By J.R. Miller
Because its concluding paragraphs deal with First Nations and their lands, the Royal Proclamation of 1763 is sometimes referred to as “the Indians’ Magna Carta.” Many people regard George III’s policy for the new territories the United Kingdom had acquired following the Seven Years’ War as the guarantor of Aboriginal title law in Canada today. Its greatest champions argue that it is like the foundation of constitutional government and law in Britain, the document that the barons made King John sign in 1215.
Is the Royal Proclamation as central to Aboriginal rights in Canada as the Magna Carta is in the UK? Or have the so-called ‘Indian clauses’ of the Royal Proclamation been a dud so far as First Nations’ rights are concerned? Have Indigenous peoples not been systematically stripped of their traditional territories by rapacious settler societies that emerged in Canada as they did in other former British colonies of settlement?
As other essays in this collection demonstrate, the policy document for eastern North America that King George III issued in October 1763 certainly did not single out First Nations’ rights for attention. Its first eleven paragraphs dealt with the boundaries of newly acquired territories and their institutions of governance and law. Only the last five paragraphs addressed First Nations’ issues. First, the Proclamation effectively recognized some sort of Indigenous rights to possess territories that lay beyond existing colonial boundaries and the height of land to the west of the Thirteen Colonies. These lands, it said, were “reserved to the … Indians.” Then, the document specified the protocol by which these protected lands could legally be acquired. To discourage free-lancing by land speculators, the Proclamation said that the reserved and protected lands could be obtained only by the Crown, acting through its appointed agents. These crown agents could only negotiate for Native land “at some public meeting” called “for the Purpose by the Governor.”
These provisions aimed to prevent Britain being dragged into conflicts with First Nations. Before the 1760s, unscrupulous land speculators in the Thirteen Colonies had sometimes obtained a fraudulent ‘deed’ from a Native American by bribery or alcohol, knowing that the putative vendor had no authority to surrender lands that belonged to his community. When innocent homesteaders who purchased lands from the speculator tried to establish farms in Indian territory, there was push-back from the Natives that sometimes resulted in warfare between First Nations and colonial troops. It was to end this danger that the Proclamation closed the interior of the continent to settlement, regulated access to it by traders, and promulgated the rules for exclusive Crown purchase of Native lands.
In practice, the Proclamation was only partially successful in protecting First Nations’ lands from fraud and conflict. Beginning in 1764, the custom of having British-appointed governors and Indian Department officials conduct negotiations for First Nations’ lands evolved in what is now southern Ontario. Although irregularities occurred – the governor of the region twice had to issue ordinances reminding everyone of the rules – by the 1820s a system of treaty-making for First Nations’ lands was established. As direct control by Britain’s Indian Department gave way in stages between the 1840s and 1860s to administration of Indian affairs by colonial governments dominated by settlers, the degree of loyalty to the Proclamation protocol for dealing for lands waned.
The staying power of Crown monopoly over negotiating for First Nations’ land was illustrated, though, in the 1870s. When the government of Sir John A. Macdonald had to devise a policy for dealing with the tens of thousands of First Nations who occupied the southern portions of the Hudson’s Bay Company lands in the West, it reached instinctively for the Proclamation-based protocol. In striking contrast to the practices of the American government, which was busy through the 1870s fighting bloody Indian wars in the West, Canada appointed Crown commissioners to negotiate with First Nations for peaceful access to lands for settlement. Quietly and quickly, seven territorial treaties were negotiated that provided for unopposed settlement of a vast inland empire. From 1899 until 1921 in the North, the Crown similarly negotiated another four territorial treaties that gave Canada uncontested access to an enormous storehouse of natural resources. As had been the case in the middle of the nineteenth century, though, as time went on and the non-Native population outstripped the Indigenous, the government’s adherence to Proclamation-based protocol weakened.
What revived the Proclamation as a shield of First Nations’ rights was the courts. Whereas the highest court in the British Empire in 1888 had ruled in St. Catherine’s Milling and Lumber Company v. The Queen that the Proclamation recognized only “a possessory and usufructuary right dependent on the goodwill of the Sovereign.” In other words, Indigenous people had a right of usage that Crown and parliament could abridge or cancel. Beginning in the 1970s, the Supreme Court of Canada began to revise this view of the Proclamation and the law of Aboriginal title. First, in 1973 the Calder decision recognized that Aboriginal title existed in law, and could therefore presumably be enforced. Then, the same Court in the 1997 Delgamuukw decision found that Aboriginal title was something substantive and robust. It was, the Supreme Court said, “a right to the land itself.”
This rapid evolution of judicial interpretation was attributable to two things. First Nations now were increasingly assertive and effective in advancing their rights. Second, an energetic group of lawyers – Aboriginal and non-Aboriginal – fashioned an expansive understanding of Aboriginal rights in law. As well, when Canada’s political leaders refashioned the country’s constitution in 1982, they referenced the Proclamation in the Charter of Rights and Freedoms.
A quarter of a millennium after its promulgation, does the Royal Proclamation of 1763 stand as “the Indians Magna Carta”? Perhaps, but never wholly, and largely belatedly. The Proclamation is better understood as a barometer of Native-newcomer relations in Canada. When non-Natives need First Nations, relations are harmonious. Proclamation principles are then respected. But when the relationship cools, usually because non-Natives no longer think they need Aboriginal people economically, the commitments concerning Aboriginal lands in the Proclamation are scouted by governments dominated by non-Natives. Whether Magna Carta or barometer of Native-newcomer relations, though, the Royal Proclamation is undoubtedly critically important to Indigenous affairs in Canada today.
J.R. Miller is a professor and Canada Research Chair in Native-Newcomer Relations in the Department of History at the University of Saskatchewan.
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.