Royal Proclamation of 1763
The document is referred to in s25 of the CONSTITUTION ACT, 1982. This provision details that there is nothing in Canada's Charter of Rights and Freedoms to diminish the rights and freedoms that are recognized as those of aboriginal peoples by the Royal Proclamation.
King George's Proclamation became a key legal instrument for the establishment of colonial governments in the PROVINCE OF QUEBEC, E Florida, W Florida and Grenada. It also defined the legal status of a large area in the N American interior as a vast Indian reserve. The eastern boundary of this territory, which explicitly excluded the colony of Québec and the lands of the Hudson's Bay Co, was set along the heights of the Appalachian mountain range. The western border was not specifically described. These special provisions to acknowledge and protect some rights of the native peoples in the N American interior were made in recognition of the fighting power they collectively represented.
By holding out to Indians the promise of a degree of security as the sole authorized inhabitants of the larger part of their ancestral lands, the British government was endeavouring to stabilize the western frontier of the old crown colonies along the Atlantic seaboard. The decision to formalize this limited but important recognition of native rights was hastened by news that a number of Indians following Ottawa Chief PONTIAC had successfully demonstrated their defiance of crown rule over their lands by briefly seizing several British military posts recently captured from the French. Knowledge of this act only seemed to underline for imperial authorities the self-interested wisdom of affording to native groups, many of whom had recently fought the British as allies of the French, a degree of protection from the landgrabbing expansionism of frontiersmen along the western borders of the Thirteen Colonies. The implications of doing otherwise, and of thereby incurring an enormous expense for the maintenance of law and order in the N American interior, were unthinkable to the parsimonious officials responsible for the strategic defence of the British empire.
King George reserved the western lands to the "several nations or tribes of Indians" that were under his "protection" as their exclusive "hunting grounds." As sovereign of this territory, however, the king claimed ultimate "Dominion" over the entire region. He further prohibited any private person from directly buying the interest of native groups in their ancestral soil. This exclusive right of purchase he rather reserved for himself and his heirs alone. As detailed in the Proclamation, he set out a procedure whereby an Indian group, if they freely chose, could sell their land rights to properly authorized representatives of the British monarch. This could only take place at some public meeting called especially for the purpose. It was thus that the constitutional basis was established for the future negotiation of Indian treaties in British N America. The Royal Proclamation thereby established the British Crown as the essential central agent in the transfer of Indian lands to colonial settlers.
Although it proved virtually impossible for imperial authorities to check the western boundaries of the Thirteen Colonies at the Royal Proclamation line, repeated efforts were made to hold back the pressure of colonial settlement from the larger part of those lands reserved to the Indians. Outrage against this imperial policy in the Thirteen Colonies was one of the factors responsible for the outbreak of the American Revolution in 1776. The first systematic attempts to enforce consistently the treaty-making provisions of the Royal Proclamation took place in the regions north of the Great Lakes which became designated as Upper Canada in 1791. The treaty-making procedures that evolved in this crown colony were later largely exported to the territories purchased in 1870 by the new Dominion from the Hudson's Bay Co.
Although these regions had been specifically designated in 1763 as outside the jurisdictional framework put in place by the Royal Proclamation, Canadian government officials recognized that the native peoples of the newly annexed territory had the same rights to their unceded ancestral lands as Indians in the UC area prior to the negotiation of treaties. Hence a basis of land tenure was established throughout most of the prairie provinces and northern Ontario, where 7 numbered treaties were negotiated in the 1870s, on the basic principles outlined in the Royal Proclamation of 1763.
The Royal Proclamation tends to come under close scrutiny whenever there is cause to examine the legal character of aboriginal land title. In the St Catharine's Milling case, for example, which became in 1889 the vehicle for the settling of a constitutional dispute between the governments of Ontario and the young Dominion, lawyers for the former argued that the Royal Proclamation was of no force in the legal elaboration of Indian rights. In handing down the opinion of 3 of 7 Canadian Supreme Court judges in 1973, however, Mr Justice Emmett HALL expressed quite a different view of the Proclamation. Responding to a case involving the territorial rights of the Nishga nation, he found that the basic principles of the Royal Proclamation were generally applicable in British Columbia, where most of the land remains uncovered by Indian treaties. If Mr Justice Hall's view is technically correct, the implications of this are that aboriginal land rights are legally enforceable over other large areas of the country such as the Yukon, the eastern Arctic, parts of Québec and the Maritime provinces. In these regions the treaty-making provisions of the Royal Proclamation have never been implemented.
It remains to be seen, therefore, whether the principles of the Royal Proclamation have constitutional application to all of Canada or only to parts of the country. Another question to be faced is whether the Proclamation is itself the source of aboriginal land rights, or whether it merely acknowledges and confirms pre-existing rights. The inclusion of reference to King George's statement in the Canadian Constitution Act, 1982, assures that the interpretation of his words will remain for a long time to come an important topic of attempts to clarify the precise character of aboriginal rights in Canadian law.
See also ABORIGINAL RIGHTS; INDIAN TREATIES; LAND CLAIMS; and various entries under NATIVE PEOPLE.
Royal Proclamation, Map
Author ANTHONY J. HALL
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