October 7, 2013, marks the 250th anniversary of the Royal Proclamation of 1763. As Canada’s oldest constitutional document, the Royal Proclamation of 1763 provides a historical foundation for modern Crown-Aboriginal relations. When considering the questions of why resource development proponents engage Aboriginal communities, the Royal Proclamation of 1763 provides important historical context.
The Royal Proclamation of 1763 was an official decree issued by King George III to define the administrative structure of British North America. It is not only one of Canada’s founding constitutional documents, it is the basis for the ongoing relationship between Aboriginal people and the Crown.
King George III of England issued the Royal Proclamation of 1763 at the culmination of the Seven Years’ War which saw France cede the majority of its land in North America, leaving the British as the sole colonial power there. With the continent free from competing powers, colonial settlement and expansion became the primary objectives of the British government. Now ruling over vast land masses, King George III needed to assert jurisdiction and define the new administrative and political structure in Britain’s colonies.
Developing good relationships with Aboriginal inhabitants of the land was strategically valuable for the British colonial project. The French had many allies fighting alongside them in the 18th Century and the British wanted to ensure good relationships with these groups to facilitate the settlement project. In order to ensure peaceful relationships with the Aboriginal groups, the British afforded them many rights and protections.
The Royal Proclamation of 1763 declares that Aboriginal people living in what is now Canada had title to the land. This title did not confer the fee-simple property terms that dominated English common law, but a communal sense of ownership wherein the land belonged to the Aboriginal groups as a collective. All unsettled land was to be considered Aboriginal land until it was ceded by the collective in the form of a treaty. The Proclamation states that Aboriginal groups could only surrender this title to the land to the Crown, not to private citizens.
The Royal Proclamation of 1763 is still very relevant today due to the foundation it created for modern Aboriginal-government relations. King George III issued the document to assert jurisdiction over colonial expansion into western North America, and in doing so, issued the first public recognition of Aboriginal rights and title to lands. When Canada repatriated the constitution in 1982, it formally enshrined these Aboriginal rights and title, offering them constitutional protection and recognition in Section 35 of the act.
The document also contains the origins of the Crown’s fiduciary duty to Aboriginal people and is often referred to as the Magna Carta of Indian Rights. This fiduciary duty established a sui generis trust-like relationship, wherein the Crown holds protective rights and powers that must be exercised for the benefit of Aboriginal people. Additionally, it spurred the historic treaty process that saw the majority of the Canadian landmass opened up to settlement.
In 1763, British Columbia was not claimed land by the British Crown. The Royal Proclamation of 1763 applied to land claimed in the name of the King, including Rupert’s Land which covered the vast majority of the Canadian interior. Because of this, there is some debate in the legal community over whether or not the Proclamation applies in British Columbia.
Click here for the full text of the Royal Proclamation of 1763.
– Jessica Davies, Intermediate Advisor, Aboriginal and Stakeholder Engagement, Communica Vancouver