Canadian Law and Indigenous Peoples (Sept 16)

This was beginning to talk about the Royal Proclamation, what led up to it and the BNA.

What is the Royal Proclamation 1763?

Declaration by the British Crown that protected Indigenous lands, set rules for treaty-making, and said that only the Crown (not settlers), could buy Indigenous land. It created a clear boundary line and is considered the first constitutional document of North America.

It is still legally valid today (Section 25 of the Constitution Act, 1982).

Who were key North American contributors to the Royal Proclamation?

Sir William Johnson British Military Officer (Irish), but worked for British Crown). He was allied with the Haudenosaunee, which was his wife’s community.

Molly Johnson/Dagonwadonti (Haudenosaunee).

• They wrote to England advocating for a fair system for negotiating treaties and protecting Indigenous land.

• The Haudenosaunee were also closely allied with the British.

What major war happened before the Royal Proclamation?

The Seven Years’ War (1756–1763), considered the first “world war,” ended shortly before the Proclamation.

• The Treaty of Paris (1763) formally ended the Seven Years War.

• Britain and France fought for control over land, trade, and power.

• Many Indigenous Nations were key players.

• The Haudenosaunee Confederacy, Huron-Wendat, Mi’kmaq, Anishinaabe, and others formed alliances that shaped the outcome.

• In the Great Lakes region, Sir William Johnson and the Haudenosaunee (especially Mohawk leader Joseph Brant’s family) played major diplomatic and military roles for the British.

Joseph Brant 

Brother of Dagonwadonti; a famous Mohawk leader who fought for the British and helped establish Brantford, Ontario.

• Was fluent in Mohawk, English, and several other Indigenous languages, which made him a crucial interpreter, negotiator, and diplomat between the Haudenosaunee Confederacy and the British Crown.

• He helped the British understand Haudenosaunee political systems and worked to protect Haudenosaunee lands and sovereignty.

Important Elements of the Proclamation

1. Created a boarder, and territory. Was done to stop American expansion (13 colonies from encroachment).

2. Set out the requirement of the British Crown to have a relationship with First Nations. 

   1. First Nations were only allowed to sell their land to the British Crown. 

   2. Protected First Nations land under crown (became subjects).

3. Set out the requirement of the Treaty-making process. 

Pontiac (Who and What).

A powerful Odawa (Ottawa) war chief and one of the most influential Indigenous leaders in the Great Lakes region during the mid-1700s.

An Indigenous leader who united the nations to resist British expansion and warned them not to trust British promises. The premise for his rebellion was based on the British who:

• Treated Indigenous Nations with disrespect

• Cut off traditional diplomatic gift-giving

• Restricted essential trade items (gunpowder, ammunition, supplies)

• Allowed settlers to enter Indigenous lands without consent

He was assassinated, weakening the unified Indigenous resistance against the British.

Two Major Issues with Proclamation

• Did it create First Nations Rights? Or did it only recognize First Nations rights? 

  1. If it created rights, could the crown revoke them? 

  2. If it recognized rights could the crown really take the rights away? 

• The geographic range of the Royal Proclamation. 

  1. Debatable how far the RP actually covered (did it cover BC)?

What was the purpose of the British North America Act (1867)?

To create Canada, set up a federal system, and separate power between federal and provincial governments. It also established the government system for Canada (parliament, senate, courts and legislature).

The Act joined three colonies into one Dominion called Canada:

• Province of Canada → split into Ontario and Quebec

• Nova Scotia

• New Brunswick

This officially formed the new country on July 1, 1867.

What is Section 91(24) of the BNA Act?

It gives the federal government exclusive control over “Indians and lands reserved for Indians.” It is one of the most important constitutional provisions shaping Crown–Indigenous relations in Canada.

This section forms the legal basis for:

• The Indian Act (1876–present)

• Federal responsibility for reserves

• Federal obligations in treaties

• Most Indigenous programs and services

• SCC affirmed that this meant First Nations, Metis and Inuit peoples in SCC.

Why was Indigenous policy given to the federal government in the BNA?

To avoid provincial self-interest, especially because provinces controlled resources and could profit from Indigenous land.

What is the federal fiduciary duty?

The federal government has a constitutional responsibility to protect Indigenous peoples and their lands, not exploit them.

Seven Years War Conflict 

The Seven Years’ War (1756–1763) was a huge global conflict fought between the world’s major powers, mainly Britain and France, along with their allies.

Fighting occurred over land, resources, control of trade and colonial power over specific areas. Both were supported by different Indigenous nations.

It ended with the Treaty of Paris (1763).

Two Major Issues with Proclamation

Debate 1: Did the Proclamation create or recognize Indigenous rights?

If it created rights → Crown could revoke them. Language like “His further pleasure to be known” suggests the Crown could change its mind.

If it recognized rights → Crown cannot take them away (This is a major legal debate). Indigenous title existed long before British arrival; the Proclamation simply acknowledged this.

Two Major Issues with Proclamation

Debate 2: What is the geographic range of the Proclamation?

• Some said it didn’t apply to BC

• Calder case argued BC lands were included

• Wording supports a broad application