Jessica Kras

The Walter Gordon Symposium is an annual conference co-hosted by the School of Public Policy and Governance and Massey College. In the lead up to the 2016 Walter Gordon Symposium, students, speakers, faculty, and community members are invited to share their reflections on the theme of reconciliation between Canada and its Indigenous Peoples in the aftermath of the Truth and Reconciliation Commission and its calls to action. The symposium will take place on March 22 and March 23, 2016.

Reconciliation means coming to terms with history. It means acknowledging our past and using it to better inform our future. Given that law has historically been used to oppress Aboriginal people in Canada, reconciling the colonial legal regime with the reality of Canadian history is of particular importance to a renewed relationship between Aboriginal and non-Aboriginal peoples.

At the center of every legal discussion about reconciliation is one essential, underlying concept: land. With land comes power, resources, rights, and, of course, responsibilities. The questions of who owns land, how that ownership came about, and what it entails have been difficult ones in Canadian legal discourse. But finding satisfying answers to these questions is imperative for reconciliation. To that end, part of the process of reconciliation requires a reexamination of the entire political and legal order that has been fundamental to Canada’s understanding of its territory, nationhood, and sovereignty.

The Royal Proclamation of 1763 & Treaty of Niagara of 1764

The Royal Proclamation of 1763 and subsequent Treaty of Niagara of 1764 are two of the most important documents for tracing how notions of land ownership and sovereignty have been understood in Canada. The Proclamation was issued by King George III after the Seven Years’ War. It both claimed sovereignty over a portion of North America, and reserved land for Aboriginal peoples that would be protected from encroaching European settlement. The Proclamation states,

“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, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.”

One year after it was issued, the Proclamation was presented to a massive assembly of First Nations leaders at the Conference at Niagara. After days of discussion and gift-exchange – including the exchange of wampum – the leaders of different Nations generally agreed to the Proclamation’s terms (although the precise nature of these terms may have differed from nation to nation).

Some scholars, like University of Victoria Law Professor John Borrows, claim that, together, the Proclamation and the Treaty at Niagara made up the first treaty between Aboriginal and non-Aboriginal peoples. It therefore reflects the nation-to-nation status between the British Crown and Aboriginal peoples and stands as a positive guarantee of a right to Aboriginal self-governance. (After all, nations don’t make treaties with their own subjects; they make them with other nations). Others, however, view the Proclamation as a simple statement of British policy regarding its new North American colony. Under this view, the Proclamation imparts no legal obligations on the Crown towards Aboriginal peoples and their land.

The Canadian legal system has taken its own view of the Royal Proclamation, one that has both positive and negative implications for reconciliation. From the perspective of the Supreme Court of Canada, the Royal Proclamation marked the British Crown’s assertion of sovereignty over the admittedly occupied land that would become Canada. At the same time, the Proclamation is also considered to be one of many sources of Aboriginal title to land, and it sets out the provisions that underlie Canada’s historic and contemporary treaty-making process. It established that Aboriginal land could only be surrendered to the Crown and not sold to any private groups; in addition, surrenders to the Crown could only come through an open, public process. The initial purpose was ultimately to protect Aboriginal land from the “great Frauds and Abuses” perpetrated by European settlers, but the eventual effect was to give the Crown unparalleled power when negotiating the surrender of First Nations land. As history shows, this power was not always exercised fairly. (See J.R. Miller’s Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada for a solid historical account of the treaty-making process; a summarizing lecture can be found here.)

The Royal Proclamation of 1763 is therefore a complicated but incredibly important document from the Canadian legal perspective. On the one hand, its bald claim of sovereignty has been accepted as given in the Canadian legal system, and it established a treaty process that historically gave unequal bargaining power to the Crown. On the other hand, the Proclamation has been interpreted as a source of Aboriginal title and has been heralded by Indigenous groups as evidence of their nation-to-nation relationship with the Crown.

The Truth & Reconciliation Commission’s Call to Action #45

 The newly released Truth and Reconciliation Commission (TRC) Report calls on Canada to acknowledge this difficult history by establishing a new “Royal Proclamation of Reconciliation” in partnership with Aboriginal peoples. This new document would “build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown.” There are four commitments that the TRC argues should be included in this new Royal Proclamation of Reconciliation, and while some of them have already begun to be addressed by both courts and politicians, there is still much work to be done.

Under Call 45’s first commitment, the new Royal Proclamation should “repudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius.” In its most recent decision on Aboriginal title, Tsilhqot’in v British Columbia, the Supreme Court addressed this concern directly by stating the “doctrine of terra nullis (that no one owned the land prior to European assertion of sovereignty) never applied in Canada” and this fact was “confirmed by the Royal Proclamation of 1763.” By officially recognizing that European settlers did not in fact “discover” an uninhabited North America, the Court took a step in the right direction toward reconciliation by acknowledging our colonial history and confirming that usage of the land occurred before European discovery.

In the same decision, the Court also paid lip service to one of the other commitments included under Call 45 – the commitment to recognize and integrate Indigenous laws and legal traditions in the Treaties, land claims, and other agreements. However, although the Court placed emphasis on considering the “Aboriginal perspective” in title claims, it stopped short of classifying Indigenous legal traditions as on par with Canadian ones. Instead, in Tsilhqot’in, Indigenous law and custom was relegated to a more “factual” role in the title inquiry. It was found relevant to ascertaining whether a historical group had sufficiently “possessed” and “occupied” a particular territory, but not to legally defining concepts like sovereignty.

Call 45 further states that the new Royal Proclamation should “renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future.” Although the modern treaty process has had some success, there is no indication that governments in jurisdictions covered by historic treaties have any intention of reopening them. The consequence is that some problematic provisions remain central to governing the lives of Aboriginal peoples. (See this post from law firm Olthuis, Kleer and Townshend LLP for an overview of the legally problematic aspects of the historic treaties.)

Finally, Call 45 asks the Canadian government to “adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as the framework for reconciliation.” While the Canadian government has agreed to implement the UNDRIP framework, the extent to which these provisions can and will actually be adopted remains unclear. It is worth noting that Alberta is the only province that has agreed to implement UNDRIP, and that a Canadian court has yet to rule on its legal significance. As far as Call 45 is concerned, there is still work to be done.

Conclusion

In recent cases on Aboriginal title, achieving reconciliation has emerged as one of the Court’s most meaningful priorities. However, the role of the courts in this process is limited in significant ways. As noted by the Royal Commission on Aboriginal Peoples, courts are forced to,

“…develop the law of Aboriginal and treaty rights on the basis of a particular set of facts before them in each case. They cannot design an entire legislative scheme to implement self-government. Courts must function within the parameters of existing constitutional structures; they cannot innovate or accommodate outside these structures. They are also bound by the doctrine of precedent to apply principles enunciated in earlier cases in which Aboriginal peoples had no representation and their voices were not heard. For these reasons courts can become unwitting instruments of division rather than instruments of reconciliation.”

Though they are bound by doctrines of precedent and the existing constitutional regime, it is important, moving forward, that the Court’s definition of reconciliation does not devolve into a mere idea of reconciling Aboriginal peoples with the ‘reality’ of the Canadian colonial law. Instead, reconciliation requires that the Canadian legal regime come to terms with its own history, its own fictions, and its own inconsistencies in order to ensure that questions of who owns land, how that ownership came about, and what it entails are answered justly.

 Jessica Kras is a second year Law/Master of Public Policy student at the University of Toronto. Her interests include constitutional law, Aboriginal law and policy, Canadian literature, playing lacrosse, and baking (especially pies). She previously worked as a research assistant on issues related to electoral law and voter suppression in Canada and the United States, and will be continuing her career as a legal student at the Ministry of the Attorney General this summer.