafted to deal responding to a particular historical sit­ on Aboriginal rights as a whole and with a very specific situation—one that uation, the Proclamation, like the Magna acts as a touchstone for the reconcili­ has long since passed into history. Carta, sets out timeless legal principles. ation of those rights with those of the In the past two and a half centuries, Changes in circumstances have altered larger Canadian community. the territories to which the Proclama­ the way in which these principles apply, In decisions such as Haida Nation tion applied have undergone sweeping but the principles themselves are as (2004) and Manitoba Metis Federation and profound changes in every sec­ fresh and significant as ever. Three of (2013), the Supreme Court has held that tor—political, legal, demographic, eco­ these principles stand out. the honour of the Crown requires that nomic, social. Territories that were once Aboriginal rights be determined, rec­ in the exclusive possession of Aborig­ Timeless Legal Principles ognized, and respected. This process inal nations are now shared with people First, Indigenous Canadian peoples are must observe the basic principles implicit originating from every sector of the autonomous nations that have ancient in the Crown’s historical relationships globe and ruled by governments elected historical connections with the Crown, with Aboriginal peoples as well as fun­ by popular majorities. How can this which stands as the guarantor of their damental principles of justice and human ancient document speak to the mod­ autonomy and basic rights. rights. ern position of Indigenous Canadian Second, these peoples hold legal The honour of the Crown also infuses peoples? Isn’t it just as obsolete as the title to their traditional territories, which the processes of treaty-making and schooners and barques that carried cannot be settled or taken from them treaty interpretation, so that the Crown copies of the Proclamation to ­America? without their consent. must act with honour and integrity, In reality, the Proclamation is as rel­ Third, any important matters that avoiding even the appearance of “sharp evant as it ever was—some would say arise between Indigenous peoples and dealing.” Where treaties remain to be more relevant. It embodies the funda­ the Crown—such as the transfer or shar­ concluded, it requires the Crown to mental legal principles that have informed ing of lands—are to be settled by bind­ engage in negotiations with Aboriginal relations between the Crown and Indigen­ ing treaties freely concluded between peoples leading to a just settlement of ous American peoples almost since the the Crown and the Aboriginal peoples Aboriginal claims. first British settlements were founded concerned. Further, the honour of the Crown in America in the early 1600s. In the In modern times, all three princi­ gives rise to a duty to consult with Ab­ watershed Calder decision of 1973, Jus­ ples have been recognized by the Supreme original peoples and, where appropri­ tice Emmett Hall of the Supreme Court Court of Canada as part of the legal ate, to accommodate their claims, in of Canada described the Proclamation bedrock of modern Aboriginal and treaty instances when the Crown contem­ as akin to the Magna Carta—and the rights, which are now guaranteed in plates an action that will affect a claimed analogy is an appropriate one. While section 35(1) of the Constitution Act, but as yet unproven Aboriginal interest.­

6 Canada Watch • Fall 2013 Finally, as the Supreme Court has recently held, the honour of the Crown The Supreme Court has increasingly been requires the Crown to fulfill its consti­ drawn to the concept of the “honour of tutional obligations to Aboriginal peoples in a diligent and purposive manner. the Crown” as the overarching principle In a sense, these judicial develop­ ments are all prefigured in the words of Aboriginal and treaty rights. of the Royal Proclamation, penned two and a half centuries ago, where the Crown declares in resounding terms: And whereas great Frauds and of Our Justice, and determined Whereas it is just and reasonable, Abuses have been committed in Resolution to remove all reason­ and essential to Our Interest and the purchasing Lands of the Indi­ able Cause of Discontent … the Security of Our Colonies, that ans, to the great Prejudice of Our the several Nations or Tribes of In­ Interests, and to the great Dissatis­ The Crown goes on to enact specific dians, which whom We are con­ faction of the said Indians; in order measures to address these problems. nected, and who live under Our therefore to prevent such Irregulari­ But the Proclamation’s work is not yet Protection, should not be molested ties for the future, and to the End done. Today, 250 years later, “reason­ or disturbed … that the Indians may be convinced able Cause of Discontent” remains.

”The Indians’ Magna Carta” continued from page 5 non-Native population outstripped the Indigenous, the government’s adher­ The Proclamation is better understood ence to Proclamation-based protocol as a barometer of Native–newcomer weakened. relations in Canada. Aboriginal Title The courts revived the Proclamation as a shield of First Nations’ rights. The ing their rights. Second, an energetic eter of Native – newcomer relations in highest court in the British Empire in group of lawyers—Aboriginal and non- Canada. When non-Natives need First 1888 had ruled in St. Catherine’s Mill- Aboriginal—fashioned an expansive Nations, relations are harmonious. Proc­ ing and Lumber Company v. The Queen understanding of Aboriginal rights in lamation principles are then respected. that the Proclamation recognized only law. As well, when Canada’s political But when the relationship cools, usu­ “a possessory and usufructuary right leaders refashioned the country’s Con­ ally because non-Natives no longer think dependent on the goodwill of the Sov­ stitution in 1982, they referenced the they need Aboriginal people econom­ ereign.” In other words, Indigenous Proclamation in the Charter of Rights ically, the commitments concerning people had a right of usage that Crown and Freedoms. Aboriginal lands in the Proclamation and Parliament could abridge or can­ A quarter of a millennium after its are scouted by governments dominated cel. Beginning in the 1970s, the Supreme promulgation, does the Royal Procla­ by non-Natives. Whether Magna Carta Court of Canada began to revise this mation of 1763 stand as “the Indians’ or barometer of Native – newcomer rela­ view of the Proclamation and the law Magna Carta”? Perhaps, but never wholly, tions, though, the Royal Proclamation of Aboriginal title. First, in 1973 the and largely belatedly. The Proclama­ is undoubtedly critically important to Calder decision recognized that Aborig­ tion is better understood as a bar­om­ Indigenous affairs in Canada today. inal title existed in law, and could there­ fore presumably be enforced. Then, the same court in the 1997 Delgamuukw Learn more about decision found that Aboriginal title was something substantive and robust. It

was, the Supreme Court said, “a right PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES to the land itself.” and the Robarts Centre This rapid evolution of judicial inter­ for Canadian Studies at pretation was attributable to two things. First Nations were becoming increas­ http://robarts.info.yorku.ca ingly assertive and effective in advanc­

Canada Watch • Fall 2013 7

PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES The significance of the Royal Proclamation of 1763 for Atlantic Canada* and imperial or colonial history remained Shifting Boundaries By John Reid he implications of the Royal Proc­ on the periphery. John Reid is a professor of History In Labrador, the Proclamation opened lamation of 1763 for the territories and Atlantic Canada Studies at T the way for Newfoundland naval gov­ and adjoining waters of what was later Saint Mary’s University. to be known as Atlantic Canada were ernors to attempt to defuse tensions and hostilities between European fish­ profound. They were also diffuse and ers and the Inuit. They did so partly varied widely according to the political The Proclamation through diplomacy and also by facili­ and physical geography of that vast area. redrew the imperial tating the missionary activities of the The Proclamation redrew the imperial Moravian Brethren, which gathered political geography. To the existing col­ political geography. strength with the foundation of the Nain ony of Nova Scotia, it added the two Mission Station in 1771. Colonial settle­ large islands in the Gulf of St. Lawrence ment on any significant scale, however, that had been surrendered by France in which both the nature of Newfound­ remained predictably absent, both for in the Treaty of Paris: the Island of St. land’s jurisdiction over the area and environmental reasons and because John (later Prince Edward Island) and the depth or otherwise of the coastal the coast of Labrador was regarded for Cape Breton Island. There were changes territory involved came into repeated imperial purposes as an area where, still to come. In addition to the con­ question in the interests of the com­ as on the island of Newfoundland, settle­ tinuing uncertainty over the western peting claim of Canada and Quebec. ment was neither proscribed nor encour­ boundary of Nova Scotia with New Eng­ Nevertheless, the Proclamation was aged. In Nova Scotia—even though the land, the enlarged “Old” Nova Scotia foundational to the imperial determin­ establishment of Halifax, the deporta­ of the Proclamation lasted only six years ation in 1927 that Labrador—with some tion of the Acadians, and the influx of and underwent repeated revision there­ boundary adjustments over time—apper­ New England planters pointed toward after. The Island of St. John became tained to Newfoundland, or (as it became a harsher future—the level of settlement an autonomous colony in 1769, as did formally known in 2001) to the prov­ in the mid-1760s remained manageable New Brunswick and Cape Breton Island ince of Newfoundland and Labrador. for the Mi’kmaq and Maliseet through in 1784, though Cape Breton reintegrated Even so, the restoration to France of treaty-making and occasional threats with Nova Scotia in 1820. Whatever the the islands of St. Pierre and Miquelon of armed intervention. complications, the Proclamation was in the Treaty of Paris, also in 1763, was a key stage in this colonial evolution. at least as significant as any provision A Complex History The Proclamation also put “the Coast of the Proclamation. Despite explicit evidence that the Proc­ of Labrador and the adjacent Islands”— lamation applied throughout “Old” Nova including Anticosti, the Magdalen Islands, Indigenous History Scotia, its provisions relating to Indigen­ and many smaller islands—under the Was Central ous land had a troubled and complex naval governance of Newfoundland. Important as the Proclamation was for history in the maritime colonies. Nova The coast of Labrador, as defined in matters relating to imperial governance Scotia was included in key royal instruc­ the Proclamation, extended from the and the boundaries involved, the broader tions issued on December 12, 1761, Rivière Saint-Jean, the mouth of which reality of 1763 was that the impinge­ which, foreshadowing the Proclama­ was almost directly opposite the west­ ments of empire, either British or French, tion, put severe limits on non-Indige­ ern tip of Anticosti, to “Hudson’s Straights” had had limited significance for Indigen­ nous land acquisitions from “the sev­ at a point later determined as Cape ous peoples. Without underestimating eral nations or tribes of Indians bor­ Chidley. The definition led toward the the disruptions brought about by the dering upon the said colonies.” Then long-lasting Labrador boundary dispute, environmental changes from European in January 1764, Governor Montagu resource-harvesting (which on the island Wilmot assured London that the Proc­ of Newfoundland undermined the econ­ lamation had been received and pub­ * For valuable advice while I was omy of Beothuk communities that were lished in the province—which, in the preparing this essay, I thank increasingly denied access to the coast), British definition of the time, covered Gillian Allen, Jerry Bannister, it remained true in general that Indigen­ James K. Hiller, and Olaf Janzen. ous history in the region was central, Significance of the Royal Proclamation, page 10

8 Canada Watch • Fall 2013 La Proclamation royale vaut-elle pour tous les Indiens de la Province de Québec?* e 24 décembre 1763, au nom du C’est le gouverneur Guy Carleton Par Denys Delâge Lroi George III d’Angleterre, le et Jean-Pierre Sawaya qui le premier a confirmé les droits surintendant des affaires indiennes, de tous les Indiens du Québec William Johnson rend publique la Denys Delâge est professeur émérite à d’alors, en vertu de la Proclamation l’Université Laval. Jean-Pierre Sawaya est Proclamation royale du 7 octobre royale. Il le fit dans une adresse aux consultant en histoire et patrimoine. 1763. Nous savons que les Six-Nations iroquoises. Quand Amérindiens domiciliés (Iroquois, l’auteur utilise le terme « molester », Algonquins, Népissingues, Hurons, La Proclamation il faut l’entendre au sens large de Micmacs) en ont été informés, royale s’appliquerait non respect des droits des Indiens: puisqu’un parchemin de cette Les Sauvs. Abenaqs. de St. Francs. Proclamation fut affiché dans chacun donc, selon Carleton, aussi bien que touts les autres Nations de leurs villages de la Province de & Tribus depdes. [du gouvernement Québec au cours des semaines qui à tous les Amérindiens de?] la Prove. de Quebec etant sous la ont suivi sa publication1. Les protectn. de sa Majé. ainsi qu’il l’a bien Algonquins et les Népissingues ont du Québec, qu’ils y voulû declarer par sa Proclamn. du 7e. exigé et obtenu que le représentant Octe. 1763 peuvent etre assurés qu’on du roi à Montréal, John Johnson, le habitent ou non de les maintiendra dans touts leur justes t fils de William Johnson, signe le temps immémorial. Droits et que le Gouvernm . fera document de la Proclamation2. Cette traduire en Justice, et poursuivera a la exigence des Algonquins implique Rigeur, tous ceux qui oseront les molester, de quelque maniere que ce qu’ils y voyaient une promesse derniers n’auraient aucun droit puisse etre. La Presente on espere (« claim ») concernant le territoire et formelle à laquelle s’engageaient sera un Avertissement pour tous ceux publiquement le roi d’Angleterre et de surcroît, si jamais ils réclamaient qui pourroint en avoir l’Intention, et son représentant. un territoire spécifique pour eux, ce previendra les facheuses consequences ne pourrait être qu’en vertu des qui en pourroint resulter5. Une différence entre les prérogatives de la Couronne qu’ils amérindiens d’occupation l’ob­tiendraient et non en vertu d’un Par « Nations et Tribus immémoriale et immigrants? titre indien3. dépendantes de la Province de Québec », nous comprenons qu’il Pourtant, même après avoir fait Thomas Gage reprit à son compte s’agit des Indiens habitant alors la afficher la Proclamation dans tous la distinction de William Johnson province de Québec. La les villages, un doute demeurait entre Indiens d’occupation Proclamation royale s’appliquerait quant à son application universelle immémoriale et immigrants tout en donc, selon Carleton, à tous les pour les Indiens du Québec d’alors. précisant que pour les premiers, leur Amérindiens du Québec, qu’ils y Cela valait-il alors pour ceux qui titre d’occupation demeurait valide habitent ou non de temps venaient d’ailleurs : Iroquois de la puisque le roi de France n’avait immémorial. région de Montréal, Abénaquis de jamais acheté leurs terres et que les celle de Trois-Rivières et Hurons de colons français ne s’étaient établis 4 La question du Lorette? William Johnson débattit parmi eux qu’avec leur autorisation . domaine du roi explicitement de cette question avec le commandant général des troupes La proclamation s’applique Une question se posa encore, cela britanniques, Thomas Gage en aux amérindiens domiciliés valait-il pour les Montagnais (Innus) janvier 1764. Il était d’avis qu’il fallait Cette distinction n’a pas été retenue du Domaine du Roi (King’s domain), distinguer les Indiens du Québec qui ultérieurement. En effet, dans leur couvrant le territoire du Saguenay- y habitent de tout temps, de ceux correspondance et dans leurs Lac Saint-Jean et de la haute et basse que les Français avaient fait venir et adresses aux chefs autochtones, les Côte Nord? L’officier Daniel Claus utilisés comme mercenaires afin de autorités britanniques ont jugé que la jugea que le Domaine du roi n’avait protéger leur colonie et d’attaquer Proclamation royale s’appliquait à pas été exclu de la Proclamation 6 celles des Anglais (« Caghnawagas tous les Autochtones du Québec et royale , ce que confirma le Conseil Abenaquis &ca [Hurons] »). Ces qu’elle les protégeait tous également. La Proclamation royale, page 10

Canada Watch • Fall 2013 9 La Proclamation royale Suite de la page 9 législatif de Québec en 17667. 1. Jean-Baptiste D’Estimauville, Québec, 4. Thomas Gage à William Johnson, New- Le titre autochtone reconnu par la 10 janvier 1797, RG 8, bob. C-2848, vol. York, 6 février 1764, JP, vol. 4, p. 318. Proclamation royale est valide 250, pt. 1, p. 66; William Van Felson à 5. Guy Carleton, Québec, 28 février 1767, puisque que le roi de France ne James Murray, Bonaventure, 10 février MG 19, F 1, bob. C-1483, vol. 21, pt. 2, l’avait jamais éteint. Il couvre tout le 1765, RG 4 A 1, vol. 12, pp. 4564-4565. pp. 54-55. territoire de la Province de Québec 2. William Johnson, « By the King A 6. Daniel Claus à John Johnson, Montréal, d’alors, de même qu’il s’applique à Proclamation, Given under my Hand 25 août 1766, MG 19, F 1, bob. C-1481, tous les Indiens qui l’habitent, peu and Seal at Arms, at Johnson-Hall, the vol. 14, pt. 1, pp. 108-109. importe l’ancienneté de leur 24th Day of December 1763 », The 7. « Extrait des minutes de la réunion du établissement. Papers of Sir William Johnson (JP), comité ad hoc du Conseil législatif de vol. 10, p. 985; « A Proclamation by the Québec sur les postes de la traite de Notes Honorable Sir William Johnson », Tadoussac », 11 octobre 1766, CO 42, Johnson Hall, 24 décembre 1763, RG 8, * Voir : Denys Delâge et Jean-Pierre vol. 5, fol. 314-318, cité dans Nelson– bob. C-2855, vol. 267, p. 121. Sawaya, Les Traités des Sept-Feux avec Martin Dawson, Lendemains de les Britanniques. Droits et pièges d’un 3. William Johnson à Thomas Gage, conquête au Royaume du Saguenay, héritage colonial au Québec, Québec, Johnson Hall, 27 janvier 1764, JP, vol. 4, Montréal, Nuit blanche,1996, pp. 276-281. Septentrion, 2001. pp. 307-308.

Significance of the Royal Proclamation continued from page 8 the area of all the later maritime prov­ inces—and would “very shortly be effected Settler encroachments not only caused profound in the distant and remote parts of this environmental and economic harm to Indigenous Government.” Wilmot’s statement made an implied distinction between “distant communities … but also led to the granting of and remote parts” and the settled or granted areas of Nova Scotia. However, land to colonists on an unprecedented scale. not only were the grants and settlements small in relation to the overall geog­ raphy, but the absence of any preced­ Increasing Colonial nothing to prevent further encroach­ ing Indigenous land surrender logic­ Settlement ments. All three of the maritime col­ ally brought the region within the gen­ In the maritime colonies, however, the onies legislated during the pre-Confed­ eral category recognized by the Proc­ real limitation on the historical appli­ eration period for the sale or lease of lamation of lands that had been nei­ cation of the Royal Proclamation’s re­ reserve lands with the ostensible pur­ ther ceded to nor purchased by the quirements for Indigenous land trans­ pose of generating funds to be used Crown, contrary to the current stric­ fer was neither logical nor legal, but for the benefit of Indigenous commun­ tures expressed by the Supreme Court was determined largely by the dispos­ ities, but in reality these funds were of Canada in its 2005 judgment in the session brought about by increasing used to facilitate further settler coloniz­ cases of R. v. Bernard Stephen and R. colonial settlement, especially during ation. The results in terms of poverty v. Marshall. Elsewhere in what became and following the Loyalist migration of and disease were predictable enough. Atlantic Canada, large areas of Labra­ the early 1780s. Settler encroachments The Royal Proclamation of 1763 had dor fell within the related category of caused profound environmental and historical implications with which both reserved lands that lay “beyond the economic harm to Indigenous com­ Indigenous and non-Indigenous inhab­ Heads or Sources of any of the rivers munities, notably through agriculture itants of present-day Atlantic Canada which fall into the Atlantic Ocean from and the disruption of transportation continue to live. Through enhanced the West or North-West.” As to the applic­ routes. It also led to the granting of land historical understandings of the provi­ ability of this or any associated provi­ to colonists on an unprecedented scale. sions that attempted to regulate Indigen­ sion of the Proclamation to the island Creation of reserves, whether on an ous land alienation, and their subver­ of Newfoundland, evidence is lacking, ad hoc basis or—as in Nova Scotia in sion by colonial authorities, it may well and no naval governor is known to have 1819—more systematically, limited ac­ prove also to be a fertile source of legal commented or ruled on the question. cess to land and resources and did activity reaching into the future.

10 Canada Watch • Fall 2013 The Royal Proclamation and the Canadiens

he Royal Proclamation of 1763 holds able to the Laws of England.” No one By Donald Fyson Tan ambiguous place in debates over has ever been able to say with certainty Quebec’s relationship with Canada. In Donald Fyson is a professor in what either of these statements meant. the Department of Historical Sciences sovereignist discourse, it is regularly Did the Royal Proclamation, or the com­ at Université Laval. evoked as a baleful reminder of British missions and instructions to the gov­ perfidy toward francophone Quebec­ ernors, intend to do away with French ers. The relatively benign military occu­ In practice, the effects civil law? Commentators at the time pation between 1759-60 and 1764 raised were divided on the issue; historians false hopes in the minds of the Cana­ of the Proclamation have never been able to come to a defin­ diens (the French-descended colonists). itive determination. The Royal Proclamation dashed these on the Canadien Things were more complicated on hopes and stamped on Canadien rights. population were quite the ground. In theory, there was indeed It took away their laws and it imposed to be only a very limited toleration of the harsh anti-Catholic measures in different from what French civil law, essentially for cases force in England and its colonies. It was between Canadiens that concerned pre- a “chape de plomb” (a leaden weight), was envisaged. Conquest issues. In practice, though, as an editorialist for Le Devoir put it the courts relied on both English com­ earlier this year, or more dramatically, mon law and French civil law, and par­ according to another commentator, an Protestants would be able to sit in it. ties argued whatever law best suited their “arrêt de mort” (a death sentence). In And Murray’s instructions explicitly dir­ case. In theory, an English common­ -law contrast, in what I call the “jovialist” ected him to promote Protestantism system had no place for Canadien no­ discourse of those who see the British among the Canadiens. Equally undeni­ taries with their French-style deeds and Conquest of Quebec as unreservedly able, though, is that in practice, the contracts. In practice, Canadien nota­ beneficial, the Proclamation is often effects of the Proclamation on the Can­ ries carried on much as before the Con­ barely mentioned at all. The emphasis adien population were quite different quest—Canadien families regulated their is put on the Quebec Act, which restored from what was envisaged. Two examples affairs according to pre-Conquest norms, Canadien law and Canadien civil rights. can help illustrate this point: on the and even British merchants had regu­ At best, it is suggested that by introduc­ one hand, the civil law and on the other, lar recourse to the notarial system. In ing English public law, the Proclama­ the civil rights of Roman Catholics. theory, there were to be strict limits on tion also introduced English liberties Canadien lawyers, who could essential­ such as habeas corpus (the right to The Civil Law ly only have Canadien clients. In prac­ contest unlawful imprisonment) and The civil law of pre-Conquest Canada, tice, Canadien lawyers acted for both trial by jury. based on the Custom of Paris and reg­ Canadien and British clients, just like The reality was, of course, more com­ ulating matters such as property and British lawyers, and pleaded both French plex. It is undeniable that initial British family relations, is often seen as one civil law and English common law. In policy toward the Canadiens was to of the traditional pillars of Canadien short, the civil law survived, and formed restrain them and, eventually, to assim­ and, later, francophone Quebec iden­ one part of the mixed, hybrid system ilate them by converting them to Prot­ tity. The Royal Proclamation, accord­ that characterizes Quebec law. Yet, it estantism. This can be seen both in ing to some, attacked the very founda­ was certainly a fundamental shift from the Royal Proclamation and in other tions of this identity by abolishing the the pre-­Conquest legal system, one to associated documents issued at about civil law and imposing English law in which Canadiens had to adapt as best the same time, such as the commis­ one fell swoop, underscoring the injus­ they could. sion and instructions of the first civil tice of the British and their Conquest. governor, James Murray. For example, This is based mainly on the Proclama­ The Civil Rights of the very limited boundaries the Proc­ tion’s very general promise that all of Roman Catholics lamation set for the new province of the colony’s inhabitants could have “the The same sort of disjuncture between Quebec were justified in part by the Enjoyment of the Benefit of the Laws theory and reality can be seen on the need to watch over the Canadien pop­ of our Realm of England” and its vague issue of Roman Catholic civil rights. In ulation. As well, the Proclamation, com­ statement that the colony’s courts were the classic “miserabilist” view of the ef­ mission and instructions provided for to judge cases “according to Law and fects of the British Conquest of Quebec,­ calling an elected assembly, but only Equity, and as near as may be agree­ The Canadiens, page 12

Canada Watch • Fall 2013 11 The Canadiens continued from page 11 the Royal Proclamation took away the handful of Protestant adult male civil­ civil rights of Catholic Canadiens. The The harsh ians present at the beginning, or even most commonly cited example of this anti-Catholicism the hundreds in the colony by the mid- is the imposition of the provisions of 1770s. the English anti-Catholic Test Acts. The that some have Hence, colonial administrators turned Test Acts required anyone seeking pub­ to Catholic Canadiens to fill a wide range lic office or employment to abjure the read into the Royal of public posts, especially those in the Catholic faith through a series of oaths lower levels of the colony’s government. and declarations. As one commenta­ Proclamation was This included some, such as court tor suggested, this meant that even the clerks, which a strict reading of the gov­ humblest town crier in Quebec could tempered by the ernors’ commissions would suggest not be a Catholic, and Catholics, at least practical necessities should only be held by Protestants, and at first, could not even sit on the juries even a few higher positions, including that were so central to the British liber­ of rule. two judges. Some positions, notably ties that supposedly accompanied the parish bailiffs, were occupied right across Conquest. the colony by hundreds of Canadien Yet, the Royal Proclamation men­ Great Britain in matters relating to Cathol­ farmers. Canadiens also most certainly tioned nothing whatsoever about the icism. But as early as 1765, the English could and did serve on juries. By vir­ Test Acts or any other anti-Catholic law officers of the Crown declared that tue of their sex, Canadien women were measures. Instead, this interpretation the English anti-Catholic laws did not excluded from all such positions; how­ developed from the few ambiguous apply in Quebec. With such contradic­ ever, this was no different from their words in the Proclamation regarding tory messages, the early governors pro­ treatment under the French régime. the benefit of the laws of England, along ceeded cautiously. Their commissions Did this mean that Catholics were with the 1763 Treaty of Paris, which guar­ and instructions took a clearly anti-­ treated equally to Protestants? Certainly anteed Canadiens the right to practise Catholic stance. At the same time, they not. After all, they were excluded from their religion “as far as the Laws of Great explicitly imposed oaths and declara­ most of the highest positions, includ­ Britain permit.” tions only on the members of the Gov­ ing what passed for a legislature—the However, did this include English ernor’s Council and on the personnel Governor’s Council. At the same time, anti-Catholic legislation? Again, even of the courts, including judges. In prac­ the harsh anti-Catholicism that some contemporary commentators could not tice, the governors stuck only to these have read into the Royal Proclamation agree. In 1763, the English minister most restrictions, and even then, not entirely. was tempered by the practical neces­ directly responsible for the Proclama­ Not because they were particularly tol­ sities of rule and the willingness of Can­ tion, Lord Egremont, directed Gover­ erant of Catholicism; rather, it was impos­ adiens to fill the positions available to nor Murray to adhere to the laws of sible to rule the colony with only the them.

Complexity and Ambiguity The impact of the Royal Proclamation on the Canadien population of Que­ Canadian Studies Network bec is far from a simple question, then. And it cannot be reduced to ideologi­ cally driven certitudes, whether jovial­ Réseau d’études canadiennes ist or miserabilist. Extrapolating from he CSN-REC facilitates communication a literal and legalistic reading of the Proclamation is of little help, especially Tamong Canadianists and holds an because even contemporary observ­ annual meeting to discuss issues of ers recognized that it was a very unclear mutual concern and new developments and poorly drafted document. Far more in Canadian Studies. important is the study of what actually occurred on the ground. Above all, such studies reveal the complex and ambig­ http://www.csn-rec.ca uous effects of the Royal Proclamation on the lives of Canadiens.

12 Canada Watch • Fall 2013 The Haundenosaunee/Six Nations and the Royal Proclamation of 1763 other native nations. Instead, the Haude­ The Covenant Chain By Keith Jamieson Relationship nosaunee relied on the relationship Keith Jamieson is the director of the established by the Covenant Chain. he Haudenosaunee/Six Nations Six Nations Legal Consortium. Thave a very different understand­ ing of the Royal Proclamation of 1763. Pledge of the Crown Belt While the document stated the process They entered into the This protocol was also respected dur­ by which the Crown would engage Native Covenant Chain, a ing the American Revolution. Follow­ people in acquiring lands for settle­ ing the defeat of the British, the British ment, it also asserted the sovereignty relationship of “respect, compensated the Haudenosaunee as of the Crown over all people in North their allies with the Haldimand Deed America. The Haudenosaunee would trust and friendship.” lands. These lands were acquired from have considered this unilateral procla­ the Mississauga under the prescribed mation not applicable to them. It was terms of the Royal Proclamation and contrary to the long-standing Coven­ awarded to the Haudenosaunee. As far tory that spanned most of the Great ant Chain relationship they had already as the Haudenosaunee are concerned, Lakes and into the Ohio River Valley. agreed to with the Crown. this act suggests that the Covenant Chain By covering such an expanse of land, In order to fully grasp this assertion, relationship was still intact as separate one could suggest that the Nanfan Treaty one needs to understand the progres­ from the Royal Proclamation decades was an effort by the British to counter sion of wampum belt agreements over after the Proclamation was issued. In French ambitions of their domination time—those agreements that preceded the War of 1812, the British and the over the fur trade and to assert British the Proclamation and those that fol­ Haudenosaunee once again invoked authority. Between 1667 and 1763, the lowed. The Two Row wampum belt was the Covenant Chain. Following the sign­ Covenant Chain between the Haude­ formalized between the Haudenosaunee ing of the Treaty of Ghent, the Crown nosaunee and the British was restored and the Dutch in 1613, as a foundation met with the Haudenosaunee and in on several occasions. On each occa­ for the relationship between two sov­ the spring of 1815, presented them with sion, the Covenant was renewed fol­ ereign nations, represented by their the “Pledge of the Crown Belt,” which lowing prescribed protocols. individual governments. In 1667, the reiterated that all their possessions, There is a progression of ideas and British, having supplanted the Dutch rights, and privileges (land, etc.) would concepts that flows from this series of in North America, sought to secure an be restored to them as they had been significant events that speak to a Haude­ alliance with the Haudenosaunee for before 1812. nosaunee perception of the Royal Proc­ trade purposes. They entered into the The Crown in Canada has enshrined lamation of 1763. Their approach to this Covenant Chain, a relationship of “respect, the Royal Proclamation of 1763 as a document is perhaps best evidenced trust and friendship.” As part of this foundational constitutional document. by the Haudenosaunee’s noticeable relationship, the Haudenosaunee stip­ In privileging this document, the Crown absence (except for seven Seneca war ulated, “We will not be as Father and and the Canadian government effect­ chiefs) at the Treaty of Niagara in 1764. Son, but like Brothers.” Simultaneously, ively ignore those agreements and rela­ By 1764, the Seven Years War had ended the French had established trading rela­ tionships that preceded and followed with the defeat of the French. The suc­ tionships with nations to the northeast. it. Today, the Haudenosaunee of the cessive renewals of the Covenant Chain Grand River look to the Covenant Chain and the British victory in the Seven relationship and the Nanfan Treaty as Beaver Hunting Grounds Years War restored the Nanfan Trea­ informing negotiations with the Crown In 1701, the British entered into the Nan­ ty’s Beaver Hunting Grounds. The Royal while making virtually no reference to fan Treaty with the nations of the Great Proclamation was issued by the Crown the Royal Proclamation of 1763. Lakes. This treaty established the “Bea­ to address the French and to state the ver Hunting Grounds,” a territory that terms that would be taken to treaty with Learn more about Canada was acknowledged as shared among First Nations going forward. The Haude­ Watch and the Robarts Centre for the nations that participated in the treaty. nosaunee respected the Two Row wam­ Canadian Studies at This included the Haudenosaunee. The pum belt by not interfering with how http://robarts.info.yorku.ca Beaver Hunting Grounds was a terri­ the British dealt with the French and

Canada Watch • Fall 2013 13 The Royal Proclamation of 1763 hereas We have taken into Our Royal Form as is used and directed in those Col­ 1763, OCTOBER 7. WConsideration the extensive and valu­ onies and Provinces in America, which are able Acquisitions in America, secured to A Proclamation under Our immediate Government; and We Our Crown by the late Definitive Treaty of George r. have also given Power to the said Gover­ Peace, concluded at Paris the Tenth Day nors, with the Consent of Our said Coun­ of February last, and being desirous, that cils, and the Representatives of the People, all Our loving Subjects, as well of Our King­ Leagues of the Coast from the River Apala­ so to be summoned as aforesaid, to make, doms as of Our Colonies in America, may chicola to Lake Pentchartain; to the West­ constitute, and ordain Laws, Statutes, and avail themselves, with all convenient Speed, ward, by the said Lake, the Lake Mauripas, Ordinances for the Publick Peace, Welfare, of the great Benefits and Advantages which and the River Mississippi; to the Northward, and Good Government of Our said Col­ must accrue therefrom to their Commerce, by a Line drawn due East from that Part of onies, and of the People and Inhabitants Man­ufactures,­ and Navigation; We have the River Mississippi which lies in Thirty thereof, as near as may be agreeable to the thought fit, with the Advice of Our Privy one Degrees North Latitude, to the River Laws of England, and under such Regula­ Council, to issue this Our Royal Proclama­ Apalachicola or Chatahouchee; and to the tions and Restrictions as are used in other tion, hereby to publish and declare to all Eastward by the said River. Colonies: And in the mean Time, and until Our loving Subjects, that We have, with the Fourthly. The Government of Grenada, such Assemblies can be called as afore­ Advice of Our said Privy Council, granted comprehending the Island of that Name, said, all Persons inhabiting in, or resorting Our Letters Patent under Our Great Seal of together with the Grenadines, and the Islands to Our said Colonies, may confide in Our Great Britain, to erect within the Countries of Dominico, St. Vincents and Tobago. Royal Protection for the Enjoyment of the and Islands ceded and confirmed to Us by And, to the End that the open and free Benefit of the Laws of Our Realm of Eng­ the said Treaty, Four distinct and separate Fishery of Our Subjects may be extended land; for which Purpose, We have given Governments, stiled and called by the Names to and carried on upon the Coast of Lab­ Power under Our Great Seal to the Gover­ of Quebec, East Florida, West Florida, and rador and the adjacent Islands, We have nors of Our said Colonies respectively, to Grenada, and limited and bounded as fol­ thought fit, with the Advice of Our said Privy erect and constitute, with the Advice of Our lows; viz. Council, to put all that Coast, from the River said Councils respectively, Courts of Judi­ First. The Government of Quebec, bounded St. John’s to Hudson’s Straights, together cature and Publick Justice, within Our said on the Labrador Coast by the River St. John, with the Islands of Anticosti and Madelaine, Colonies, for the hearing and determining and from thence by a Line drawn from the and all other smaller Islands lying upon all Causes, as well Criminal as Civil, accord­ Head of that River through the Lake St. John the said Coast, under the Care and Inspec­ ing to Law and Equity, and as near as may to the South End of the Lake nigh Pissin; tion of Our Governor of Newfoundland. be agreeable to the Laws of England, with from whence the said Line crossing the We have also, with the Advice of Our Liberty to all Persons who may think them­ River St. Lawrence and the Lake Champlain Privy Council, thought fit to annex the Islands selves aggrieved by the Sentences of such in Forty five Degrees of North Latitude, of St. John’s, and Cape Breton or Isle Royale, Courts, in all Civil Cases, to appeal, under passes along the High Lands which divide with the lesser Islands adjacent thereto, to the usual Limitations and Restrictions, to the Rivers that empty themselves into the Our Government of Nova Scotia. Us in Our Privy Council. said River St. Lawrence, from those which We have also, with the Advice of Our We have also thought fit, with the Advice fall into the Sea; and also along the North Privy Council aforesaid, annexed to Our of Our Privy Council as aforesaid, to give Coast of the Baye des Chaleurs, and the Province of Georgia all the Lands lying unto the Governors and Councils of Our Coast of the Gulph of St. Lawrence to Cape between the Rivers Attamaha and St. Mary’s. said Three New Colonies upon the Conti­ Rosieres, and from thence crossing the And whereas it will greatly contribute nent, full Power and Authority to settle and Mouth of the River St. Lawrence by the West to the speedy settling Our said new Gov­ agree with the Inhabitants of Our said New End of the Island of Antiocosti, terminates ernments, that Our loving Subjects should Colonies, or with any other Persons who at the aforesaid River of St. John. be informed of Our Paternal Care for the shall resort thereto, for such Lands, Tene­ Secondly. The Government of East Flor­ Security of the Liberties and Properties of ments, and Hereditaments, as are now, or ida, bounded to the Westward by the Gulph those who are and shall become Inhabit­ hereafter shall be in Our Power to dispose of Mexico, and the Apalachicola River; to ants thereof; We have thought fit to publish of, and them to grant to any such Person the Northward, by a Line drawn from that and declare, by this Our Proclamation, that or Persons, upon such Terms, and under Part of the said River where the Chata­ We have, in the Letters Patent under Our such moderate Quit-Rents, Services, and houchee and Flint Rivers meet, to the Source Great Seal of Great Britain, by which the Acknowledgements as have been appointed of St. Mary’s River, and by the Course of said Governments are constituted, given and settled in Our other Colonies, and under the said River to the Atlantick Ocean; and express Power and Direction to Our Gov­ such other Conditions as shall appear to to the Eastward and Southward, by the Atlan­ ernors of Our said Colonies respectively, Us to be necessary and expedient for the tick Ocean, and the Gulph of Florida, includ­ that so soon as the State and Circumstances Advantage of the Grantees, and the Improve­ ing all Islands within Six Leagues of the of the said Colonies will admit thereof, they ment and Settlement of our said Colonies. Sea Coast. shall, with the Advice and Consent of the And whereas We are desirous, upon all Thirdly. The Government of West Flor­ Members of Our Council, summon and call Occasions, to testify Our Royal Sense and ida, bounded to the Southward by the Gulph General Assemblies within the said Gov­ Approbation of the Conduct and Bravery of Mexico, including all Islands within Six ernments respectively, in such Manner and of the Officers and Soldiers of Our Armies,

14 Canada Watch • Fall 2013 and to reward the same, We do hereby com­ beyond the Heads or Sources of any of the ernment, they shall be purchased only for mand and impower Our Governors of Our Rivers which fall into the Atlantick Ocean the Use and in the Name of such Propri­ said Three New Colonies, and all other Our from the West and North-West, or upon any etaries, conformable to such Directions Governors of Our several Provinces on the Lands whatever, which, not having been and Instructions as We or they shall think Continent of North America, to grant, with­ ceded to, or purchased by Us as aforesaid, proper to give for that Purpose: And We out Fee or Reward, to such Reduced Offi­ are reserved to the said Indians, or any of do, by the Advice of Our Privy Council, cers as have served in North America dur­ them. declare and enjoin, that the Trade with the ing the late War, and to such Private Sol­ And We do further declare it to be Our said Indians shall be free and open to all diers as have been or shall be disbanded Royal Will and Pleasure, for the present as our Subjects whatever; provided that every in America, and are actually residing there, aforesaid, to reserve under Our Sovereignty, Person, who may incline to trade with the and shall personally apply for the same, Protection, and Dominion, for the Use of said Indians, do take out a Licence for carry­ the following Quantities of Lands, subject the said Indians, all the Lands and Territo­ ing on such Trade from the Governor or at the Expiration of Ten Years to the same ries not included within the Limits of Our Commander in Chief of any of Our Col­ Quit-Rents as other Lands are subject to in said Three New Governments, or within onies respectively, where such Person shall the Province within which they are granted, the Limits of the Territory granted to the reside; and also give Security to observe as also subject to the same Conditions of Hudson’s Bay Company, as also all the Lands such Regulations as We shall at any Time Cultivation and Improvement; viz. and Territories lying to the Westward of the think fit, by Ourselves or by Our Commis­ To every Person having the Rank of a Sources of the Rivers which fall into the saries to be appointed for this Purpose, to Field Officer, Five thousand Acres. — To Sea from the West and North West, as afore­ direct and appoint for the Benefit of the every Captain, Three thousand Acres. — said; and We do hereby strictly forbid, on said Trade; And We do hereby authorize, To every Subaltern or Staff Officer, Two Pain of Our Displeasure, all Our loving Sub­ enjoin, and require the Governors and Com­ thousand Acres. — To every Non-Commis­ jects from making any Purchases or Set­ manders in Chief of all Our Colonies respect­ sion Officer, Two hundred Acres. — To every tlements whatever, or taking Possession of ively, as well Those under Our immediate Private Man, Fifty Acres. any of the Lands above reserved, without Government as those under the Govern­ We do likewise authorize and require Our especial Leave and Licence for that ment and Direction of Proprietaries, to grant the Governors and Commanders in Chief Purpose first obtained. such Licences without Fee or Reward, tak­ of all Our said Colonies upon the Conti­ And We do further strictly enjoin and ing especial Care to insert therein a Con­ nent of North America, to grant the like require all Persons whatever, who have dition, that such Licence shall be void, and Quantities of Land, and upon the same Con­ either wilfully or inadvertently seated them­ the Security forfeited, in Case the Person, ditions, to such Reduced Officers of Our selves upon any Lands within the Coun­ to whom the same is granted, shall refuse Navy, of like Rank, as served on Board Our tries above described, or upon any other or neglect to observe such Regulations as Ships of War in North America at the Times Lands, which, not having been ceded to, We shall think proper to prescribe as afore­ of the Reduction of Louisbourg and Que­ or purchased by Us, are still reserved to said. bec in the late War, and who shall person­ the said Indians as aforesaid, forthwith to And We do further expressly enjoin and ally apply to Our respective Governors for remove themselves from such Settlements. require all Officers whatever, as well Mili­ such Grants. And whereas great Frauds and Abuses tary as those employed in the Management And whereas it is just and reasonable, have been committed in the purchasing and Direction of Indian Affairs within the and essential to Our Interest and the Secur­ Lands of the Indians, to the great Prejudice Territories reserved as aforesaid for the Use ity of Our Colonies, that the several Nations of Our Interests, and to the great Dissatis­ of the said Indians, to seize and apprehend or Tribes of Indians, with whom We are faction of the said Indians; in order there­ all Persons whatever, who, standing charged connected, and who live under Our Pro­ fore to prevent such Irregularities for the with Treasons, Misprisions of Treason, Mur­ tection, should not be molested or disturbed future, and to the End that the Indians may ders, or other Felonies or Misdemeanours, in the Possession of such Parts of Our Domin­ be convinced of Our Justice, and deter­ shall fly from Justice, and take Refuge in ions and Territories as, not having been mined Resolution to remove all reasonable the said Territory, and to send them under ceded to, or purchased by Us, are reserved Cause of Discontent, We do, with the Advice a proper Guard to the Colony where the to them, or any of them, as their Hunting of Our Privy Council, strictly enjoin and Crime was committed of which they stand Grounds; We do therefore, with the Advice require, that no private Person do ­presume accused, in order to take their Tryal for the of Our Privy Council, declare it to be Our to make any Purchase from the said Indi­ same. Royal Will and Pleasure, that no Governor ans of any Lands reserved to the said Indi­ Given at Our Court at St. James’s, the or Commander in Chief in any of Our Col­ ans, within those Parts of Our Colonies Seventh Day of October, One thousand onies of Quebec, East Florida, or West Flor­ where We have thought proper to allow seven hundred and sixty three, in the Third ida, do presume, upon any Pretence what­ Settlement; but that if, at any Time, any of Year of Our Reign. ever, to grant Warrants of Survey, or pass the said Indians should be inclined to dis­ God Save the King any Patents for Lands beyond the Bounds pose of the said Lands, that same shall be of their respective Governments, as described purchased only for Us, in Our Name, at in their Commissions; as also, that no Gov­ some publick Meeting or Assembly of the London: Printed by Mark Baskett, ernor or Commander in Chief in any of Our said Indians to be held for that Purpose by Printer to the King’s most Excellent other Colonies or Plantations in America, the Governor or Commander in Chief of Majesty; and by the Assigns of Robert do presume, for the present, and until Our Our Colonies respectively, within which Baskett. 1763. http://www.aadnc-aandc further Pleasure be known, to grant War­ they shall lie: and in case they shall lie .gc.ca/eng/1370355181092/ rants of Survey, or pass Patents for any Lands within the Limits of any Proprietary Gov­ 1370355203645.

Canada Watch • Fall 2013 15 Created by Articulate Eye Design, Saskatoon for J.R. Miller, Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada (Toronto: University of Toronto Press, 2009), p. 68.

16 Canada Watch • Fall 2013 Parchment, wampum, letters, and symbols: Expanding the parameters of the Royal Proclamation commemoration

his year marks the 250th anniver­ concluded a treaty with the Anishinaa­ By Alan Ojiig Corbiere, Tsary of the Royal Proclamation, but Bne Doodeman, Mchigiing njibaa beg that required the British to pay trib­ for some reason it does not mark the ute to the owners of the land by way 250th anniversary of the action taken Alan Corbiere is the Anishinaabemowin of giving presents annually. These efforts Revival Program Coordinator at Lakeview by Odaawaa Chief Pontiac and others. School, M’Chigeeng First Nation. by Sir William Johnson, however, were A piece of paper signed by King George unravelled by General Jeffrey Amherst III receives more attention than the when he ordered that the “Indian pres­ actions of this chief and his colleagues. It is a legal document ents” be discontinued following the Pontiac loses out in public conscious­ British Conquest of New France. ness and exposure to a piece of parch­ designed as a ment that does not have any Anishi­ Pontiac’s War and naabe signatories. foundation on which the Treaty of Niagara The Royal Proclamation has been By 1763, the Anishinaabeg’s dissatis­ called the Magna Carta of Indian rights the British could faction with British policy soon turned and Aboriginal title. However, it was commence to anger and boiled over into the war not made for the Anishinaabeg (Ojibwe, that historians often call Pontiac’s Rebel­ Odaawaa, Potowatomi, Nipissing, Mis­ dispossessing Native lion. The Anishinaabeg and many other sissauga, Algonquin, Saulteux, and nations captured a number of forts; but Toughkawmiwans) nor the Haudeno­ American nations of Pontiac and the confederacy were unable saunee, nor any other nations (Menom­ to take over Fort Detroit and Fort Pitt. inee, Sauk, Fox, Cree, Sioux, Ho-Chunk); their land, to affect Despite this, the resistance sent a pow­ it was made for the settlers and col­ their Manifest Destiny. erful message to the British—a message onial officials. It is a legal document that forced the British to adjust their designed as a foundation on which the policies. Sir William Johnson, cultural British could commence dispossess­ In September 1761, Sir William John­ intermediary par excellence, advised ing Native American nations of their son, the newly appointed superinten­ his superior, General Thomas Gage, land, to affect their Manifest Destiny. dent of Indian Affairs for northern Brit­ in February 1764, that to effect a peace, ish North America, had come to rem­ the British must use the diplomatic pro­ Tentative Steps to Peace: edy the situation and treat with the cess of the nations, Anishinaabe – British Anishinaabeg at Detroit. Sir William, [a]t this Treaty wheresoever held Relations After 1760 escorted by Mississauga Chief Wabbi­ we should tye [sic] them down The Anishinaabeg did not readily accept commicott, attempted at that time to according to their own forms of English plans. In fact, Alexander Henry have 13 nations, including the Odaawaa, which they take the most notice, vividly recounted his first meeting in Ojibwe, Huron, and Potawatomi, enter for Example by Exchanging a very 1761 with the Michilimackinac Ojibwe into that “antient [sic] Covenant Chain large belt with some remarkable & Chief Minavavana (Minwewe aka Gichi- formerly existing between us.”2 intelligible figures thereon, Expressive of the occasion which Ojibwe). Minavavana clearly stated to At this point, the Odaawaa Chief, should be always shewn at public Macatepilesis [Makatepinesi], the Huron Henry: Meetings, to remind them of their Chief, Anaiasa, the Mississauga Chief, Englishman, your king has never promises. … The use of frequent Wabbicommicott, and others addressed sent us any presents, nor entered Meetings with Indns [sic] is here into any treaty with us, wherefore the British as “Brother,” not “Father.” pointed out, They want the use of he and we are still at war; and until Each of these chiefs professed their letters, consequently they must he does these things we must fidelity to the British and claimed that frequently be reminded of their consider that we have no other they “are all determined as one man promises, & this custom they keep father, nor friend among the white to hold fast by the Covenant Chain for­ up strictly, amongst themselves, 1 men than the King of France. ever.”3 It seemed that the British had Parchment, wampum, page 18

Canada Watch • Fall 2013 17 Parchment, wampum continued from page 17 since the neglect of the one, will prove a breach of the other.4 It has only been a recent event that the chiefs, While Johnson stated that the pur­ based on advice of lawyers, have used the pose of the frequent meetings was to remind the Anishinaabeg of their prom­ Royal Proclamation as a legal mechanism, ises, it actually worked the other way instead of the wampum belts, thus supplanting too: the Anishinaabeg took the oppor­ tunity to remind the British of their the “records of our old men.” promises.­ The intelligible symbols woven in wampum were two men holding hands, tated the use of memory and mnemon­ used the Royal Proclamation as a legal flanked by links of a chain with the date ic devices. The British, and the current mechanism, instead of the wampum 1764. Johnson assembled representa­ successor Canadian government, priv­ belts, thus supplanting the “records of tives from many nations at Niagara in ileges written documentation over An­ our old men.” July 1764 and, on behalf of King George ishinaabe belts, pipes, and records. It In the summer of 2004, the 240th III, entered into a treaty relationship is only recently that the courts have anniversary of the treaty known as the with them. At the conclusion of this started to admit such important items Covenant Chain, I showed replica belts meeting, Johnson distributed medals as evidence. In 1852, Ojibwe Chief Shin­ to the respected and revered elder Aki­ that the Anishinaabeg later used as a gwaukonse clearly declared the para­ iwinini to see whether he had heard mnemonic device of the treaty proceed­ mount importance of these items to anything about this treaty and these ings. The various nations, on their part, the Anishinaabe understanding of the belts. I held them out to him but he just delivered calumet pipes, wampum, and treaty relationship. On hearing of the pointed and said, “Maybe that is why beaver blankets to Johnson. discontinuation of gifts from the Brit­ we have had such a hard time.” In Johnson’s speech to the assem­ ish, he pointedly stated: bled nations, he did not directly trans­ Father—We salute you, we beg of Notes late the Royal Proclamation. Instead, you to believe what we say for 1. Milo Milton Quaife, ed., Alexander he used figurative speech and meta­ though we cannot put down our Henry’s Travels and Adventures in the phorical language. Johnson spoke of thoughts on paper as you our Years 1760 – 1776 (Chicago: Lakeside an unextinguishable fire, a poker, an Wampums and the records of our Press, 1921), 45. unending supply of wood, a mat to old men are as undying as your 5 2. LAC RG 10, vol. 6, Proceedings of a Treaty recline upon, and a ship that would writings and they do not deceive. held at Detroit, September 9, 1761. always be filled with “warmth” or neces­ For years after 1852, the chiefs tried 3. Ibid. sary goods. Johnson also compared to have this foundational treaty (known the British nation, and the King, to the as the Covenant Chain) abided by. The 4. The Papers of Sir William Johnson, rising red sun, represented emblemat­ chiefs submitted numerous petitions, vol. IV, p. 330, Johnson to Gage, ically by the British soldiers wearing which fell on deaf ears. Eventually, the February 19, 1764. red. He also—unequivocally—stated that original belts disappeared, and the chiefs 5. Speeches of Chiefs in response to the King acknowledged that the nations no longer used the belts in “public meet­ hearing the discontinuation of Indian owned the land and offered the nations ings” with colonial officials. It has only Presents, Manitowaning 1852 [LAC RG “protection” from unscrupulous trad­ been a recent event that the chiefs, 10, vol. 198, pt. 1, nos. 6101 – 6200, ers and speculators. based on the advice of lawyers, have pp. 116405 – 116408].

The Legacy of the Treaty of Niagara Real-world challenges Since the delivery of the wampum at Niagara, this agreement has been “al­ demand different angles, ways shewn at public Meetings,” and recited in council, and therefore, con­ different approaches, sidered an active, living treaty. Note and different attitudes. that the councils did not use a printed copy of the Royal Proclamation; the www.yorku.ca/research Anishnaabeg’s “want of letters” dic­

18 Canada Watch • Fall 2013 Reflections on 1763 in Far Northern Ontario

Fraught Relationships schooling, heavily steeped in Christi­ By John S. Long he tensions in the Royal Proclama­ anity. Boarding schools (later called John S. Long is a professor in the Schulich residential schools) and child welfare Ttion have ebbed and flowed over School of Education at Nipissing University. the past 250 years and, of course, are laws were employed to facilitate what still with us today. The treaty relation­ we now recognize as genocide in this ships that unite First Peoples with other The treaty context. Canadians are inherently problematic, In 1871, when the first of the post- as a result of our differing understand­ relationships that Confederation treaties was signed, very ings (or perhaps outright ignorance) different principles of consent were at of history. Notwithstanding the Proc­ unite First Peoples work. Adams G. Archibald, a Father of lamation, and the gubernatorial proc­ with other Canadians Confederation and at different times lamations that reinforced it, many of lieutenant governor of Manitoba and the early treaties in what is now Ontario are inherently Nova Scotia, became frustrated on his were fraught with dissatisfaction on the third day of treaty-making at Lower Fort part of First Peoples, even before 1812. problematic, due to Garry. He told spokesmen for the one After Confederation, treaty-makers some­ thousand people before him: times resorted to almost take-it-or-leave- our differing [W]hether they wished it or not, it bargaining. Following the 1888 St. understandings (or immigrants would come in and fill Catherine’s Milling decision, outright up the country; that every year deception sometimes led to diametri­ perhaps outright from this one[,] twice as many in cally opposed written and oral versions number as their whole people of the treaty relationship. The respect­ ignorance) of history. there assembled would pour into ful principles embodied in the Procla­ the Province, and in a little while would spread all over it, and that mation languished for decades. now was the time for them to to be paid.” The Indigenous party was According to the Proclamation, Indi­ come to an arrangement. genous lands could be acquired only to be given one copy of the treaty, together if the occupants were “inclined to dis­ with any “Descriptive Plans”; “by that In this context, it is no surprise that pose of [them] at some public Meet­ means [they] will always be able to the treaty-signing was delayed over how ing or Assembly of the said Indians, to ascertain what they have sold and future to select and allocate reserves. “In defin­ be held for that Purpose”—implying that Uneasiness and Discontents [will] be ing the limits of their reserves,” Archibald free, informed, prior, and collective thereby avoided.” wrote, “they wished to have about two- consent were essential. In 1794, Sir Guy thirds of the Province.” Sharing the Carleton, 1st Baron Dorchester, issued “Outsiders” land, in Aboriginal eyes, apparently additional instructions. Treaty deliber­ The Proclamation was enhanced in a meant keeping most of it, so they could ations must be carried out “with great very different way after 1835. A cluster maintain their cultures and economies. Solemnity and Ceremony according to of assimilative doctrines, formulated the Ancient Usages and Customs of the by the British House of Commons Select The Pleasure of the Crown Indians, the Principal Chiefs and lead­ Committee on Aborigines, started to When the highest court in the British ing Men of the Nation or Nations to be applied throughout Britain’s settler Empire decreed in St. Catherine’s Mill- whom the lands being first assembled.” colonies. Aboriginal peoples would be ing and Lumber Company v. The Queen If the governor himself could not attend, treated as “outsiders” who needed to in 1888 that Aboriginal title depended he could appoint two representatives. become integrated into modern soci­ solely on the pleasure of the Crown, The superintendent general of Indian ety as labourers, domestic servants, or there was no real incentive to explain affairs or his deputy was to use “such farm hands. They would be regulated the full nature of Treaty Nos. 8 through Interpreters as best understand the Lan­ through separate laws until they were 11 to the Indigenous peoples those treat­ guage of the Nation or Nations treated ready to be citizens. And so long as ies sought to encapsulate. With or with­ with.” Treaties were to be signed in trip­ they were wards of the government, out their signatures on the parchment, licate “in Public Council” only “[a]fter they would need government-appointed the Crown could erase Aboriginal title explaining to the Indians the Nature “protectors.” Maintaining order and at will. And consent could be manu­ and extent of the Bargain, the situation control was paramount. Aboriginal chil­ factured. and bounds of the Lands and the price dren would be radically changed through Reflections, page 20

Canada Watch • Fall 2013 19 Reflections continued from page 19 By 1905, when Treaty No. 9 was ­sign­ed, family will have unmolested use of its treaty-making meant hours, not days One question traditional territory, will be able to edu­ (or years, in the case of Treaty No. 3). always preceded cate its children in the ancestral lan­ At Fort Hope, a question from Moonias, guage, and will be allowed to collec­ a prominent member of the local An­ treaty-signing. What tively resolve its conflicts. ishinaabe community, suggests that the notion that they would “cede, release, about our hunting, An Oral Treaty surrender and yield up” their lands for­ What was the purpose of Treaty No. 9? ever was not understood: trapping and fishing? The commissioners simply said that the He said that ever since he was able King, who wished the First Peoples to to earn anything, and that was from be happy and prosperous, had sent them. the time he was very young, he had In contrast to this oral explanation, the As a sign of his good intentions, there never been given something for parchment said that their hunting, trap­ was a feast of bannock and tea, a flag nothing; that he always had to pay ping, and fishing could be curtailed in for their chief, and cash—$8 upon sign­ for everything that he got, even if it two ways. First, it was subject to regu­ ing the treaty, and thereafter $4 per per­ was only a paper of pins. “Now,” he lation—that is, by the laws of the Domin­ son in perpetuity. No mention was made said, “you gentlemen come to us ion. Second, harvesting would not be of the Indian Act. Treaty No. 9 was not from the King offering to give us permitted on lands, which might one explained at a public meeting. There benefits for which we can make no day be “taken up” for mining, forestry, was little concern for the quality of the return. How is this?” rail­roads, town sites, and the like. interpreters—who do not seem to have Reserve locations, and perhaps their Preceding the marks that signify Indi­ been asked to explain the words on the size, were discussed only after the treaty genous concurrence with the treaty, at parchments. The Indigenous signato­ was signed. On the parchment that was each of the six locations where Treaty ries were not given a copy of it; and signed, a blanket extinguishment clause No. 9 was signed that summer, are the there was no plan or map to indicate was substituted for any careful delin­ words “after having been first inter­ what lands had been surrendered. The eation of any lands surrendered. At Mar­ preted & explained.” A different inter­ Proclamation was seemingly ignor­ed. ten Falls, William Whitehead signed preter was used at each signing. Prior If the King’s red carpet was rolled out the treaty—but afterward, he twice spoke to signing, the treaty was explained only in 1763, by 1905 it was rolled up and out, demanding a reserve for his small to the few who would sign. Even with left under a desk in Ottawa at treaty time. band for many miles on both sides of these limitations, one question always Yet, it seems that there was consen­ the Albany River. “[I]t was put forcibly preceded treaty signing. What about sual agreement. An oral treaty of peace before them,” wrote Daniel George Mac­ our hunting, trapping, and fishing? The and friendship was concluded, signi­ Martin, a treaty commissioner nomi­ answer—the promise—always given, that fied by gift-giving and explicitly guar­ nated by Ontario, “that they could hunt these activities would not be curtailed. anteeing continued use of ancestral wherever they pleased.” This assurance meant much more than lands. This appears to be what was That is not what the parchment said. feeding one’s family. It meant that each offered—and accepted.

As part of our partnership with Canada Watch, each essay is also available individually on ActiveHistory.ca at http://activehistory.ca/papers/the-royal-proclamation-in-historical-context

20 Canada Watch • Fall 2013 “The said Lands … shall be purchased only for Us”: The effect of the Royal Proclamation on government ments (Upper Canadian Treaties) or a Framework for Land Rights By Brandon Morris he Royal Proclamation is not an and Jay Cassel combination of reserves, annuity pay­ ancient document but it has remained ments, and one-time payments of money T Brandon Morris is research adviser on land and provisions (the Robinson Treaties in effect for 250 years, even if it is not claims research at the Ontario Ministry of 1850 and the Post-Confederation well known by Canadians. It became of Aboriginal Affairs and a doctoral 2 the framework for treaty-making in rela­ candidate in the Department of History Treaties). Many of these treaties also tion to land rights in the decades after at York University. Jay Cassel is research guaranteed hunting, fishing, and gath­ 1763, and as such it is a core document coordinator on land claims research at the ering rights to First Nations. As a result, Ontario Ministry of Aboriginal Affairs. in Crown – First Nations relations. The First Nations have a continuing inter­ principles that it established underlie est in off-reserve Crown lands. a large part of the work of Aboriginal Land claims arise Affairs and Northern Development Can­ The Ministry’s Function ada and the Ontario Ministry of Aborig­ from one of two One of the most important functions inal Affairs (MAA). Simply put, there of the Ministry of Aboriginal Affairs is would not be any territorial treaties, circumstances: the to address First Nations land claims. land claims, or ministries of Aborigi­ Crown’s failure to While the Constitution Act of 1867 nal affairs without the Royal Proclama­ assigned to the federal government tion. fulfill its obligations exclusive law-making authority for “Indi­ In the Royal Proclamation, then King ans, and Lands reserved for the Indi­ George III claimed sovereignty over a according to the terms ans,” including the power to make treat­ large territory in North America but went ies with First Nations, Ontario becomes on to say that “such Parts of Our [Brit­ of a specific treaty; involved in land claims if it was respon­ ish] Dominions and Territories as, not or its failure to abide sible for the actions giving rise to a having been ceded to, or purchased by claim, if it benefited from those actions, Us, are reserved to them [First Nations], by the terms of the or if it holds Crown land that may be or any of them, as their Hunting Grounds involved in the settlement of a claim. … .” The document continues, “if, at any Royal Proclamation. Land claims arise from one of two cir­ Time, any of the said Indians should be cumstances: the Crown’s failure to ful­ inclined to dispose of the said Lands, fill its obligations according to the terms that same shall be purchased only for These legal obligations, which have since of a specific treaty; or its failure to abide Us [the Crown], in Our Name, at some been enshrined in section 25 of the Can- by the terms of the Royal Proclama­ publick Meeting or Assembly of the said adian Charter of Rights and Freedoms, tion. The Crown may not have lived up Indians to be held for that Purpose by have been the foundation of treaty-­making to its obligations under a specific treaty the Governor or Commander in Chief in Canada since 1763. if it did not set aside the proper quan­ of Our Colonies … .”1 In other words, In his book Compact, Contract, tity of land to which a First Nation was the Proclamation recognizes First Na­ Covenant: Aboriginal Treaty-Making in entitled or if agents of the Crown unlaw­ tions rights to lands not yet ceded, but Canada, J.R. Miller has shown that fully took land through the construc­ also establishes a framework for deal­ while the Crown and First Nations con­ tion of a dam that flooded reserve land, ing with those rights. First Nations’ lands cluded commercial compacts, military or created a right-of-way for a highway, could only be sold to representatives of alliances, and treaties of peace and railway, or power line without obtain­ the Crown, at public meetings called for friendship since the early 17th century, ing informed consent. that purpose. The Royal Proclamation the Royal Proclamation ushered in a Instances in which the Crown has created legal obligations on Crown of­ new phase of treaty-making. The terri­ not fulfilled its obligations under the ficials: a strict process had to be fol­ torial treaties signed since the Royal Royal Proclamation give rise to what lowed for transferring rights in land from Proclamation provided for the exchange are called comprehensive claims and, First Nations to the Crown and settlers. of First Nations lands for one-time pay­ The said lands, page 22

Canada Watch • Fall 2013 21 The said lands continued from page 21 when accepted by Canada and the prov­ ince concerned, result in negotiations Although the Royal Proclamation of 1763 to establish modern-day treaties. Examples is clearly a colonial document, establishing in which the Proclamation was ignored can be found across the country—in a process by which the Crown could acquire British Columbia (British Columbia Treaty Commission), Quebec (the James First Nations lands, it has also been Bay and Northern Quebec Agreement), and in the Maritime provinces. The fundamental to maintaining a relationship Crown’s failure to follow the Procla­ mation in Ontario’s Ottawa River Val­ between the Crown and First Nations ley has resulted in the Algonquin Land in which Aboriginal rights are Claim, which has led to negotiations aimed at achieving the province’s first acknowledged and taken seriously. modern-day treaty. Although the Royal Proclamation of 1763 is clearly a colonial document, tions has been preserved in binding tunity to renew the Crown – First Na­ establishing a process by which the territorial treaties because of the Roy­ tions relationship. Crown could acquire First Nations lands, al Proclamation. While this relation­ it has also been fundamental to main­ ship has shifted to one of inequality in Notes which settler interests have largely pre­ taining a relationship between the Crown 1. “Royal Proclamation of 1763”: vailed, there nevertheless continues to and First Nations in which Aboriginal http://www.aadnc-aandc.gc.ca/eng/137 be a relationship anchored in this his­ rights are acknowledged and taken ser­ 0355181092/1370355203645, accessed toric document. Since 1982, the Can- iously. In the United States where, after July 31, 2013. the Revolution, the Proclamation no adian Charter of Rights and Freedoms 2. J.R. Miller, Compact, Contract, longer applied, the treaty-making pro­ has incorporated the promises of 1763 Covenant: Aboriginal Treaty-Making in cess unfolded differently, and the Unit­ in its terms, and courts have made a Canada (Toronto: University of Toronto ed States fought a long succession of succession of rulings obliging the Crown Press, 2009), chapter 3. “Indian Wars.” In Canada, the relation­ to respect its undertakings. We are pres­ ship between the Crown and First Na­ ented, 250 years later, with an oppor­

22 Canada Watch • Fall 2013 Much ado about nothing: The Royal Proclamation on the edge of empire n October 7, 1763, only months tion as if nothing had changed. The By Robert Englebert Oafter signing the Treaty of Paris Royal Proclamation’s directive to extend and ending the Seven Years’ War, Brit­ Robert Englebert is an assistant professor British law to the colony of Quebec did in the Department of History at the ain sought to confirm sovereignty over not apply to French settlements further University of Saskatchewan. its newly acquired territories in North west. General Thomas Gage’s address— America through a Royal Proclamation. delivered to the inhabitants of the Illi­ “The Royal Proclamation”—as it is now The Proclamation has nois Country by Captain Stirling in 1765— known—was a document designed to made no mention of the rule of British address the challenges born of con­ become a crucial law, the creation of a civil government, quest. The exigencies of an expanded or the maintenance of a military regime. empire necessitated imperial directives turning point where It simply reiterated the protections to bring new peoples and lands into broader continental afforded under the Treaty of Paris, such the British imperial fold. In short, the as freedom of religion, the right to relo­ Royal Proclamation prescribed a ser­ discussions of cate, and a provision for an oath of ies of changes that attempted to rede­ allegiance. Thus, French law continued fine North America. empires, colonies and to reign despite British imperial rule. British attempts to handle local disputes A Pivotal Moment in the peoples give way to and establish English courts were under­ History of North America mined by a revolving door of comman­ For many historians, the Proclamation national discourses. dants and resistance from French set­ has become a crucial turning point tlers and merchants. In many ways, day- where broader continental discussions to-day life in the Illinois Country remained of empires, colonies, and peoples give mation and the consequences of impe­ unchanged.4 way to national discourses.1 In Canada, rial change in North America. While there has been an overwhelming focus Quebec and Indian Territory received The Royal on one particular aspect of the Proc­ considerable attention from British Proclamation’s Limits lamation, the creation of the colony of authorities, the villages of the Illinois French settlements in the Illinois Coun­ Quebec. The new colony signalled an Country were mostly forgotten. In fact, try undermined the Royal Proclama­ end to French North America and the the Illinois Country was not mentioned tion. Established French settlements beginning of two national historiogra­ at all in the Proclamation. Yet at the dispelled the myth of Indian Territory phies—one for Canada and one for Que­ western edge of the new Indian Terri­ as a settler-free zone with limited and bec. American historiography, on the tory, a group of five villages dotted the tightly controlled trade. Moreover, Can- other hand, has focused primarily on east bank of the Mississippi between adiens continued to migrate to the Illi­ the creation of Indian Territory in the the Ohio and Illinois rivers. Together nois Country and marry into established trans-Appalachian West as part and par­ they made up the most concentrated families, which served to maintain the cel of the growing tensions that led to French settlement in what had been French character of many of the vil­ the American Revolution. Much like known during the French Regime as lages.5 Trade between the Illinois Coun­ their English Canadian counterparts, the pays des Illinois.3 Here, on the try and Canada persisted, thanks in American historians see French North periphery of the British Empire, the large part to Illinois merchants with ties America as having disappeared after effect of the Royal Proclamation was to Aboriginal nations throughout the 1763. It was replaced by a westward- negligible. interior of North America and traders marching American Frontier.2 It took nearly two years following at Michilimackinac, Detroit, and Mont­ the 1763 Treaty of Paris for the British real. The British trade licence system A View to the West: to claim this newly acquired territory. initially slowed the southern fur trade, The Pays des Illinois When Captain Thomas Stirling and his but it ultimately failed to stem the flow Looking at French settlements in the men finally arrived on the banks of the of goods and people to the Illinois Coun­ Illinois Country offers an alternative Mississippi at Fort de Chartres in 1765, try. Hundreds of fur trade voyageur con­ point of reference from which to under­ they found Louis St. Ange de Bellerive tracts signed in Montreal confirmed the stand the effects of the Royal Procla­ governing a French-speaking popula­ Much ado about nothing, page 24

Canada Watch • Fall 2013 23 Much ado about nothing continued from page 23 re-emergence of robust trade with the Illinois Country in the years following The Royal Proclamation may have the Proclamation.6 Merchants travelled redrawn the imperial map, but it did not, back and forth between the St. Law­ rence and Mississippi and helped fam­ in one fell swoop, break the historic French ilies keep in touch with loved ones and settle business over long distances.7 socio-economic linkages between the The Royal Proclamation may have redrawn the imperial map, but it did Illinois Country and Canada. not, in one fell swoop, break the his­ toric French socio-economic linkages Englebert, “Mental Mapping and the 4. Colin G. Calloway, The Scratch of a Pen: between the Illinois Country and Can­ French River World in North America, 1763 and the Transformation of North ada.8 Nor did it effectively assert Brit­ 1763-1805,” PhD diss., University of America (Oxford: Oxford University ish control over new subjects at the Ottawa, 2010; Bethel Saler and Carolyn Press, 2006), 131. edge of empire. The Proclamation pro­ Podruchny, “Glass Curtains and Storied jected a new vision of empire with which 5. Englebert, op. cit. Landscapes: Fur Trade Historiography colonial administrators and subjects 6. Ibid. in Canada and the United States,” in were left to grapple. Examining the Illi­ Bridging National Borders in North 7. Robert Englebert, “Merchant nois Country and French colonial con­ America: Transnational and Representatives and the French River tinuity provides an opportunity to break Comparative Histories, ed. Andrew World, 1763-1803” Michigan Historical away from our narrow national dis­ Graybill and Benjamin Johnson Review 34, no. 1 (Spring 2008): 63-82. courses, broaden our historical gaze, (Durham, NC: Duke University Press, 8. Although I have focused here on French and ask new questions about the rela­ 2010), 275-302. settlements, equally important ties to tionship between imperial directives Spanish Louisiana and Aboriginal and colonial historical realities. 2. See Jay Gitlin, The Bourgeois Frontier: French Towns, French Traders & peoples throughout the interior of North America make this a broader Notes American Expansion (New Haven, CT: Yale University Press, 2010). continental history. Robert Englebert 1. Allan Greer, “National, Transnational, and Guillaume Teasdale, French and 3. There was also Ste. Geneviève on the and Hypernational Historiographies: Indians in the Heart of North America, west bank of the Mississippi, but it New France Meets Early American 1630-1815 (Michigan State University became part of Upper Louisiana with History” Canadian Historical Review 91, Press / University of Manitoba Press, the Treaty of Fontainebleau in 1762. no. 4 (December 2010): 698-699; Robert 2013), xi-xxxiii.

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24 Canada Watch • Fall 2013 The life and times of the Royal Proclamation of 1763 in British Columbia

[The Royal Proclamation’s] force in England by Arthur E. O’Meara, a law­ By Neil Vallance as a statute is analogous to the and Hamar Foster yer and Anglican priest who worked status of Magna Carta which has with Clark and eventually replaced him always been considered to be the Neil Vallance is a PhD candidate in the as counsel. The Proclamation continued law throughout the Empire. It was a Law and Society Graduate Program, Faculty of Law, University of Victoria. to be cited and relied on for another law which followed the flag as 17 years in what amounted to a full- England assumed jurisdiction over Hamar Foster is a professor in the Faculty fledged campaign for Aboriginal title. newly-discovered or acquired lands of Law at the University of Victoria. or territories. It follows, therefore, that the Colonial Laws Validity Act Dismissal applied to make the Proclamation For over one hundred Then, in 1927, a parliamentary commit­ the law of British Columbia. years the Proclamation tee dismissed the land claims of the —Hall J, in Calder et al. v. Allied Indian Tribes of British Colum­ Attorney-General of British Columbia, bia and Parliament amended the Indian [1973] SCR 313, at 395) has played an Act to make raising funds for this cause important, though effectively illegal, actions that drove the his quotation from the dissenting campaign underground. The Great opinion of Justice Emmett Hall in T hotly contested, role Depression and the Second World War Calder et al. v. Attorney-General of Brit- ensured that the BC “Indian Land Ques­ ish Columbia represents the high point in what was known tion” stayed on the back burner. When of a long struggle by First Nations for Aboriginal veterans returned from the recognition of the Royal Proclamation until recently as the battlefields, the issue resurfaced, espe­ of 1763 as part of “the law of British “British Columbia cially once the prohibition against fund­ Columbia.” For over 100 years the Proc­ ing was rescinded in 1951. Indeed, the lamation has played an important, though Indian Land Question.” Proclamation dominated the new cam­ hotly contested, role in what was known paign for title, which got under way in until recently as the “British Columbia the late 1950s. Indian Land Question.” in June 1910, a reporter for the Victo- Renewal Early Recognition ria Daily Colonist asked some Nisga’a In the White and Bob case, Thomas The history of the Proclamation in BC elders why they thought that their legal Berger was the first lawyer to argue in began shortly after confederation with case for Aboriginal title was strong. court that the Proclamation applied to Canada, when the Dominion govern­ There were many reasons, they said, BC. In 1964, one Court of Appeal judge ment disallowed the new province’s and one of the most important was the decided in favour of the Proclamation, Crown Lands Act. In recommending Royal Proclamation of 1763. “[T]he King one against, and the third did not men­ this course of action, the Dominion is on our side,” they said, and then tion it, leaving its status undecided. minister of justice explicitly pointed out quoted from the Proclamation, noting Berger repeated his arguments in 1973, BC’s failure, in direct violation of the that it “had the effect and operation of this time before the Supreme Court of policy set out in the Royal Proclama­ a statute of the Imperial Parliament.” Canada in the Calder case. Three jus­ tion, to protect or even to acknowledge The astonished reporter asked how tices decided in favour of the Procla­ Indian land rights in the legislation. A they knew all this when he, a white mation, and three against. Once again, slightly amended version of the statute man, did not. One reason, they said, its status remained in limbo. In many was approved, and the Dominion gov­ was that their lawyer was “the very best respects, the point became moot after ernment declined to pursue the mat­ in Canada”—referring almost certainly the 1984 Supreme Court of Canada deci­ ter of the Proclamation’s legal status to J.M. Clark, KC, of Toronto. sion in the Guerin case, in which the in BC. Therefore, it is hardly surprising that court decided that Aboriginal title exists British Columbia’s Aboriginal lead­ the Proclamation is quoted at length at common law, independently of the ers became aware of the Proclamation in the Cowichan Petition of 1909 and Proclamation. Ironically, this is a con­ early in the 20th century, and quickly in the Nisga’a Petition of 1913, both of grasped its significance. In an interview which were taken to the Privy Council The life and times, page 26

Canada Watch • Fall 2013 25 The life and times continued from page 25 clusion that lawyers for the Nisga’a and the Allied Tribes had reached three- British Columbia’s Aboriginal leaders became quarters of a century earlier. In fact, aware of the Proclamation early in the 20th in 1909, even the lawyer retained by Ottawa in response to the Cowichan century, and quickly grasped its significance. Petition was of this view. The wheels of justice grind exceedingly slow. The fight did not end there, however. Many still believed that a favourable issue in its 1997 decision, merely not­ Nations Leadership Council (composed court decision had the potential to ing that “although aboriginal title was of the BC Assembly of First Nations, advance the cause of Aboriginal title in recognized by the Proclamation, it arises the First Nations Summit, and the Union BC. In the 1991 trial decision in the Del- from the prior occupation of Canada of BC Indian Chiefs) retained a small gamuukw case, Chief Justice McEach­ by aboriginal peoples” (per Lamer CJ). team of historians and lawyers to draft ern acknowledged that “[a] great deal That statement effectively ended the a new Royal Proclamation to accom­ of interesting evidence was adduced fight, leaving the legal status of the Proc­ pany proposed legislation recognizing about this Proclamation and I estimate lamation in BC forever undecided. Aboriginal title in the province. The almost one-quarter of the arguments of new Proclamation was intended to sup­ counsel was devoted to this question.” A New Royal plement and complement the original In the end, he concluded, “the Royal Proclamation? one, and was to be proclaimed by BC’s Proclamation, 1763 has never had any The continuing symbolic power of the first Aboriginal lieutenant governor, Ste­ application or operation in British Col­ Proclamation was highlighted in 2009, ven Point. Although this project did not umbia.” On appeal, the Supreme Court when the provincial government of Pre­ come to pass, the story of the Procla­ of Canada declined to engage with the mier Gordon Campbell and the First mation in BC may not be over.

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26 Canada Watch • Fall 2013 The spirit of 1763: The Royal Proclamation in national and global perspective t is an auspicious moment for Can­ Nations) and the Nisga’a in northwest­ By Ken Coates Iadians to revisit one of the founding ern British Columbia, the Government documents in Canada’s legal and pol­ Ken Coates is the Canada Research of Canada rediscovered its commitment itical history. After a century of near Chair in Regional Innovation at the Johnson-Shoyama Graduate School to signing treaties with Indigenous peoples. neglect from politicians, bureaucrats, of Public Policy at the University of The modern treaties bear scant resem­ and lawyers, the last 40 to 50 years have Saskatchewan and a Senior Fellow at the blance to the 19th-century accords that seen this document brought to new life Macdonald-Laurier Institute in Ottawa, started the process. Today’s lengthy and and vigour. The renewal of interest in responsible for the Institute’s program on complicated legal culture shares little the Proclamation, however, was not Aboriginal peoples and resource use. in common with the general and super­ solely a domestic event. The Royal Proc­ ficial agreements of the Robinson Treat­ lamation re-emerged in First Nations The Royal ies or the Numbered Treaties on the and Canadian legal cultures at a time prairies and northern Ontario. In a tech­ when Indigenous rights became increas­ Proclamation nical manner, the modern treaties reflect ingly important around the globe. Though an effort to exercise the honour of the not anchored in the Royal Proclama­ re-emerged in First Crown, and to bring contemporary Can­ tion of 1763 per se, countries around Nations and Canadian adian public policy and Aboriginal – new­ the world grappled with similar histo­ comer relations in line with both the ries of promises and neglect. As we look legal cultures at a spirit of the Royal Proclamation and the forward, beyond this 250th anniversary,­­­ requirements of Canadian law. it seems prudent to situate this docu­ time when Indigenous As the events associated with the ment in the broader context, asking the Idle No More movement, the growing question: “What does the Royal Proc­ Rights became frustration among Aboriginal leaders, lamation mean for Canadians today?” increasingly important and the 2012-13 threats of more aggres­ sive Indigenous protests reveal, how­ North American Context around the globe. ever, First Nations, Metis, and Inuit Issued at a time of fundamental transi­ peoples clearly do not believe that this tion in North American affairs—with the country has honoured its historical com­ French defeated, the British in the ascen­ acy, sparking conflict with Indigenous mitments or captured in law and prac­ dency, and the real prospect of seem­ peoples as its population surged west­ tice the aspirations articulated in the ingly endless conflicts on the continent ward. In the remaining British North Royal Proclamation. The non-­Aboriginal coming to an end—the Royal Procla­ American colonies, the Robinson Superior backlash against assertions of Indigen­ mation of 1763 promised respect for Treaties of the mid-19th century cap­ ous rights (which, incidentally, are those Indigenous peoples and a commitment tured some of the spirit of the Procla­ defined by British and Canadian law to deal honourably with First Nations mation, but faltered in implementation. and not the rights that Indigenous peoples in the future. While politicians and busi­ The new Dominion of Canada, more believe arise from their cultural and ness leaders in some of the British col­ for financial and logistical reasons than legal traditions) suggests that a rapproche­ onies found the Proclamation constrain­ from a commitment to the Proclama­ ment remains a far way off. The Cale­ ing, there was broader agreement that tion, negotiated treaties in western Can­ donia standoff by the Six Nations in negotiating treaties before occupying ada as a prelude to settling the frontier. southern Ontario and Chief Theresa Indigenous lands would prevent the After a weak start under Governor James Spence’s winter 2012-13 fast in Ottawa violence that attended the western Douglas, the Colony of British Colum­ produced bitter critiques of Aboriginal advance of the settlement frontier. bia and the province that followed in aspirations and tactics. With the excep­ The start of the American Revolu­ 1871 brushed aside on specious legal tion of the territorial North, where mod­ tion and the British – American tensions grounds any political or moral obliga­ ern treaties have been generally accepted that ended in the War of 1812 prevented tion to sign treaties with First Nations as establishing new political realities, the stepwise implementation of the Proc­ peoples west of the Rockies. non-Indigenous ­frustration with ­Aboriginal lamation. The newly founded United Much later, beginning in the early rights, claims, and tactics appears to States of America largely ignored this 1970s, with the Yukon Native Brother­ be increasing rather than declining. particular part of its British legal leg­ hood (later the Council for Yukon First The spirit of 1763, page 28

Canada Watch • Fall 2013 27 The spirit of 1763 continued from page 27 ical groups, achieved as much through Meaningful partnership with Aboriginal education, social relationships, hiring peoples is not a technical or legal practices, and cultural norms as through political and legal action. accomplishment but rather a cultural one. Can Canadians Recapture the Spirit of 1763? Global Context suffering, cultural loss, and social dis­ Recapturing the underlying meaning of Canada is not alone in its struggles to location. The passage of time has not the Royal Proclamation is not simply find common ground with Indigenous been easy. Written assurances of part­ a task for lawyers, judges, and politi­ and other marginalized peoples. Nor nership, cooperation, and fair treatment cians. Meaningful partnership with is the Royal Proclamation the only have rarely provided much protection. Aboriginal peoples is not a technical example of a colonial or national admin­ or legal accomplishment but rather a istration establishing lofty aspirations Lessons for Canada cultural one. To honour the spirit of for cultural cooperation and peaceful Canada faces two fundamental chal­ 1763 requires Canadians to move away co-existence. The 1840 Treaty of Wait­ lenges as it contemplates the 250th anni­ from the narrow focus on the law and angi, effectively the founding document versary of the Royal Proclamation. The stop seeing Aboriginal people simply for the nation of New Zealand, articu­ first is the technical requirement that as poor and disadvantaged citizens. lated a commitment to Maori – Pakea the country honour British and Canad­ Instead, Canadians must recognize that (newcomer) cooperation that languished ian law by ensuring that contemporary Indigenous peoples have rich and vibrant for almost 150 years until a national practices are aligned with the consti­ cultures and are true partners in Con­ commitment was rediscovered in the tutional and legal rights of Indigenous federation. Far from leaving the task of late 20th century. The newly established peoples. This is an ongoing and costly reconciliation to the courts and the leg­ Communist government of China offered process whereby Aboriginal peoples islatures, Canadians need to reach out strong constitutional assurances of are often forced to turn repeatedly to to Indigenous Canadians in friendship respect for minority languages and cul­ the courts in order to force government and a sincere desire for cultural under­ tures, and then imposed a state-driven compliance. That there is a modern standing and sharing. system of cultural standardization. The treaty process still under way in Can­ The national discussion of the Royal newly independent state of Burma, in ada, with a significant number of impres­ Proclamation of 1763 has focused on its 1947 constitution, established a foun­ sive and substantial agreements already legal and constitutional obligations, for dation for nation-building that recog­ concluded, indicates that the Canad­ the simple reason that social, cultural, nized the territorial and cultural aspi­ ian government is moving slowly, and and economic cooperation continues rations of tribal peoples. This commit­ usually reluctantly, toward ensuring that to remain elusive. For Canadians to ment, following a global pattern, was the nation’s formal obligations are met. rediscover the spirit of 1763, they must followed by decades of neglect, attempted The second challenge is much more first realize the vital role that First Nations, assimilation, and cultural genocide. formidable, and moves away from the Metis, and Inuit people played in this Indeed, Indigenous peoples and cul­ technicalities of the law. The underlying country’s history. Indigenous peoples tural minorities worldwide have had a spirit of the Royal Proclamation recog­ must be embraced as full partners in rough ride over the last 200 years. In nized the legitimacy and partnership nation-building. Upon this foundation, country after country, regardless of legal of Indigenous peoples with colonial set­ together Canadians and Aboriginal com­ assurances of land and cultural rights, tlers, just as the Treaty of Waitangi did munities must find new ways of collab­ Aboriginal communities and minori­ in New Zealand and other founding orating. ties found themselves dominated by constitutional documents have done Most likely, however, the 250th year national governments, often with the elsewhere around the globe. The cul­ of living under the Royal Proclamation aid of religious organizations, margin­ tural, social, and economic imperatives will bring further evidence of a con­ alized by economic and land acquisi­ of recognition, acceptance, and coop­ tinued, in some quarters growing, gap tion processes, and overwhelmed by eration are, clearly, even harder to between Indigenous peoples and new­ the cultural forces of the dominant soci­ achieve. Dominant cultures expect comers in Canada. This, as much as eties. Where possible, these peoples migration to be the norm. They often the failure to attend systematically to have held onto their languages, trad­ struggle to accept difference and peace­ legal and constitutional obligations, is itions, life ways, and even their lands, ful co-existence. Assumed superiority the true sadness of the long history of typically at the cost of a great deal of is the hallmark of dominant socio-polit­ the Royal Proclamation of 1763.

28 Canada Watch • Fall 2013 The Royal Proclamation and colonial hocus-pocus: A learned treatise

We do further declare it to be our nore the parts of the Proclamation they By Victoria Freeman Royal Will and Pleasure, for the did not like, such as having to purchase present, as aforesaid, to reserve Victoria Freeman is a sometime lecturer Unceded Land before moving on to it. under Our Sovereignty, Protection at York University who struggles In the end, it was poor policy. Trying to to control her emotions. and Domain, for the use of said control the relationship between In­ Indians, all lands and territories digenous peoples and settlers through not within the limits of … etc., etc. While the law without attempting to build bridg­ es or facilitate relations between peoples Don’t Get Me Started Proclamation on the ground created some unfortu­ omeone should write a PhD thesis seemingly offered nate settler blowback. Even the Treaty Son the number of Indigenous life­ of Niagara, which successfully “tied times wasted on litigation because of Indigenous peoples down” two thousand Indigenous lead­ these words. Someone should quan­ ers in an alliance with the British through tify exactly how much money lawyers permanent promises that First Nations would nev­ (and historians) have made from them er live in poverty (will you commemo­ since 1763, or perhaps real estate devel­ “protection” against rate this First Confederation, Stephen opers, past and present. Someone else Harper?), did not meaningfully engage should write a dissertation on Stephen the “Frauds and settler populations. Indigenous leaders Harper and the concept of “protection.” Abuses” of settlers consulted their constituencies before I could go on … ratifying treaties, Europeans less so. I tried to write something balanced and land speculators The British never attempted to edu­ and thoughtful about the Royal Procla­ cate their own population or build a mation for this issue of Canada Watch. … it did not protect consensus for mutual co-existence with But the truth is that it just makes me Indigenous people. This was beyond mad. It is embarrassing, but my con­ Indigenous peoples the perceived role of government at the tribution to this discussion of the his­ from the time. Also, permanent mutual co-exis­ torical legacy of the Royal Proclama­ tence between two sovereign polities tion is a rant. Oh dear, there goes my Proclamation’s author. was never the aim of the Crown. The career … return of peace, the securing of alli­ The Royal Proclamation makes me ance with the western Indians, and the think of some Hollywood actor in red­ direction of settlers north and south face intoning, “White man speaks with rights in Canada. But only in a legal rather than west was expedient as Brit­ forked tongue!” In its “equivocation sense. The human relationships agreed ain extended jurisdiction over the new between sovereignty and subordina­ to through the Treaty of Niagara have territories it had gained from France, tion,” as someone so succinctly put it been forgotten; we are left with words especially in light of Pontiac’s war. (was it John Borrows? Jim Miller? Brian on paper. And wampum, if one likes Slattery?), it has been used creatively that sort of thing. You Cross This Line to both deny Aboriginal title (St. Cath- and I’ll … erine’s Milling) and assert it (did I men­ “Poor” Policy While the Proclamation seemingly tion lawyers?). Really, we should prob­ The Royal Proclamation of 1763 was a offered Indigenous peoples permanent ably thank the Royal Proclamation for unilateral attempt to deal with ­Indigenous– “protection” against the “Frauds and the Indian business. I hate to say it, but settler–Crown relations by royal edict. Abuses” of settlers and land specula­ its lasting legacy is ineffectual treaties Given that legislative assemblies on two tors through the creation of a line demar­ on the one hand and the Indian Act on continents were busy undermining cating Indian territory and zones of pro­ the other. George’s authority, the Proclamation hibited settlement, as well as a formal­ On second thought, how can one was plagued by bad timing. Ineffectu­ ized process for land purchases, it did begin to say one is sorry? al in many instances, since the King not protect Indigenous peoples from I know. I know. The Royal Procla­ was so damn far away, local govern­ mation is the Magna Carta of Native ments, like Nova Scotia, could just ig­ A learned treatise, page 30

Canada Watch • Fall 2013 29 A learned treatise continued from page 29 the Proclamation’s author. The Great inferior peoples with quaint, progress- Protector had his own economic and The Proclamation inhibiting ideas about peace and friend­ political agenda, such as turning allies has had its uses in ship. Extinguishment is a word with into subjects without their knowledge genocidal resonance, methinks. or consent (just as today we still insist the struggle to that all Native people are Canadians, The Light at the End of whether they or their ancestors ever maintain Indigenous a Very Long Tunnel agreed to be). The stipulation of the Yet—I cannot deny that the Proclama­ Crown’s monopoly on land purchases connections to land tion has had its uses in the struggle to from the Indians, while protecting First and assert Indigenous maintain Indigenous connections to Nations from some “Frauds and Abuses” land and assert Indigenous self-deter­ by settlers, allowed the Crown to dic­ self-determination. mination, a struggle that I, with my unpro­ tate the price of land and acquire it far fessional presentist bias, support. It kept below its market value. In the case of hope alive by offering a vision of a world the Mississauga tract in 1805, the pur­ governed by the principles of non-inter­ chase price was reportedly 2.5 percent Treaty of Fort Stanwix, a move from ference and consent (if you read the of market value, thus excluding Aborig­ which Sir William Johnson, superin­ text with one eye shut). The treaties it inal peoples from the new economy tendent of the Northern Indians, per­ engendered over the centuries, imper­ being created around them and finan­ sonally benefited. Empire was always fect as they are, are a start, the begin­ cing the development of the colony’s understood to be a work in progress; nings of learning how to live together. infrastructure on their backs. Joseph what First Nations did not understand Perhaps, for these reasons, the Royal Brant fought against this, but that is was that treaties were inviolable until Proclamation has persisted, through another story. circumstances changed. the British North America Act, through That the British never conceived of The Proclamation also formalized the Constitution of 1982 and the Char- the Proclamation Line, or British prom­ extinguishment as the sine qua non of ter of Rights and Freedoms. You could ises generally, as permanent was dem­ the treaty process—rather than any idea say that it has successfully resisted extin­ onstrated only five years later, when of sharing territory in a mutually bene­ guishment, and there must be a lesson the line was extended westward in the ficial way, the latter a concept of clearly in that.

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he Canadian Studies Network/Réseau d’études Tcanadiennes is a bilingual organization dedicated to scholars who are involved in the study of Canada through Canadian Studies programs or within other disciplines at the post-secondary level in Canada. The CSN-REC, in support of its goal to facilitate professional connections with international Canadian Studies associations, and to foster critical teaching and research on Canada, facilitates communication among Canadianists and holds an annual meeting to discuss issues of mutual concern and new developments in the field. We welcome individuals or institutions involved in Canadian Studies at the post-secondary level to participate in and/or join the Canadian Studies Network. http://www.csn-rec.ca

30 Canada Watch • Fall 2013 Further Reading

Beaulieu, Alain, “‘An equitable right to be compensated’: Miller, J.R. Compact, Contract, Covenant: Aboriginal Treaty- The Dispossession of the Aboriginal Peoples of Quebec and Making in Canada. Toronto: University of Toronto Press, the Emergence of a New Legal Rationale (1760-1860),” The 2009. Canadian Historical Review, vol. 91 no. 1, (March 2013), 1-27. Morris, Alexander. The Treaties of Canada with the Indians of Borrows, John. “Constitutional Law from a First Nations Manitoba and the North-West Territories, Including the Perspective: Self-Government and the Royal Proclamation.” Negotiations on Which They Were Based, and Other University of British Columbia Law Review 28 (1994): 1-48. Information Relating Thereto. Toronto: Belfords, Clarke & Borrows, John. “Wampum at Niagara: The Royal Proclamation, Co., 1880. http://www.gutenberg.org/ebooks/7126. Canadian Legal History and Self-Government.” In Aboriginal Mushkegowuk Council. The Real Treaty—As Orally Agreed To. and Treaty Rights in Canada: Essays on Law, Equality and http://www.mushkegowuk.com/documents/ Respect for Difference, ed. Michael Asch, 155-172. Vancouver: jamesbaytreaty9_realoralagreement.pdf. UBC Press, 1997. Mushkegowuk Council. “The Lawsuit.” In Treaty 9 Diaries: The Buckner, Phillip, and John G. Reid, eds. Remembering 1759: Real Agreement Between First Nations and the Crown in The Conquest of Canada in Historical Memory. Toronto: 1905. http://www.treaty9diaries.ca/the-lawsuit. University of Toronto Press, 2012. Slattery, Brian. “The Land Rights of Indigenous Canadian Buckner, Phillip, and John G. Reid, eds. Revisiting 1759: Peoples, as Affected by the Crown’s Acquisition of Their The Conquest of Canada in Historical Perspective. Toronto: Territories.” PhD diss., Faculty of Law, Oxford University, University of Toronto Press, 2012. 1979. Calloway, Colin. The Scratch of a Pen: 1763 and the Slattery, Brian. “Understanding Aboriginal Rights.” Canadian Transformation of North America. Toronto: Oxford Bar Review 66 (1987): 727-783. http://papers.ssrn.com/sol3/ University Press, 2006. papers.cfm?abstract_id=1567571. Courtois, Charles-Philippe, ed. La Conquête: Une anthologie. Montréal: Typo, 2009. Delâge, Denys, and Jean-Pierre Sawaya. Les traités des Sept- Feux avec les Britanniques : Droits et pièges d’un héritage Visit the Robarts Centre at colonial au Québec. Sillery, QC: Septentrion, 2001. Dixon, David. Never Come to Peace Again: Pontiac’s Uprising http://robarts.info.yorku.ca and the Fate of the British Empire in North America. Norman: University of Oklahoma Press, 2005. for our new Dowd, Gregory Evans. War Under Heaven: Pontiac, the Indian Annual Lecture Series Nations and the British Empire. Baltimore: John Hopkins University Press, 2004. Foster, Hamar, et al. Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights. Vancouver: UBC Press, 2007. Freeman, Victoria. Distant Relations: How My Ancestors Colonized North America. Toronto: McClelland & Stewart, 2000. Fyson, Donald. Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764-1837. Toronto: University of Toronto Press, 2006. Fyson, Donald. “The Canadiens and the Conquest of Quebec: Interpretations, Realities, Ambiguities.” In Quebec Questions: Quebec Studies for the Twenty-First Century, ed. Stéphan Gervais et al., 18-33. Toronto: Oxford University Press, 2011. Harris, Cole. Making Native Space: Colonialism, Resistance, and Reserves in British Columbia. Vancouver: UBC Press, 2002. Johnson, Leo A. “The Mississauga – Lake Ontario Land Surrender of 1805.” Ontario History 83, no. 3 (September 1990): 234-253. Long, John S. Treaty No. 9: Making the Agreement to Share the Land in Far Northern Ontario in 1905. Montreal and Kingston, ON: McGill-Queen’s University Press, 2010.

Canada Watch • Fall 2013 31 For past issues of Canada Watch and the Robarts Annual Lectures, visit the website of the Robarts Centre for Canadian Studies: http://robarts.info.yorku.ca

32 Canada Watch • Fall 2013