In 1763, King George III of the United Kingdom issued a royal proclamation as an initial statement of British law and policy concerning it’s territory in the New World, both the old British Colonies along the Atlantic Coast and the newly conquered lands of New France. Remember the Plains of Abraham? Also, the Royal Proclamation declared clearly the Crown’s understanding of the status of the aboriginal people of the New World. To be clear, the Royal Proclamation is a statement of Canadian Constitutional law which remains in force today, both on its own and through the Constitution Act (1982).
The Royal Proclamation, together with the Quebec Act of of 1774, is the legal reason that Quebec continues to have a distinct Constitutional position as a Nation within Canada and as a Nation with distinct, constitutionally guaranteed legal institutions.
The First Nations are very clearly described in the Royal Proclamation as “Nations” and British Subjects are told that the people of these Nations are “not [to] be molested or disturbed in the Possession of the lands (the vast majority of the continent)] not having been ceded to Us”.
The Royal Proclamation lays out explicitly that, until such time as these lands are “ceded to or purchased by” the Crown, all lands in North America other than those in the Atlantic drainage basin are exclusively the land of the First Nations.
The Royal Proclamation continues in force in Canadian law and is re-emphasised in the Constitution Act (1982). The lands which it covers have only been legally modified by the Treaties and, in the U.S. by the Declaration of Independence, theRevolution and the resultant explicit rejection of British jurisdiction.
The Treaty Process and the Treaties are direct outgrowths of the Royal Proclamation. The negotiation of treaties between nations/states is a time honoured tradition on both sides of the Atlantic. To be effective, careful attention must be payed to language differences. This attention was not always given in negotiations with First Nations, but the Canadian Supreme Court has ruled that the First Nations’ understanding of the Treaty agreements has the same legal weight as the English treaty documents. The Treaties remain legally binding on both the Crown — Canada — and on the First Nations with whom the Crown negotiated. Both parties have responsibilities and rights under the Treaties. The most obvious right gained by the Crown is the right to share the land.
I want to emphasize something about the Treaties, about all international treaties. The Treaties are perpetual unless abrogated by one party, in which case everything is reset, or if they are changed or rescinded by mutual agreement. This fact can not be emphasized too strongly. If the Crown or the First Nation unilaterally abrogates it’s responsibilities under the Treaty, the Treaty is finished. The First Nation is no longer entitled to the benefits of the treaty, such as health care and education — benefits all non-Treaty Canadians enjoy — and, what should be most disturbing for non-Treaty Canadians, the Crown is no longer entitled to share the land which is not drained by rivers flowing into the Atlantic. That’s a lot of land which, if the Treaties were ever abrogated by the Crown (imagine that!), would revert under International and Canadian Law to the control of the First Nations.
Back before Confederation there was a thing written called The Durham Report. Seems this British guy called Lord Durham was sent out to the Canadas to try to figure out what to do about the Quebecois Problem. After tramping about in the back woods of Toronto, Montreal and Quebec City, he wrote a report which said, in brief “make a Confederation of all the remaining British North American colonies, including Quebec, and in a decade or two the French language will disappear and the people of Quebec will be assimilated into the great British melting pot!”
So, in 1867, the British Parliament passed, and Queen Victoria assented to The British North America Act (which remained our most recent constitutional document until 1982), and Lord Durham’s plan was put into effect. As I’m sure is very clear today, French didn’t disappear and Quebec remains a distinct society. I, for one, am glad that Lord Durham had myopic foresight.
I mention all this about Lord Durham and the BNA because the First Nations were treated to something similar to the myopic Lord’s report and the BNA. This parallel bit of legislation was The Indian Act, which remains pretty much the only legislative expression of the Crown’s understanding of the Treaty process and the Treaties. The fact that it is the only expression of this understanding has made many First Nations leaders fearful of having the Indian Act rescinded, despite all the evils the Act has been responsible for, including the Residential Schools catastrophe. It is changes to the Act, made without consultation, by the current government’s Bill C-45 which has, in part, spurred the Idle No More movement.
Not remarkably long after the debacle of his government’s earlier White Paper (sardonically responded to by Harold Cardinal’s Red Paper), Pierre Trudeau managed to get the British Parliament to pass and Queen Elizabeth II to assent to The Constitution Act (1982) which included the Canadian Charter of Rights and Freedoms. This document is a startling contrast to the assimilationist goals of the White Paper. Look! Aboriginal and Treaty Rights are affirmed! Oh My! It affirms “any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763” And, one of my favourite bits: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” That’s right, suckers! Assimilation is explicitly declared unconstitutional! And the Government can’t even benignly neglect Canadian cultures into assimilation. The Federal Government must preserve and enhance our cultural mosaic!
The Foundational and Constitutional documents of the magnificent experiment that is Canada come together in the Constitution Act (1982) and shout out “Assimilation No More! Honour the Treaties” On Monday, December 10, 2012, the First Nations, Metis, other Aboriginal Peoples, and their non-Aboriginal supporters came together to shout out “Idle No More! Honour the Treaties!” I, an old White guy, am proud to say that I stood and marched among the fifteen hundred in Edmonton. I, too, am a party to the Treaties. I benefit from the rights enshrined in the Treaties, and I hold my Treaty Responsibilities sacred.
I, descended of colonial settlers in Upper and Lower Canada, fully intend to be Idle No More!