Analysis with Bill Gallagher, Lawyer / Strategist
Author of Resource Rulers: Fortune and Folly on Canada’s Road to Resources
October 07 2013 marks the 250th anniversary of the Royal Proclamation.
When it was decreed in 1763: a) England had conquered France in the Seven Years War; b) the Treaty of Paris had just concluded ceding Quebec to the victors; c) and a British military governor was already ensconced in Quebec with an occupying army.
The trouble was that the French population of New France outstripped the English population by a factor of 100:1. Moreover since that population had been grossly abused in the war’s closing chapters, the resulting peace was tentative and the political jurisdiction yet to be determined.
In fact, the British had faced a similar situation before when it tried to wrestle Acadia from the French in the lead up to the fall of Fort Beauséjour in 1755. They had entered into ‘peace and friendship’ treaties with the Indians in an attempt to curry favour and to displace the long-standing accommodation with French traders. The British hoped to win the Indians over by bolstering trade arrangements (truck-houses) or failing that to render them ‘neutral’ so as not to re-align with the French.
So now the British had the same problem but on a much larger scale (as the new Quebec included a huge swath of what today comprises eastern Ontario). Thus they sought to strike a new alliance across the entire region for three distinct groups: a) by rewarding their soldiers and veterans with settlement lands; b) then promising their Indian allies situated within in the new territories that they were ‘to be left unmolested’; c) and finally pledging to those Indians beyond (westward) the new territories, that they were henceforth secure with their lands ‘reserved to them’.
Here’s the wording addressing the land rights of Indians situated ‘within’:
… no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement: but that. if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie: (author’s underlining)
Here’s the wording addressing the land rights of natives ‘not included within’:
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. (author’s underlining)
Furthermore, the Royal Proclamation pledged that Indians - both within and beyond - would henceforth be spared the ‘frauds and abuses’ of the past. This was primarily aimed at wanton settler expansion westward - now to be controlled by the Crown:
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved. without our especial leave and Licence for that Purpose first obtained.
The reason the British king made these pledges to the Indians had much to do with consolidating the spoils of war in a time of economic restraint and demographics: a) regiments were disbanding and manpower was unavailable to militarize the frontier; b) over a century of raiding parties up and down the Richelieu-Lake Champlain-Hudson corridor had taken its toll and had to be stanched once and for all; c) thus no settler excesses or missteps that might incite Indian insurrection could be tolerated; d) and settlement was encouraged only within the new colonies:
And. We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described. or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.
The Royal Proclamation also promoted ‘free and open’ trade with the Indians, but it was to be regulated, required licenses, and misdeeds were subject to stiff penalties.
There’s an implied royal logic that permeates all of the foregoing clauses - Honour of the Crown - which no doubt is why native strategists fought for and succeeded in having the Royal Proclamation specifically cited in the Canadian Charter of Rights and Freedoms. Now 25O years later, this equitable doctrine has emerged as a central plank in the native legal winning streak and is driving the rise of native empowerment to its present day climax. But its genesis is in the Royal Proclamation.
Resource Rulers documents the strategic folly of governments and corporations that still rely on litigation to challenge and change-back the course of Indian history. But as demonstrated by 186 native legal wins in the resources sector, it’s a strategy that’s simply not working. Could it really be that the Royal Court of George III had more insight and savvy into reconciling these historic forces? It sure looks that way.
(Part 2 will review this same theme from the perspective of HBC / Rupert’s Lan)