Caleb Holden

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.

In December 2015, the Truth and Reconciliation Commission of Canada (TRC) released its final report documenting both the history and ongoing legacy of Canada’s Indian residential schools policy. The report describes the removal of over 150,000 Indigenous children from their homes and communities for vocational and educational training in government and church-run institutions.

Residential schools were used as an instrument to deny Indigenous children access to their languages, families, and community institutions, created opportunities for widespread physical, sexual, and psychological abuse, and attempted to forcibly assimilate seven generations of children into the colonial body politic. They represent a central element of what the TRC report describes as a broader policy of cultural genocide committed against Indigenous peoples in Canada.

The detail of the TRC’s report, which runs over 3000 pages spanning across six volumes, is an indication both of the policy’s vast historical complexities and the pervasive impact of residential schools on Indigenous peoples within Canada today. Given its size, many commentators have chosen to focus on the TRC’s executive summary and 94 calls to action, which create a framework for actors in every aspect of Canadian life to begin working to redress the legacies of these wrongs and to grapple with the amorphous notion of reconciliation between and within our communities.

The inspiration for this year’s Walter Gordon Symposium is derived from the 45^th Call to Action, the preamble of which states:

“We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation 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.”

The Symposium aims to discuss what this new Royal Proclamation would look like in practice, a question that is sure to touch on the intersections between Canadian, Indigenous, and international legal orders. Equally important, however, will be the influence of competing historical narratives, which shape our understanding of the Royal Proclamation of 1763. Careful study of the Proclamation in light of its original interpretation by those who assented to it at the Treaty of Niagara provides insight about the historical relationship between Indigenous and non-Indigenous peoples, which proponents of a new Royal Proclamation would do well to consider.

The Royal Proclamation of 1763 was issued by King George III following the Treaty of Paris, which recognized the British victory over France in the Seven Years’ War. While such proclamations were common at the time as a means of declaring war or drawing attention to other significant events within the monarch’s realm, this particular decree outlined the foundation of British colonial governance in North America. Boundaries were established for the newly acquired colonies of Quebec, East and West Florida, and Grenada, and land grants were provided to veterans of the war. It is the final seven paragraphs of the document, however, that have entrenched it within our legal history.

This final section of the Royal Proclamation marks one of the first explicit acknowledgements of Indigenous peoples by the British Crown, earning it the title of the Indigenous “magna carta” in some modern historical and journalistic circles. It stated “that the several Nations or Tribes of Indians… 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.” Further, King George recognized that “great Frauds and Abuses ha[d] been committed in purchasing Lands of the Indians,” as postwar settlement of the Ohio Valley and Lower Great Lakes region led to increasingly violent interactions between settlers and Indigenous communities.

To address this, the document created the Proclamation line along the Appalachian Mountains, which denoted the beginning of “Indian Territory” that continued westward to Rupert’s Land, the area granted to the Hudson’s Bay Company by King Charles II in 1670. The Crown reserved these lands under its dominion and sovereign power, but forbade any survey and settlement within the territory without its express consent. Further, the Crown was to negotiate any sale of these lands directly with the Indigenous nation in question, removing the possibility of third-party incursion.

For colonial officials the result was twofold: control over settlement disputes meant a more stable environment that was intended to protect Indigenous nations, and the statement on land sales gave a new air of legitimacy to treaty-making in the region. The ensuing decades saw Indigenous nations surrender portions of the “Indian Territory” bordering the Great Lakes to the Crown through bilateral agreements, known today as the early Upper Canada Treaties.

In the 19^th Century, the incremental transfer of power over the Indian Department from Great Britain to British North America led to selective enforcement of the guidelines set out in the Royal Proclamation. Colonial administrators, who often prioritized expediency over adherence to the royal decree, began to deviate from the Proclamation’s original intent and employ coercive tactics.

These calls for expediency were hastened post-Confederation, as the government of Sir John A. Macdonald employed a Proclamation-inspired form of treaty-making to begin settling the Numbered Treaties. The treaties spanned from Northern Ontario, across the Prairies and portions of the North, to the Eastern edge of present-day British Columbia. Coercion also intensified during these negotiations: between 1871-1921, the period during which the eleven Numbered Treaties were signed, the Government of Canada oversaw the creation of the Indian Act, the rise of residential schools, the targeted use of food shortages, and the reduction and isolation of newly established reserves.

Despite the reduced dependence on the Royal Proclamation in settling these treaties, its principles returned to prominence in the 1970-80s as the modern treaty era took shape. In Calder v BC, the 1973 case considering the existence of Aboriginal title prior to settler arrival in British Columbia, Justice Emmett Hall recognized the Royal Proclamation as a “foundational document” for Indigenous rights in Canada. Due in part to this renewed interest and the work of Indigenous political organizations across the country, the Proclamation was mentioned explicitly as a source of Aboriginal rights within Section 25 of the Constitution Act in 1982. It continues to be cited across Canada in jurisprudence and scholarship surrounding contemporary Aboriginal law.

To conclude discussions of the importance of The Royal Proclamation of 1763 here, however, would be to present only half of its complex history. As legal scholar John Borrows has discussed at length, the original text of the Proclamation and its subsequent use by colonial officials say little about its interpretation by the Indigenous peoples whose rights it was presumed to protect.

For that perspective, Borrows has turned to the Treaty of Niagara of 1764. With the decrease in importance of the military alliance between the British, the Haudenosaunee Confederacy, and other allies at the conclusion of the Seven Years’ War, Indigenous nations reiterated to the Crown that they had not ceded their territories, nor any other aspect of their sovereignty during the conflict. Several accounts exist, both in the oral and written histories of these communities and in the surviving papers of then-Superintendent General of Indian Affairs, Sir William Johnson, which express the clear intention of these Indigenous nations to maintain rights to their lands and communities, backed by the threat of force against the colony should they be refused.

In the period immediately preceding the Royal Proclamation, the Odawa leader, Pontiac, led a force of 3500 in a military campaign to challenge British postwar policy in the Great Lakes region. Pontiac’s War, coupled with the aforementioned reasoning behind the Royal Proclamation, spurred Sir William Johnson to organize treaty negotiations at Fort Niagara in July and August of 1764. There, Johnson met with over 2000 chiefs representing twenty-four Haudenosaunee and Anishinaabe nations and provided them with the written text of the Royal Proclamation. In return, he was given a two-row wampum — a large white and purple belt constructed from shell beads — used as an expression of diplomatic agreement between nations. This exchange represented what was known as a Covenant Chain, a multi-national treaty of peace and friendship in which each party retained their sovereign powers.

As Borrows points out, the belt demonstrated a

“First Nation/Crown relationship that is founded on peace, friendship, and respect, where each nation will not interfere with the internal affairs of the other. An interpretation of the Proclamation using the Treaty of Niagara discredits the claims of the Crown to exercise sovereignty over First Nations.”

The idea that the Chiefs present at Niagara understood the treaty as an expression of friendship and not as a surrender of their sovereignty has been supported by subsequent legal histories of the period, which point to Indigenous negotiators using the Royal Proclamation and Treaty of Niagara as inseparable elements of a single, broader treaty more than one century after the original negotiation.  Unfortunately, while recognition of the historical importance of the Treaty of Niagara has increased, it has yet to impact the stance within the Canadian legal system that all underlying title rests with the Crown.

It is of particular significance, then, that the TRC’s 45^th Call to Action aims to “reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown” by referencing both constituent elements of this agreement. If a new Royal Proclamation of Reconciliation is to have a lasting impact, the TRC recognizes that it must reflect on the lessons of the Treaty of Niagara and ensure that all relevant parties are able to give input in a way that prioritizes their voices and understandings of reconciliation in some binding manner. In practice, this will mean equitable consultation not only with the Assembly of First Nations and other national organizations, but with Indigenous communities across the country, including those that remain skeptical toward reconciliation as an externally imposed framework. By definition, this process will be challenging, but to do otherwise would be to once again privilege expediency and the economic interest of the Canadian state over any meaningful act toward a nation-to-nation relationship.

Caleb Holden is a first year Junior Fellow at Massey College. He recently graduated from McGill University where he was the co-Editor-in-Chief of the McGill Students’ Indigenous Studies Journal. His research interests include Canadian energy policy, the place of cities and Indigenous governments in contemporary federalism, and the changing role of the media in Canadian society. Originally from Winnipeg, he’s on a quest to make the Prairies relevant to everyone he encounters during his stay in The Centre of the Universe.