Is the Royal Proclamation of 1763 a Dead Letter?

By Brian Slattery

The Royal Proclamation is now 250 years old.  Is it still relevant today?  Arguably not.  The document was drafted in London in the spring and summer of 1763 by a handful of bureaucrats and politicians.  It was part of a project to enforce British imperial claims to a vast American territory from which France had recently withdrawn.  Most of the territory was actually controlled by independent Indigenous nations – some of them former allies and trading partners of the French, many of them hostile to the incoming English or at best suspicious.  The Proclamation was designed to allay those fears while at the same time further imperial ambitions.  In effect it was crafted to deal with a very specific situation – one that has long since passed into history.

In the past two and a half centuries the territories to which the Proclamation applied have undergone sweeping and profound changes in every sector – political, legal, demographic, economic, social.  Territories that were once in the exclusive possession of Aboriginal nations are now shared with people originating from every sector of the globe and ruled by governments elected by popular majorities.  How can this ancient document speak to the modern position of indigenous Canadian peoples?  Isn’t it just as obsolete as the schooners and barques that carried copies of the Proclamation to America?

In reality the Proclamation is as relevant as it ever was – some would say more relevant.  It embodies the fundamental legal principles that have informed relations between the Crown and indigenous American peoples almost since the first British settlements were founded in America in the early 1600s.  In the watershed Calder decision of 1973, Justice Emmett Hall of the Supreme Court of Canada described the Proclamation as akin to the Magna Carta – and the analogy is an appropriate one.  While responding to a particular historical situation, the Proclamation, like the Magna Carta, sets out timeless legal principles.  Changes in circumstances have altered the way in which these principles apply, but the principles themselves are as fresh and significant as ever. Three of these principles stand out.

Timeless Legal Principles

First, Indigenous Canadian peoples are autonomous nations that have ancient historical connections with the Crown, who stands as the guarantor of their autonomy and basic rights.

Second, these peoples hold legal title to their traditional territories, which cannot be settled or taken from them without their consent.

Third, any important matters that arise between Indigenous peoples and the Crown – such as the transfer or sharing of lands – are to be settled by binding treaties freely concluded between the Crown and the Aboriginal peoples concerned.

In modern times, all three principles have been recognized by the Supreme Court of Canada as part of the legal bedrock of modern Aboriginal and treaty rights, which are now guaranteed in section 35(1) of the Constitution Act, 1982.  Unfortunately, as the Court has noted, in the past these principles were often honoured as much in the breach as in the observance, giving rise to difficult questions as to how they may best be implemented in modern times and how past injustices best acknowledged and remedied.

The Honour of the Crown

In grappling with these questions, the Court has increasingly been drawn to the concept of the “honour of the Crown” as the overarching principle of Aboriginal and treaty rights – one that invigorates the jurisprudence on Aboriginal rights as a whole and acts as a touchstone for the reconciliation of those rights with those of the larger Canadian community.

In such decisions as Haida Nation (2004) and Manitoba Metis Federation (2013), the Supreme Court has held that the honour of the Crown requires that Aboriginal rights be determined, recognized and respected.  This process must observe the basic principles implicit in the Crown’s historical relationships with Aboriginal peoples as well as fundamental principles of justice and human rights.

The honour of the Crown also infuses the processes of treaty-making and treaty interpretation, so that the Crown must act with honour and integrity, avoiding even the appearance of “sharp dealing”.  Where treaties remain to be concluded, it requires the Crown to engage in negotiations with Aboriginal peoples leading to a just settlement of Aboriginal claims.

Further, the honour of the Crown gives rise to a duty to consult with Aboriginal peoples and, where appropriate, to accommodate their claims, in instances when the Crown contemplates an action that will affect a claimed but as yet unproven Aboriginal interest.

Finally, as the Supreme Court has recently held, the honour of the Crown requires the Crown to fulfill its constitutional obligations to Aboriginal peoples in a diligent and purposive manner.

The Precedence of the Royal Proclamation

In a sense, these judicial developments are all prefigured in the words of the Royal Proclamation, penned two and a half centuries ago, where the Crown declares in resounding terms:

Whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, which whom We are connected, and who live under Our Protection, should not be molested or disturbed …

And whereas great Frauds and Abuses have been committed in the purchasing Lands of the Indians, to the great Prejudice of Our Interests, and to the great Dissatisfaction of the said Indians; in order therefore to prevent such Irregularities for the future, and to the End that the Indians may be convinced of Our Justice, and determined Resolution to remove all reasonable Cause of Discontent …

The Crown goes on to enact specific measures to address these problems. But the Proclamation’s work is not yet done. Today, 250 years later, ‘reasonable Cause of Discontent’ remain.

Brian Slattery is a professor of law and distinguished research professor at Osgoode Hall Law School, York University.

This week ActiveHistory.ca will be running a special series of 14 essays jointly published with the Robarts Centre for Canadian Studies commemorating the 250th anniversary of the 1763 Royal Proclamation on 7 October. A full list of essays in this collection can be found here.