Some time ago I wrote a post reviewing a book by Peter Russell on the history of the relationship between the British and Canadian governments on the one hand and the peoples inhabiting what is now Canada at the time of the British conquest on the other. The ‘peoples’ referred to were, of course, the native inhabitants – the Indians – and the French.
In that post I briefly outlined the content and history of the Royal Proclamation of 1763 and the different interpretations of the Proclamation by the British on the one hand and the Indians on the other. This is potentially important because the Constitution of Canada, as amended in 1982, contains two references to the rights of Canada’s Aboriginal People:
- 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
- (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763 [emphasis added]; and
- (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
- 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
Since writing the earlier post I have read more about recent discussions related to the Proclamation, its history and the relationship between it and the Treaty of Niagara. Both would seem to be building blocks of present- day settler- aboriginal relations but one rarely sees references to, or hears of, the Treaty of Niagara so I decided to explore its role here.
To briefly recap, the Proclamation was issued unilaterally by the British government in 1763 at the conclusion of the Seven Years War between Britain and France as a result of which the British greatly expanded their territory in North America.
The British, following their victory, wanted to improve relations with the Indians around the Great Lakes, many of whom had supported the French in the war. Further, after the war the British had alienated the Indians, having failed to observe diplomatic conventions important to them so that some Indian Nations – led by Pontiac – resumed fighting the British in what is known as Pontiac’s War.
The Proclamation was intended to protect the Indians from incursions and exploitation by white settlers.[1]
It was discussed with Indian leaders only in the summer of 1764, several months after it was issued, at a conclave attended by some 2,000 Indian leaders at Niagara[2]. That conclave resulted in an agreement between the British and the Indian leadership known as the Treaty of Niagara.
One would presume that the Treaty of Niagara represents a common understanding of the Proclamation’s intent and meaning. There is, however, a stark difference between the Proclamation and the Treaty with respect to who – the British or the Indians – are sovereign in the newly conquered British North America lands: the Proclamation declaring British sovereignty and the Treaty declaring, if not Indian sovereignty, at least a partnership with respect to the lands newly acquired by Britain. So I find it interesting and surprising that the Constitution Act of 1982 contains no reference to the Treaty of Niagara. That said, the significance of Niagara continues to be the subject of discussion and debate in the community of legal scholars concerned with indigenous rights.
There are several references in the Proclamation[3] to British ‘Sovereignty’ and ‘Protection’:
– “And 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, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds…”
– “And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under Our Sovereignty, Protection, and Dominion, for the Use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three New Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company”
– “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.”
-” if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, that same shall be purchased only for Us, in Our Name”,
Peter Russell states: “the spirit and intent of the Royal Proclamation can best be discerned by reference to a treaty with First Nation representatives at Niagara in 1764. …. When we refer to the Treaty of Niagara, we mean the Crown’s commitments in the 1763 Royal Proclamation, to the extent they are consistent [emphasis added] with the Great Covenant Chain and the Two Row Wampum.”[4]
The reference to the Chain and the Wampum relates to the Indigenous protocols that were used by Sir William Johnson, the representative of the British government, and the Indigenous Peoples to secure the latter’s agreement. The Great Covenant Chain, presented by the British, showed “twenty-four nations linking arms with the British Crown”. The wampum belt, used by Indigenous people to communicate “their understanding of the relationship they wished to have with the British”, contained two rows symbolizing, according to a leading Native American scholar quoted by Russell “two paths of two vessels, travelling down the same river together. One a birch bark canoe, will be for the Indian people, their laws, their customs, and their ways. The other, a ship, will be for the white people, and their laws, their customs and their ways. We shall each travel the river, side by side, but in our own boat. Neither of us will try to steer the other vessel.”
Thus, First Nations’ understanding of the Proclamation appears to have been fundamentally different from that of the British. Russell states: “The key difference between the Royal Proclamation on its own and acceptable terms of peace with the Indian nations is that the Indians would never have accepted British sovereignty over them.” And, according to Russell, there is evidence that Johnson understood this. “The trouble was that Johnson’s understanding of the relationship forged at Niagara did not have deep roots on either the British or the American side.” Thus, the Treaty of Niagara was “vulnerable to being undermined and betrayed on the British and later the Canadian side in the years to come.” Further, Russell states (page 51): “What those rights and freedoms mean [i.e., those of Section 25 of the Constitution Act, 1982] must surely be interpreted in the context of the Treaty of Niagara.”
Discussion continues to this day as to the appropriate interpretation of the Royal Proclamation in light of the discussions at Niagara. The indigenous legal scholar Prof. John Borrows maintains that the terms of the Treaty of Niagara remain definitive, as argued by indigenous leaders well into the 19th century, and that the provisions of the Royal Proclamation must be interpreted taking them into account.
Prof. Borrows[5] states that “the wording of the Proclamation is unclear about the autonomy and jurisdiction of First Nations”. Borrows argues, however, that
“The promises made at Niagara and echoed in the Royal Proclamation have never been abridged, repealed, or rendered nugatory. Since Aboriginal rights are presumed to continue until the contrary is proven, the supposed ‘increasing weight’ of colonial history and its disregard of the Treaty of Niagara does not render void the Aboriginal rights under its protection. Furthermore, since the Proclamation is not a ‘unilateral’ declaration of the Crown, but part of a treaty into which First Nations had considerable input, it therefore must be interpreted as it would be ‘naturally understood’ by them. …
In light of the history and subsequent agreements in relation to the Treaty of Niagara, the Royal Proclamation can no longer be interpreted as a unilateral declaration of the Crown. As a result, the Royal Proclamation can no longer be interpreted as a document which undermines First Nations rights. Colonial interpretations of the Royal Proclamation should be recognized for what they are – a discourse that dispossesses First Nations of their rights.”
The Land Claims Agreements Coalition[6] organized a symposium in 2013 – the 250th anniversary of the issuance of the Royal Proclamation – at which several practicing lawyers and academics discussed its history and current relevance.[7]
The Treaty of Niagara is mentioned in several of the papers including an opening address by the Minister of Aboriginal Affairs at the time, Hon. Bernard Valcourt. He said: “The issuance of the Royal Proclamation and the accompanying promises made at Fort Niagara in 1764 laid the foundation for the constitutional recognition and protection of Aboriginal rights in Canada.” (p.12, emphasis added)
There were numerous references to the Treaty of Niagara by speakers at the symposium :
– Brian Slattery (Professor of Law, Osgoode Hall Law School): “The Proclamation reflects an expansionist imperial viewpoint – one far more favourable to British interests than the facts warranted. The true situation may be gleaned from the Treaty of Niagara, which was concluded the following year, in the summer of 1764. … There were some two thousand chiefs in attendance and over twenty-four Indigenous nations represented.” (p.24)
– Colin Calloway (Professor of History and Native American Studies, Dartmouth College): “As Anishinaabe scholar John Borrows points out, the Proclamation must … be read and understood in tandem with the exchange of wampum belts that took place at Niagara the following summer”, i.e.in 1764.
– Mark D. Walters (Professor of Law, Queen’s University): “The word of the Proclamation is largely dead as a direct source of written law, but its unwritten ethic is very much alive and perhaps only just beginning to flourish in our law. Indeed, the focus on the ethic rather than the text of the Proclamation may be a good thing for two reasons. First, it is possible, given the peculiarities of the Proclamation’s wording, that it simply never could have been a meaningful textual foundation for Aboriginal rights in Canada today. Second, and more importantly, the meaning of the Proclamation in our law, like the interpretation of Aboriginal and treaty rights generally, must take into account the Aboriginal perspective. As John Borrows so effectively argues, the true normative life of the Proclamation is not found in the unilateral expression of sovereign will by a distant king, but in the way in which the general principles affirmed by the Proclamation were accepted by Indigenous peoples at the treaty council fires – like the famous Covenant Chain treaty council of 1764 at Niagara.” (p.67, emphasis added)
Walters continues: “Although there have been statements by judges at the highest levels that the Proclamation itself is not a treaty and does not represent a set of treaty rights, perhaps the better view is the one expressed by the Ontario Court of Appeal in the recent case of Chippewas of Sarnia Band v. Canada, that the Proclamation started as ‘a unilateral declaration of the imperial Crown’ but, after treaty councils like the one held at Niagara in 1764, it became ‘a formal part of the treaty relationship with the Indian nations’”. (p.67)
– Ghislain Otis (Professor of Law, University of Ottawa): Otis focuses on the limits of Indigenous sovereignty under the Royal Proclamation and the Treaty of Niagara, arguing that “the Proclamation does not embody an absolutist application of terra nullius [i.e. land unoccupied before the coming of colonists] since the Indigenous peoples retain a limited right to own the land, but they purportedly have been unilaterally deprived of their status as fully sovereign nations capable of entering into free relationships with other nations.” (p.76)
This view has been stated both by the Government of Canada and the Supreme Court of Canada. Otis states: “In its very first authoritative interpretation of section 35, the Supreme court stated that ‘there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.” (p.77, emphasis added)
It is interesting that Otis refers to the Court’s decision with respect to Section 35 whereas the reference to the Royal Proclamation – and by implication one might argue to the Treaty of Niagara – is in Section 25. I am unaware of any court decisions that consider the joint implications of the Proclamation and the Treaty of Niagara[8] – an interesting prospect!
Though interest in the Royal Proclamation and the accompanying Treaty of Niagara has revived in recent years following passage of the 1982 Constitution Act, this follows a long period beginning in the early 19th century when both the Proclamation and Treaty were increasingly ignored. This period began, states Prof. J.R. Miller “as heavy immigration from Britain began to fashion a settler society in Upper Canada in the decades following the war of 1812. Native-newcomer relations deteriorated and Crown observance of the requirements of the Proclamation lessened.”[9] Miller states, “judging by the Upper Canadian experience in the century following the Royal Proclamation of 1763, awareness of and subscription to the Proclamation’s requirements in relation to First Nations land was nearly dead.”
Treaty making revived in the second half of the 19th century following Confederation when Canada had to integrate the Hudson’s Bay Company lands. The so-called ‘Numbered’ Treaties were negotiated with Indians in the southern prairies between 1871 and 1877. According to Miller there was “more dissonance than harmony” in this process. “To Euro-Canadian officials, the treaties were simply contracts for land, the contents of which were embodied in the written, or government’s, version of the agreement. First Nations had a vastly different, far richer understanding of what they had agreed to in the negotiations. To them the pacts were covenants, that is, agreements to which the Creator was a party along with the two human agents…… As well, First Nations who entered treaty regarded everything that was said at the negotiations …. as part of the treaty” not just the written part. (p.98-99).
And, of course, the Indian Act became law in 1876 “premised on the First Nations being legal children, minors, and the federal government, as the Crown’s representative, playing the role of their trustee or overseer”. (p.99)
Although a few more treaties were negotiated in the early years of the 20th century there was little action for many years until the 1970’s when First Nations court action forced the government of Quebec to negotiate the James Bay agreement and the Courts became involved in affirming First Nations rights beginning with the Calder case (1973). In that case the Supreme Court of Canada ruled that “at some point the Nisga’a [of BC] had held aboriginal title to the lands they claimed.” (p.102) This was a landmark case argued for the Nisga’a by the recently deceased Thomas Berger.
Miller concludes his paper (p.104) as follows:
“If Canadians are to overcome the problems that have emerged in the Crown-First Nations relationship, they will need to rediscover the desire to establish kinship rather than legalistic relations with the Indigenous population. …..The Crown and Canadians need to rediscover the spirit of the Royal Proclamation of 1763’s clauses on First Nation’s territorial rights and treaty making,and appreciate that they were based on Indigenous practices that aimed at creating kinship between Natives and newcomers as the basis for a harmonious and fruitful relationship.”
[1] The population of what is now Canada north and west of the Great Lakes was miniscule at the time, so the immediate impact of the Proclamation was on residents of the thirteen colonies along the Atlantic seaboard. Colin Calloway, an American historian, states [The Proclamation of 1763: Indian Country Origins and American Impacts, in Keeping Promises: The Royal Proclamation of 1763, Aboriginal Rights, and Treaties in Canada, edited by Terry Fenge and Jim Aldridge, McGill-Queen’s University Press, Montreal, 2015.] that the Proclamation/Treaty of Niagara was not well received in Britain’s American colonies, especially among land speculators of whom George Washington was one: “Their ability to make profits depended on being able to convey clear title to the lands in which they invested, and they could not, now, buy and sell western lands legally. The new measures adopted in 1763 ‘infuriated Virginia land speculators’” (p.40) “When Virginians declared independence from Britain in 1776, they immediately adopted a state constitution that nullified both the Proclamation of 1763 and the Quebec Act”. (p.43)
[2] The logistics of convening such a conclave in the 18th century are truly mind boggling. The Indian leaders came from all over eastern North America; it would have taken many weeks to inform them of the meeting and considerable time also for many to travel from their home territories to Niagara. During the winter of 1764 Sir William Johnson, “Britain’s man on the spot in eastern North America, had copies of the Proclamation circulated to First Nations throughout the eastern half of North America, and in the summer of 1764, he assembled more than two thousand leaders from twenty-four First Nations at a major conference at Niagara.” J.R. Miller, Canada’s Historic Treaties, Chapter 7 in Keeping Promises: The Royal Proclamation of 1763, Aboriginal Rights, and Treaties in Canada, ed. Terry Fenge and Jim Aldridge, McGill-Queen’s University Press, 2015
[3] The Proclamation has three parts: one stating the way Britain’s new colonies were to be governed, another outlining the remuneration to be paid to military personnel who had served in the Seven Years War and the third stating the way the British government was to deal with the Indians.
[4] Russell, Canada’s Odyssey, p.50.
[5] Prof. Borrows has written an interesting article on the Proclamation and its relationship to the Treaty of Niagara. (Wampum at Niagara: The RoyalProclamation, Canadian Legal History, and Self-Government, https://www.sfu.ca/~palys/Borrows-WampumAtNiagara.pdf) from which I have taken some of the following narrative. Borrows concludes that, as I note here, the Proclamation must be considered jointly with the Treaty of Niagara. In that context it cannot be considered a unilateral declaration nor, as Borrows says “can one interpret its meaning using the written words of the document alone”.
[6] The Land Claims Agreements Coalition (www.landclaimscoalition.ca), a group of First Nations treaty governments, works to ensure that comprehensive land claims (modern treaties) and associated self-government agreements are respected, honoured and fully implemented.
[7] The proceedings were subsequently published as Keeping Promises: The Royal Proclamation of 1763, Aboriginal Rights, and Treaties in Canada, edited by Terry Fenge and Jim Aldridge, McGill-Queen’s University Press, Montreal, 2015. Page references in what follows are to this volume.
[8] There is a reference to Niagara in the ruling of the Canadian Human Rights Tribunal decision in July 2020 relating to the alleged inequitable funding of child welfare services on First Nations reserves. The Tribunal’s ruling states: “While the Panel’s reasons and present ruling do not turn on the supporting doctrine referred to above [i.e., the treaty process including explicit reference to the Treaty of Niagara], it does find it instructive and consistent with the Panel’s views on the law in regards to treaties and their important status in Canada’s constitutional framework. This supports the primacy of treaties over the Indian Act.”
[9] J.R. Miller; p. 93, Canada’s Historic Treaties, in Keeping Promises.