The Royal Proclamation and the Documents of the Period

The Royal Proclamation of 1763 was actually the country’s first constitution. A constitution is a set of basic texts that determine a country’s form of government, and hence the Proclamation contains the historical foundations or basis of Canada’s relations with the Aboriginal peoples. In the eyes of the British, these peoples were of the utmost importance, and for this reason more than a third of the Proclamation is devoted to a detailed description of relations with Aboriginal peoples.

Moreover, the highest courts in the land have often referred to the Proclamation as the “Magna Carta”, the “Great Charter” of Aboriginal rights. Many Aboriginal chiefs have also considered it as such.

Although certain provisions of this royal edict are no longer valid today (the limits of the colony of Québec as it existed in 1763, for example), the provisions concerning Aboriginal peoples have never been abolished. Hence, in legal jargon, they still have force of law in Canada. In addition, the treaties, which we will come back to later, were derived largely from instructions expressed by the King in this official document.

Given the importance of the Proclamation, it is not surprising that more recent texts make reference to it. The Canadian Charter of Rights and Freedoms, enacted in 1982, for example, speaks of the “rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763” and the “rights or freedoms that now exist by way of land claims agreements” (s. 25). In addition, the Canadian Constitution of 1982 recognizes and affirms the “existing aboriginal treaty rights of the aboriginal peoples of Canada…” (Part II of the Constitution).

In short, the documents of the time, regardless of how old they are, are still current. Recent documents have confirmed their value and importance as the constitutional basis of our relations with Aboriginal peoples. Therefore, Aboriginal peoples are not referring to them opportunistically. They are right to refresh our memories.

But what is so important about this precious 1763 document? Above all, the Proclamation acknowledges Aboriginal peoples as organized societies with which treaties must be negotiated. The key elements of the document are as follows: the acknowledgement of the status of “nations and tribes,” and thus as politically distinct groups; the acknowledgement of the Crown’s responsibility to provide “protection”; and the establishment of a treaty procedure to obtain “consent” for land settlement.

Thus, the wishes expressed by King George III would give rise to the conclusion of numerous treaties and deeds of conveyance affecting Aboriginal lands. This was precisely what would happen after the creation of the Canadian Confederation in 1867, for such a vast country could not be established without negotiations with and some form of consent from the First Nations occupying the territory. We will see a little further on that this “consent” was very relative and most often obtained through confusion and ignorance. Despite this, the construction of the railway, the massive arrival in the West of colonists from the East, and the development of certain resources necessitated the conclusion of treaties.

We should not forget that the Aboriginal peoples are not the only ones to refer to very old documents to affirm their distinctness. For Francophone Quebecers, in particular, the Quebec Act of 1774 is just as important a reference in the history of their political and legal institutions as the Royal Proclamation of 1763 is for the Aboriginal peoples. It should be noted that, despite the conquest by the British, the Quebec Act guaranteed the French-Canadian colonies their freedom of religion and permitted the re-establishment, in particular, of French civil law. In short, there is nothing bad about having a good knowledge of your history. Moreover, the first colony of Québec was created by the Royal Proclamation of 1763.