Nova Scotia and the Paradox of the Royal Proclamation

By Thomas Peace

Today marks the 260^th anniversary of the Royal Proclamation of 1763.

Over the course of Canadian history, there are few documents that carry more weight. With less than 2,000 words, the Crown laid out in this document a precedent in British Canadian law that normalized territorial treaty-making, and recognized Aboriginal Rights and Title. In 1982, the Proclamation was enshrined in section 25 of Canada’s Charter of Rights and Freedoms.

Designed to sort out jurisdictional issues in North America following the Seven Years’ War (1756-63), the Proclamation served four important purposes:

1. It established the boundaries of four new British colonies: Quebec, East Florida, West Florida, and Grenada; it also modified the boundaries of Nova Scotia and Georgia.
2. It provided a schedule for assigning free land to veterans of the war.
3. It established a protocol for British administrators to follow regarding colonial expansion onto Indigenous Lands.
4. From the British perspective, it reserved for Indigenous nations the Land lying to the west of the Appalachian Mountains.

At its core, the Proclamation is the document that set out a process for British colonial settlement and jurisdiction that continues to define the world in which North Americans live today.

There’s a problem, though: the principles outlined in the Proclamation were muddied by the on-the-ground realities of eighteenth-century life in ways that clearly resonate today. Nothing demonstrates this better than the colony of Nova Scotia’s origin story: there, the Proclamation’s provisions have never been fully adopted.

Today’s Nova Scotia marks its beginning in the decade and a half before the Proclamation was issued. While there are other dates we might point towards when we could consider the colony’s beginnings (such as William Alexander’s 1621 claim to the Land, or the 1713 Treaty of Utrecht, which pushed the French Empire off what is today mainland Nova Scotia), it was not until Halifax was founded in 1749 that the British signaled any serious intention to claim Mi’kma’ki as part of its empire.

Over the following decade, Halifax’s founders built several of the colony’s core institutions, including a culture of journalism, court system, and representative politics. This decade also extended a long history of British diplomacy with Indigenous nations. Following several years of violence, as Britain occupied Kjipuktuk (Halifax Harbour, an important place for Mi’kmaq from time immemorial), a regional culture of Peace and Friendship treaties was extended eastward from Tewopskik/Annapolis Royal, culminating in the treaties of 1752 and 1760/61.

This culture of treaty making developed from several decades of British diplomacy with North American nations.

The first Peace and Friendship treaties were signed following Metacom’s War (AKA King Philip’s War) during the late-1670s. These treaties were renewed periodically thereafter as New Englanders, or the British military, pushed northeastwards onto Wabanaki and Mi’kmaw Lands without permission, causing violence and war. The first of these treaties in Mi’kma’ki was ratified over several years between 1725 and 1728.

In addition to treaties, tensions between the British and North American nations also led British policymakers to issue other guidelines to mitigate violence.

In the decades following their capture of the French fort at Tewopskik (Port Royal) in 1710, the British Board of Trade instructed the Nova Scotia governor to win over the Mi’kmaq by “Degrees not only to be good Neighbours to His Majesty’s Subjects, but likewise themselves become good subjects to His Majesty.”[1] Generally, the British encouraged their North American representatives to hew more closely to French policy of gift-giving and diplomacy rather than provoking violent confrontation.[2]

It was upon this shifting approach to imperial policy that, just two years before the Proclamation of 1763, the Crown drafted instructions to its North American governors ordering them to avoid granting land to colonists if it might be contested by Indigenous nations:

“We therefor taking this matter into Our Royal Consideration, as also the fatal Effects which would attend a discontent amongst the Indians in the present situation of affairs, and being determined upon all occasions to support and protect the said Indians in their just Rights and Possessions and to keep inviolable the Treaties and Compacts which have been entered into with them, Do hereby strictly enjoyn & command that neither yourself nor any Lieutenant Governor… do upon any pretence whatever on pain of Our highest Displeasure and of being forthwith removed from your office, pass any Grant or Grants to any persons whatever of any lands within or adjacent to the Territories possessed or occupied by the said Indians or the Property Possession of which has at any time been reserved to or claimed by them.”[3]

The resonance with the Royal Proclamation that came two years later is clear. But, while the Proclamation makes sense within the framework of this diplomatic trajectory, the on-the-ground realities in Mi’kma’ki were much more complex.

In 1754, amidst renewed tensions between the British and Mi’kmaq, Mi’kmaw leaders sent the British a letter outlining their conditions for peace. Among their demands was a desire for exclusive jurisdiction to a territory that stretched from Beaubassin to Minas, up the Shubenacadie River and down the Musquodoboit to the Atlantic coast, along the Atlantic coast to Canso and along the Northumberland Strait back to Beaubassin (Baye Verte).[4]

In 1762, following the guidelines outlined by the Board of Trade, Nova Scotia Lieutenant Governor Belcher traced out a geography along similar lines. Fearing that the colony’s rising Anglo-Protestant population would illicit Mi’kmaw violence, Belcher set out a territory meant to protect the Mi’kmaq “against any molestation… in their Claims.”[5] Much like the draft instructions to British governors, the logic and language of this document was reflected in the 1763 Royal Proclamation, sent to the colonies one year later.

Map made by the author.

Though these expressions of Mi’kmaw space are very similar (and do not fully reflect Mi’kmaw perceptions then or now), there is a key difference between them. As you can see on the map above, Mi’kmaw leaders included the Shubenacadie River (marked on the map) in their claim to the Land, whereas Belcher had left it out.

It is the difference between these two proposals that reveals the paradox of the Proclamation and helps us understand the complicated histories of Aboriginal Rights, Title, and Treaties, as well as the complicated relationship between settler politics, imperial/federal law, and Indigenous law.

The founding of Halifax in 1749 had profound effect on the Mi’kmaq living along the Shubenacadie River, so much so that they resisted it violently.

In 1752, a peace treaty was signed. Though not in the treaty text (which you can read as part of the collection at Nova Scotia Archives), it is clear from the Nova Scotia Council minutes that the Mi’kmaq’s main interest was compensation for lost Land. Governor Peregrine Hopson responded to their proposal by emphasizing that the British would not interfere with Mi’kmaw hunting or fishing and that they should settle at Shubenacadie (where they already lived, marked by the green dots on the map above).

Here’s where things get even more complicated.

In 1754, the eve of the Seven Years’ War, the British were still feeling vulnerable to Mi’kmaw and French attack. Shubenacadie was a strategic position for the British and they therefore sent a surveying crew down the river. This was the act that provoked the Mi’kmaw letter later that year.

This expedition led to a short-lived military installation along the river. Completed in 1761, Fort Ellis was built at the confluence of the Shubenacadie and Stewiacke Rivers. It was designed to disrupt a central Mi’kmaw transportation route to prevent Mi’kmaw attack on Halifax.

Fort Ellis lies at the heart of the Proclamation’s paradox.

Fort Ellis was named after Henry Ellis, Nova Scotia’s absentee governor at the time. Ellis wore many hats during his governorship, the most important of which was working for the Earl of Egermont, whose office was responsible for writing the Proclamation; some historians credit Ellis as the principal drafter of the Proclamation itself.[6]

What is most striking about Ellis’s connection to both the authoring of the Proclamation and the occupation of the Shubenacadie River is the contradiction that it implies. Upon his replacement as governor in 1763, Ellis was granted two 1,000-acre estates near the fort on the Shubenacadie. There settled his nephew and several other relatives. Similarly, following the dictates of the Proclamation, veterans of the war, like Otho Hamilton, were also granted Mi’kmaw Land along the river, as well as other strategic locations in Mi’kma’ki, such as grants for Michael Francklin and Joseph Gorham in Chignecto, and Joseph Desbarres at Tatamagouche.

Map made by the author.

The central point here is that in Mi’kma’ki – where there are still no territorial treaties – the first Lands occupied by the British were Mi’kmaw Homelands; places where they have lived from time immemorial. Not only that, but in the case of Shubenacadie, it was a location the Mi’kmaq had worked to protect during the decade before these grants were made.

That unceded Mi’kmaw Land was occupied by a chief framer of the 1763 Royal Proclamation must give us pause. Although the Proclamation established a set of principles for good relationships with North American nations, on-the-ground military strategies and the use of Indigenous Land as reward for imperial service made it easy to ignore these principles, even by the framers themselves.

At the heart of the Royal Proclamation of 1763 is an inherent contradiction between cheap land and expanding settler colonies and the rights of Indigenous nations to those same coveted spaces. This is the paradox of the Proclamation, and it has played out time and again across the continent as newcomers have coveted the wealth found within Indigenous Lands.

Thomas Peace is an associate professor of history at Huron University College. A more detailed presentation of this argument can be found in his book The Slow Rush of Colonization: Spaces of Power in the Maritime Peninsula, 1680-1790.

[1] Instructions to Richard Philipps, July 14, 1719, TNA, CO 5, vol. 189, 427–28, as cited in John Reid, “Imperial-Aboriginal Friendship in Eighteenth-Century Mi’kma’ki/Wulstukwik,” in The Loyal Atlantic: Remaking the British Atlantic in the Revolutionary Era, eds. Jerry Bannister and Liam Riordan, 75–102. Toronto: University of Toronto Press, 2012, 79.

[2] John Reid has laid this out well in his contribution to Jerry Bannister and Liam Riordan’s edited collection: The Loyal Atlantic; see Reid, “Imperial-Aboriginal Friendship,” 79–80.

[3] Order of the King in Council on a Report of the Lords of Trade, November 23 1761, in E.B. O’Callaghan, ed., Documents Relative to the Colonial History of the State of New York (DRCHSNY) (Albany: Weed, Parsons and Company, 1856), Vol. 7, 472–76; Draft of an Instruction for the Governors of Nova Scotia, New Hampshire, New York, Virginia, North Carolina, South Carolina, and Georgia forbidding them to Grant Lands or make Settlement which may interfere with the Indians bordering on those Colonies, December 2 1761, DRCHSNY, Vol. 7, 478–79.

[4] Copie de la Lettre de M. l’abbé Le Loutre, August 26, 1754, C11D-8, 209–10. Wicken begins the eighth chapter of Mi’kmaq Treaties on Trial with a discussion of Laurent’s diplomacy.

[5] To Lords for Trade and Plantations, July 2, 1762, Archives Nationales d’Outre-Mer, CO 217–19, 22–28.

[6] See, for example, Edward Cashin, Governor Henry Ellis and the Transformation of British North America, (Athens, GA: The University of Georgia Press, 1994), 148; R. A. Humphreys, “Lord Shelburne and the Proclamation of 1763,” The English Historical Review 49, no. 194 (1934): 241–64, http://www.jstor.org/stable/553250;