Charbonneau: Betting on the Royal Proclamation of 1763

Two news stories from last year were linked; one obscure and the other misunderstood. The first was the 250th anniversary of the Royal Proclamation of 1763. It didn't help that it was called "the Magna Carta of First Nations" since that document is equally obscure.

They might be obscure but both documents are fundamental to our daily lives. The Magna Carta of 1215 forever established the rule of democracy over the whims of monarchs. The Royal Proclamation of 1763 lay down the principals of Native land ownership.

Before the proclamation, colonial nations such as Britain and France could set foot on new worlds and simply claim them on behalf of their countries. Or if the lands were occupied, the occupants were driven off the land. "They fell upon their own knees, and then upon the Aborigines," goes an old quip about the Puritans who settled colonial New England.

When the imperial claims of colonizers failed and when Natives began to push back, then settlers resorted to dubious land purchases.

The Royal Proclamation changed all that. No longer could settlers simply push Natives off their land nor could they make suspicious land purchases. The proclamation states:

"And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained."

"That Purpose first obtained" was a process through which treaties were to be negotiated. Notice of the meeting between the crown and Natives had to be made in advance. Land negotiations had to take place "at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony . . ." Private deals between Natives and settlers were invalid.

In some parts of Canada, such as in B.C., treaties never took place. Courts have since ruled that Native land has never been ceded. In the case Delgamuukw v. British Columbia, the Supreme Court dismissed the B.C. argument that Native land was subject to the "pleasure of the crown."

And even where treaties were negotiated, the outcomes were often suspect says Christopher Moore in Canada's History magazine. In the same way that history is often written by the conquerors, the treaty texts were written by government negotiators who wilfully or innocently misrepresented events as they saw them. However, First Nations leaders understood those treaties as sharing the land not the transfer of title.

Our highest courts agree with the Native interpretation. Treaties would have to be accepted as "they would naturally be understood by Indians" and not as written by government negotiators.

The Proclamation of 1763 is tied to another news story: the Idle No More movement which was triggered by the Harper government's rewrite of the Navigable Waters Protection Act of 1882. New legislation reduces consultation with Natives in the construction of projects, such as pipelines, that cross waterways on Native lands.

The force of the ancient proclamation collides with the government's intentions to see the Northern Gateway pipeline built. I'm betting on the proclamation.

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