Peter Russell, a political scientist, has recently published an interesting book of this title (University of Toronto Press, 2017).
Russell argues that “the existence of nations or peoples preceding Britain’s imperial presence in Canada, and Britain’s decision not to attempt a complete conquest of these peoples, are the crucial facts about Canada’s founding.”
Of particular interest to me is his recounting of the history of the Royal Proclamation of 1763 that set out, inter alia, the British intent with respect to relations with Indigenous People in their newly acquired territories. This is relevant to today in that reference to the Proclamation became a part of our Constitution in the Constitution Act of 1982.
Section 25 of the Constitution Act, 1982 reads as follows:
“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; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.”
And Section 35, which sets out those rights, states:
“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.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”
I had been aware of the Proclamation but knew little of its genesis and meaning. It’s a story with which we all should be familiar. In what follows, therefore, I extract the story in summary form from Russell’s book.
But first back to Russell for some context.
He argues that “Canadians, all thirty-five million of them, have not agreed that they belong to a single ‘people’ whose majority expresses the sovereign will of their nation. The holdouts are the French Canadians and members of the nations indigenous to North America whose historic lands are in Canada. For many in both groups, their primary social identity and political loyalty attach to ‘nations’ or ‘peoples’ older than the Canada created by Confederation. These Canadians do not accept that the tide of history has somehow washed away these nations of their first allegiance or diluted their constitutional significance. Their infusing presence as ‘nations within’ Canada is fundamental to understanding Canada, as is the often troubled, uncomfortable accommodation of these ‘nations within’ by the country’s English-speaking majority.”
Russell’s book tells the story of relationships between the British on the one hand, and the French and First Nations people respectively, on the other beginning with the Treaty of Paris in 1763 when the British – having won the Seven Years War – were granted the formerly French territories in North America.
The incomplete conquests of the title are:
- “Britain’s acquiescence in the continuation of a French-speaking, Roman Catholic community with its own distinctive laws”, and
- that relating to the Indigenous peoples. “In the many battles and wars between the nations native to North America and European powers in the centuries before the founding of Canada, both sides experienced victories and defeats. But there was certainly no overall conquest of the Indigenous peoples, by the British or by any other European power.”
The Treaty of Paris, signed following the British victory in The Seven Years War (1756-63), resulted in France ceding to Britain its possessions in North America including “all of Canada and Louisiana east of the Mississippi”. This led to the so-called Pontiac uprising, a rebellion against the “seemingly unending encroachments of Europeans on land that had been occupied for generations by Indian communities”. According to Russell: “This outbreak of war by Indian nations against Britain should not be regarded as a rebellion, for these peoples had never been British subjects. Rather, it should be seen as the one great effort of native North American nations to turn back what seemed to be the inexorable encroachment of Europeans on their societies and their lands.”
Also in 1763 the British monarch issued the Royal Proclamation. It contained words that, Russell argues, were interpreted differently by the British on the one hand and the Indian Nations on the other.
The Preamble to the Proclamation states: “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…”
Russell argues that “the Indian nations are treated here ….. as self-governing allies who are promised Britain’s protection. The upside of this from the Indians’ vantage point was that Britain recognized the political independence of the Indian nations and had no intention at that point of imposing its direct rule on them. But the downside was that underlying the entire document is an assumption of British sovereignty over the whole of the territory reserved for the Indians. That assumption, Russell argues, was implicit in the phrasing that these nations ‘live under Our Protection’.”
Russell states: “Of course the native peoples did not share that understanding of the legitimate scope of British sovereignty. They viewed their nations as independent allies of the British Crown with their relations regulated by mutually agreed upon covenants or treaties.”
It’s important to note that the Royal Proclamation was issued unilaterally by the British government without any consultation with the Indians; as such by itself it could not be regarded as a ‘Treaty’. Following the Pontiac uprising the British had to obtain buy in from the Indian nations. This they did in the Treaty of Niagara, negotiated with the Indians on behalf of the British by Sir William Johnson (the King’s “personal envoy” to the Indian nations) in the summer of 1764. Russell states: “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 [emphais added] with the Great Covenant Chain and the Two Row Wampum.” (page 50)
The reference to the Chain and the Wampum relates to the Indigenous protocols that were used by Johnson and the Indigenous Peoples to secure their 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 (Robert A. Williams) 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.”
As is implicit in the symbolism of the two row Wampum belt, the Indians did not accept British sovereignty. 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.”
Russell states, with a supporting quote from a letter from Johnson to a colleague, 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.”
The wars In the later years of the 18th century – the American Revolution and a number of them between the new USA and Indian Nations – resulted in the demands of European settlers dominating consideration for native people. The Treaty of Niagara and the Royal Proclamation had provided for large areas of the northwest to be preserved for the Indian Nations but the British failed to protect them in the face of US invasions. Russell cites “three betrayals” by the British, the last of which occurred following the War of 1812. During that war the Indians had fought with the British against the U.S. During peace negotiations, Russell says, the British sought the establishment of an independent Indian state for which there was considerable support in the UK government. But the US disagreed and the British backed off.
After the War of 1812 British support of the Indians declined; they – Indigenous people – were no longer needed as allies in war, waves of European settlers needed land and governments in Canada increasingly had jurisdiction over domestic matters. They acted in support of the European settlers.
Russell states that policy makers in London were always far more sensitive than settlers – and their governments – to the rights and interests of native peoples. So “a settler colonialism emerged in British North America, Australia and New Zealand that was much tougher and less liberal in relations with Indigenous peoples than were the official policy and law of the empire.” As a consequence ” the transition from imperial control to responsible government in the settler colonies was bad news for native peoples”.
It was all downhill from there for Indigenous peoples in Canada:
- A Gradual Civilization Act was passed by the government of the Province of Canada in 1857 which permitted Indigenous people to give up their Native status in exchange for voting rights and some land.
- Then in 1869 came the Indian Act which essentially gave the federal government control over Indigenous peoples. As the Prime Minister of the time, Sir John A. Macdonald, said in Parliament the goal was “to do away with the tribal system and assimilate the Indian people in all respects with the inhabitants of the Dominion, as speedily as they are fit to change”. (as cited in Russell, page 189)
- And, says Russell, “Almost every year the Indian Act was amended to add new measures of control, many of them requested by the government’s agents in the field”.
T’he downhill slide continued until the Constitutional developments of the late 1970’s and early ’80’s followed, among other developments, by the Royal Commissions on Aboriginal Peoples in the 1990’s and Truth and Reconciliation in the early years of this century, and by commitments by governments to improve the relationship.
It seems clear that central to that improvement and to meaningful reconciliation will be a mutually agreed modern day interpretation of the Royal Proclamation.
Since the election of a Liberal government in 2015 there has been much talk of ‘reconciliation’ but, I think, little clarity as to the specifics of its meaning.
The Globe and Mail, in a recent editorial (October 23, 2017) noting a breakdown in talks between native leaders and the federal government, stated that the process of reconciliation is “hampered by the lack of a definition of what reconciliation is, and what it will look like if and when it is achieved”. Noting that a fundamental disagreement exists between First Nations leaders on the one hand and the government on the other: First Nations arguing essentially for a veto power over projects that effect Indigenous territory while the government argues that, while it must, as the Globe says “seek informed consent in good faith, … it can move forward in the national interest if that consent can’t be obtained.” “It’s a huge difference of opinion”.
And one must question, as the Globe does, whether, given that difference, which is similar to the different interpretations of the Royal Proclamation by the two sides in the 18th century, “reconciliation” can ever be achieved.
The Globe again: “These are the great mysteries of reconciliation: What does it look like? Can it realistically be achieved? As far as we can tell, no one has a clue.”
That, I think, is an extreme position. There have, after all, been numerous Supreme Court decisions weighing in on the matter, and the meaning of the term ‘reconciliation’ has been and continues to be explored in academic circles. One hopes – and expects – that governments on both sides will continue to give active and serious consideration as to how it can be made operational to the mutual satisfaction of all.