Leanne Simpson. The other half of the Elsipogtog story.

((Leanne’s fourth book, The Gift is in the Making, a collection of Nishnaabeg stories is now available from the Debwe Series, Highwater Press. Her first book of short stories, Islands of Decolonial Love is forthcoming fall 2013 from ARP Books and is accompanied by a full length spoken word album.))

In the mid-1990s I moved to Mi’gma’gi to go to graduate school. I was expecting to learn about juvenile Atlantic salmon on the Miramichi River. I was naive and misguided. Fortunately for me, the Mi’kmaq people saw that in me and they taught me something far more profound. I did my first sweat in the homeland of Elsipogtog, in the district of Siknikt. I did solidarity work with the women of Elsipogtog, then known as Big Cove, as they struggled against imposed poverty and poor housing. One of them taught me my first song, the Mi’kmaq honour song, and I attended her Native Studies class with her as she sang it to a room full of shocked students.

I also found a much needed refuge with a Mi’kmaq family on a nearby reserve. What I learned from all of these kind people who saw me as an Nishnaabeg in a town where no one else did, was that the place I needed to be wasn’t Mi’gma’gi, but in my own Mississauga Nishnaabeg homeland. For that I am grateful.

Nearly every year I travel east to Mi’gma’gi for one reason or another. In 2010, my children and I travelled to Listuguj in the Gespe’gewa’gi district of Mi’gma’gi to witness the PhD dissertation defense of Fred Metallic. I was on Fred’s dissertation committee, and Fred had written and was about to defend his entire dissertation in Mi’gmaw (Mi’kmaq) without translation — a ground breaking achievement. Fred had also kindly invited us to his community for the defence. When some of the university professors indicated that this might be difficult given that the university was 1300 km away from the community, Fred simply insisted there was no other way.

He insisted because his dissertation was about building a different kind of relationship between his nation and Canada, between his community and the university. He wasn’t going to just talk about decolonizing the relationship, he was determined to embody it and he was determined that the university would as well. This was a Mi’kmaw dissertation on the grounds of Mi’kmaw intellectual traditions, ethics and politics.

The defense was unlike anything I have ever witnessed within the academy. The community hall was packed with representatives from band councils, the Sante Mawiomi, and probably close to 300 relatives, friends, children and supporters from other communities. The entire defense was in Mi’gmaw lead by community Elders, leaders and Knowledge Holders — the real intellectuals in this case.

There was ceremony. There was song and prayer. At the end, there was a huge feast and give away. It went on for the full day and into the night. It was one of the most moving events I have ever witnessed, and it changed me. It challenged me to be less cynical about academics and institutions because the strength and persistence of this one Mi’gmaw man and the support of his community, changed things. I honestly never thought he’d get his degree, because I knew he’d walk away rather than compromise. He had my unconditional support either way. Fred is one of the most brilliant thinkers I’ve ever met, and he was uncompromising in his insistence that the university meet him half way. I never thought an institution would.

rexton---the women march1394352_10151916870188959_1762282314_

All of these stories came flooding back to me this week as I watched the RCMP attack the non-violent anti-fracking protestors at Elsipogtog with rubber bullets, an armoured vehicle, tear gas, fists, police dogs and pepper spray. The kind of stories I learned in Mi’gmagi will never make it into the mainstream media, and most Canadians will never hear them. Instead, Canadians will hear recycled propaganda as the mainstream media blindly goes about repeating the press releases sent to them by the RCMP designed to portray Mi’kmaw protestors as violent and unruly, in order to justify their own colonial violence. The only images most Canadians will see is of the three hunting rifles, a basket full of bullets and the burning police cars, and most will be happy to draw their own conclusions based on the news – that the Mi’kmaq are angry and violent, that they have no land rights, and that they deserved to be beaten, arrested, criminalized, jailed, shamed and erased.

The story here, the real story, is virtually the same story in every Indigenous nation: Over the past several centuries we have been violently dispossessed of most of our land to make room for settlement and resource development. The very active system of settler colonialism maintains that dispossession and erases us from the consciousness of settler Canadians except in ways that is deemed acceptable and non-threatening to the state. We start out dissenting and registering our dissent through state-sanctioned mechanisms like environmental impact assessments. Our dissent is ignored. Some of us explore Canadian legal strategies, even though the courts are stacked against us. Slowly but surely we get backed into a corner where the only thing left to do is to put our bodies on the land. The response is always the same — intimidation, force, violence, media smear campaigns, criminalization, silence, talk, negotiation, “new relationships,” promises, placated resistance and then more broken promises. Then the cycle repeats itself.

This is why it is absolutely critical that our conversations about reconciliation include the land. We simply cannot build a new relationship with Canada until we can talk openly about sharing the land in a way that ensures the continuation of Indigenous cultures and lifeways for the coming generations. The dispossession of Indigenous peoples from our homelands is the root cause of every problem we face whether it is missing or murdered Indigenous women, fracking, pipelines, deforestation, mining, environmental contamination or social issues as a result of imposed poverty.

So we are faced with a choice. We can continue to show the photos of the three hunting rifles and the burnt out cop cars on every mainstream media outlet ad nauseam and paint the Mi’kmaq with every racist stereotype we know, or we can dig deeper. We can seek out the image of strong, calm Mi’kmaq women and children armed with drums and feathers and ask ourselves what would motivate mothers, grandmothers, aunties, sisters and daughters to stand up and say enough is enough. We can learn about the 400 years these people and their ancestors have spent resisting dispossession and erasure. We can learn about how they began their reconciliation process in the mid-1700s when they forged Peace and Friendship treaties. We can learn about why they chose to put their bodies on the land to protect their lands and waters against fracking because setting the willfully ignorant and racists aside, sane, intelligent people should be standing with them.

Our bodies should be on the land so that our grandchildren have something left to stand upon.

source

Her Blog:  http://leannesimpson.ca/about/

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New Brunswick & Treaty Rights

NEW BRUNSWICK FIRST NATION CONSULTATION POLICY 

 A Framework for Relations

With Governments and Industry

 September 2003  

OVERVIEW

 This document states the policy of the Union of New Brunswick Indians and First Nations regarding consultation by governments and industry with their member Nations. Each First Nation will determine their own policy, this document is a global template for their use and changes can be made.

This policy is based on fiduciary principles and constitutional requirements as interpreted by Canadian courts.  It sets out the approach to First Nations consultation that we will insist upon in all dealings with the Governments of Canada and New Brunswick and with private parties seeking to operate in the First Nations’ traditional or Treaty territory.

Part I of this paper describes the background and present status of the First Nations consultation in New Brunswick as well as the key constitutional principles.  Part II sets out the Consultation Framework itself.

PART I 

  1. BACKGROUND

The English in New England started into a treaty process with the Aboriginal people they came in contact with and starting in the late 1600’s and well into the 1700’s a series of peace and friendship treaties were signed with the Aboriginal peoples of northeastern north America including the Atlantic region of eastern Canada.  The most important series of treaties covering the Maritimes were signed in 1725, (Boston, Dummer’s Treaty) 1726, (Annapolis) 1749, (Nova Scotia) 1752 (Nova Scotia)  and 1760-1761 (Nova Scotia) culminating in the Royal Proclamation of 1763 which recognized the Aboriginal peoples rights to their land unless they surrendered it to the Crown.

From the outset, the Crown often chose to ignore its Treaty obligations.  It regularly acted in breach of both the oral promises and the written terms of the Treaties.  For many years, First Nations had no legal recourse for broken Treaty promises or other breaches of their rights, apart from appealing to the honour of the Crown.

That changed in 1982 when the Governments of Canada and the provinces, including New Brunswick, agreed to entrench Treaty and Aboriginal rights in the Constitution.  Section 35 (1) of the Constitution Act, 1982 now gives First Nations’ rights constitutional protection from Crown infringement.  This means that the Governments of Canada and New Brunswick are constitutionally bound to respect the Treaty and Aboriginal rights of the First Nations, and can be held legally accountable when they do not.

  1. PRESENT STATUS

Despite this new constitutional reality, both Canada and New Brunswick have failed to recognize and implement their obligations under s.35 (1).

  1. KEY CONSTITUTIONAL PRINCIPLES

This policy is based on twelve key constitutional principles.  These principles will form the starting point of any discussions with government or industry:

Rights and Obligations

  1. New Brunswick First Nations have and assert Treaty and unextinguished Aboriginal rights.  These rights are protected by s. 35(1) of the Constitution Act, 1982.  The governments of Canada and New Brunswick are constitu-tionally bound to respect these rights, and are subject to legal recourse when they fail to do so.
  1. Both the federal and provincial Crown stands in a fiduciary relationship to New Brunswick First Nations.  Private third parties also owe fiduciary obligations to the First Nations when they are under Crown authority in ways that might affect the rights and interests of the First Nations i.e. Maritime and Northeast Pipeline Company, Pulp and Paper companies, etc.
  1. Actions of the Crown, as well as actions of third parties authorized by the Crown, that are inconsistent with the First Nations’ rights are invalid unless they can be justified according to fiduciary principles and the test laid down by the Supreme Court of Canada in R. v. Sparrow.
  1. Neither the Natural Resources Transfer Agreement, 1930, nor the federal/ provincial agreement of 1958 and the assertion of “provincial ownership” and control of natural resources in New Brunswick affect the constitutional obligations of the governments of Canada and New Brunswick to New Brunswick First Nations.
Infringement and the Sparrow Framework

 

  1. Actions taken by the Crown that directly of indirectly limit First Nations’ rights are presumed to infringe s. 35(1) of the Constitution Act, 1982 and must be justified according to the R. v. Sparrow test.
  1. The burden of justification is high and lies solely on the Crown.  The Crown must show that the infringement of First Nations’ rights:

(1)    serves a compelling and substantial objective; and

(2)    is consistent with the Crown’s fiduciary obligation.

  1. Justification under the Sparrow test requires the following:

-adequate consultation in good faith, to identify and address First Nations’ interests and concerns;

-adequate priority to First Nations rights versus those of other stakeholders;

-minimal impact on First Nations’ rights;

-mitigation measures to avoid impacts and to ensure that any impact that does occur is “as little as possible”;

-fair compensation for unavoidable infringements; and

-other efforts to ensure sensitivity and respect for First Nations’ rights.

Nature of the Consultation Process

 

  1. These requirements can only be met through a First Nations-specific consultation process.  New Brunswick First Nations are legally entitled to, and will insist upon, a distinct process directed to their own issues, interests, and concerns, and separate from any existing public processes.
  1. These requirements are triggered without the First Nations first having to go to court to prove their rights.  Governments are under a positive duty to be alert to possible infringements of Treaty and Aboriginal rights that might result from the exercise of Crown authority, and to be pro-active in avoiding or limiting any impacts.
  1. Although the Sparrow requirements are pre-requisites for the validity of Crown action, they do not end at the decision-making stage.  They are on-going and continuing for as long as Crown authority is being exercised.
  1. Where a third party is acting under Crown authority, the duties are owed both by the third party carrying out the activity, and by the Crown in its on-going supervisory role.
  1. The obligations of the Crown and the third party run parallel.  However, this does not reduce or replace the Crown’s own constitutional and fiduciary duties to First Nations.  The Crown’s duties cannot be delegated.

PART II

CONSULTATION FRAMEWORK 

This Consultation Framework sets out the process, which will guide us when interacting with Governments and industry. The validity of any action having an impact on the First Nations is conditional on the on-going fulfilment by Canada and New Brunswick and third parties of their constitutional and fiduciary obligations to consult with our First Nations in accordance with this Framework.

  1. PURPOSE

New Brunswick First Nations understand that federal and provincial decision-making and economic development in New Brunswick will affect them in both positive and negative ways.  We do not seek immunity, but to be full participants in decisions that affect us.  We seek to ensure that our rights and interests are respected, so as to minimize harmful effects and maximize beneficial ones.  In this regard:

-Our First Nations are deeply concerned about the social, environmental, ecological and cultural impacts these activities have on Crown decision-making and Crown-authorized activity on their lands and peoples.  They are concerned about the direct and indirect restrictions that will result to the exercise of their Treaty and Aboriginal rights, and on the impact this will have on their traditional way of life.

-Our First Nations are not opposed to economic development or other forms of change, but seek to share in its benefits.  They need to ensure that development of resources and other assets takes place in a manner that is sensitive to their rights, traditions, values and culture.  Our First Nations must be involved in the control and management of development that affects them, and they demand a share of the social and economic benefits that follow.

The Consultation Framework is the means to give effect to these goals.  It will guide and structure the relationship of our First Nations with governments and industry in all future dealings.

  1. APPLICATION

This Framework applies to all Crown decision-making and action by the governments of both Canada and New Brunswick that has the potential to affect the rights and interests of all our First Nations in New Brunswick.  This includes all Crown activity relating to the granting, renewal or transfer of tenures, rights, interests, leases, licences or permits by the Crown.  It also includes all other activities of government, whether legislative, regulatory or administrative in nature.

This Framework also applies to the actions of third parties, such as members of private industry, operating under Crown authority.  These third parties also owe fiduciary obligations to the First Nations in carrying out activities that affect them.

This Framework is not restricted to Crown decision-making, but applies to the on-going exercise of Crown authority.  It would thus apply not only to the Crown’s decision to grant a permit or issue a license, but to all work carried out under that permit or issue a license.

This Framework applies to impacts on our First Nations, wherever they occur within New Brunswick – whether on reserves, traditional territory or any other territory where Treaty and Aboriginal rights are exercised.

3.         NATURE OF THE DUTY TO CONSULT

In the Delgamuukw case, the Supreme Court of Canada made it clear that

-there is always a duty to consult;

-the nature and scope of the duty will vary in the circumstances;

-consultation requires a genuine attempt to address the concerns of the First Nations;

-normally, the duty will be “significantly deeper” than mere consultation;

-in some cases, it will require full First Nations consent.

The duty to consult must be carried out in good faith, based on full recognition of the rights and interests of our First Nations.   The purpose of consultation is to find an accommodation between First Nations’ interests, and those of the Crown and industry.  The accommodation of Treaty and Aboriginal rights extends to their economic, social, religious and cultural interests.

This first goal of consultation is to avoid any negative impacts on our First Nations and their members.  Where some impact is unavoidable, the goal is then to ensure that it is minimized and that the First Nations are properly compensated.

The duty to consult requires

-the affected First Nations is/are fully informed in a timely manner;

-that they be given a meaningful opportunity and capacity to express their interests and concerns; and

-that their views be given serious consideration and adopted.

-First Nations consent will be required.

The duty to consult will not be fulfilled by simply treating First Nations the same as other stakeholders.  First Nations are entitled to a distinct consultation process, addressed to their unique rights, interests and concerns.

  1. CONSULTATION GUIDELINE

The Governments of Canada and New Brunswick, as well as third party industry, must consult with New Brunswick First Nations according to the following guidelines:

  • Acknowledgment of Rights

The consultation process must begin with an express acknowledgment by the Crown and third parties that New Brunswick First Nations have constitutionally protected Aboriginal rights and Treaty rights and interests.  They must accept that protecting and honouring the First Nations’ rights is the starting point of consultation, and the overriding goal of the consultation process.

  • Provision of Information

The First Nations must be provided with all relevant information concerning a proposed decision in a timely way.  They must be fully informed, not just about the details of the proposed decision or action, but about its potential impact on them – what it will mean for the First Nations’ land, peoples, rights, title and existing relationships and activities.

The Crown and third parties have a positive duty to gather and assemble the necessary information and provide it to the First Nations.  This will often require commissioning independent studies and/or providing the First Nations with the resources and capacity to undertake the necessary analysis (see “Capacity-building”).  This must be done at the earliest possible stage.

The information must extend beyond the specific decision or proposal to examine broader, cumulative impacts.  Impacts cannot be considered in isolation, but only in the context of pre-existing impacts already experienced by the First Nations.

The provision of information is only the critical first step in the consultation process.  On its own, it cannot satisfy even the most minimal consultation requirement.  First Nations must also have an opportunity to respond, be heard, and have their consent (see “Two-way Process”).

  • Capacity-building

For consultation to be meaningful, the First Nations must be provided with the time and resources to enable them to participate effectively.  This requires funding for the hiring of the necessary in-house personnel and outside expertise.  The First Nations require sufficient resources to enable them to process and respond to applications, to conduct their own analysis, and to engage in meaningful discussions with the Crown and/or third parties.

  • Two-way Process

Consultation with the First Nations must be a two-way process.  This involves much more than the mere provision of information or the communication of decisions after-the fact.  The First Nations must be given an opportunity to express their interests and concerns and have them addressed in a meaningful way.

Problems or concerns identified by the First Nations must be specifically responded to.  Suggestions offered by the First Nations cannot be ignored; they must either be adopted, or valid reasons for rejection provided.

  • Avoiding Impacts

The first goal of consultation must be to avoid impacts on the First Nations’ rights and interests altogether.  The onus is on the Crown (and third parties, if any) to ensure that all reasonable alternatives that do not negatively impact on Treaty and Aboriginal rights has been considered.

  • Minimizing Unavoidable Impacts

If some degree of impact is unavoidable, the goal of consultation is to ensure that every possible effort is made to minimize the impact on the First Nations.  Again, the onus is on the Crown and third parties to examine all reasonable alternatives and to adopt the approach that impacts on the First Nations as little as possible.  By definition, the First Nations must be directly involved in this process.

  • Priority

Minimizing impacts requires that the First Nations’ interests be given first priority in relation to the Crown’s objectives and the interests of third parties.  First Nations priority is required by fiduciary principles.  The fiduciary relationship requires that the Crown not allow the interests of a third party, or its own interests, to trump its overriding obligations to the First Nations.

  • Fair Compensation

Even where impacts are minimized to the greatest extent possible, First Nations must be provided with compensation for impacts that remain.  Consultation is necessary to determine the level and form of compensation.

  • First Nations Involvement and Benefit-Sharing

Part of the process of ensuring adequate priority, minimal impact and fair compensation is to ensure that the First Nations are actively involved in decision-making, in the on-going control and management of projects including natural resource projects, and that they share in economic and other benefits.  This includes ensuring employment opportunities for First Nations members, as well as revenue sharing for the First Nations involved.  The First Nations must also remain active in any monitoring of the project, to ensure that the requirements of consultation, priority, minimal impacts and fair compensation are met on an on-going basis.

  • Mitigation, Accommodation and Compensation (MAC) Plan

The above efforts to minimize impacts and ensure fair compensation must be set out in a detailed Mitigation, Accommodation and Compensation (MAC) Plan.  The MAC Plan must lay out specific commitments in the way of mitigation, accommodation and compensation measures (such as, for example, steps to reduce impacts on wildlife movement and habitat, and commitments to environmental restoration, employment and job-training).

The MAC Plan is binding on both the Crown and third parties.  The Crown, as fiduciary, has the duty to supervise and enforce compliance with its terms.

  • Timing and Consequences

Consultation for the purpose of avoiding and minimizing impacts and accommodating the rights and interests of First Nations must be completed prior to the decision being made, the action carried out or the authorized activity-taking place.  Otherwise, the decision can be invalidated.

The duty does not end there.  Mitigation and accommodation measures must continue for the duration of the authorized activity; otherwise, both the decision and any action taken pursuant to it are subject to invalidation, and both the Crown and third parties are potentially liable for damages.  This could include an accounting of profits.

  1. 5.      REQUIREMENTS FOR INDUSTRY

Based on the above guidelines, New Brunswick First Nations will insist on the following terms in their relations with industry:

-A clear written acknowledgment by the company of the Treaty and unextinguished  Aboriginal rights of New Brunswick First Nations.

-Detailed information not only on the specific project proposed, but also on the company’s short, medium- and long-range plans in the area.  All proposals must be analyzed in relation to existing development, both by the company concerned and others.

-All company documentation must expressly identify the rights and interests of our First Nations.  This includes all information provided to shareholders, purchasers, lenders, governments and members of the public.  This will put all interested persons on notice that the company’s interests are encumbered by the rights and interests of the First Nations.  Failure to do so will render the company liable as a constructive trustee.

-Specific commitments to ensure that the affected First Nations are compensated for impacts and losses from the project, and that they share fully in its benefits.  This will normally be done through the MAC Plan.  These commitments will address matters such as revenue sharing, employment opportunities, capacity funding, hunting, fishing and trappers’ compensation and environmental restoration (to name only a few).

-A written commitment not to proceed with a project until the consultation process and necessary accommodations are complete.  This includes the design and implementation of the MAC Plan.

-The company must also acknowledge that its obligations continue for the duration of the project, and must agree to cease all activity if disputes arise as to compliance with the plan.

  1. 6.      THREE PHASES OF CONSULTATION

New Brunswick First Nations see the elements of consultation a breaking down into three phases:

  1. Pre-consultation
  2. Public Regulatory Processes
  3. First Nations-Specific Processes

Phase I:  Pre-Consultation

 

This is the information stage, where the Crown and third parties gather and assemble all relevant information and provide it to the First Nations.  This includes project-specific information, as well as information regarding impacts on First Nations, including cumulative impacts.  As well as being provided with objective and comprehensive information, First Nations must be given the time and resources to enable them to properly analyze and process this information at a timeline determined by them and not because some regulatory body has come up with an arbitrary time line or deadlines.

Phase II:  Public Regulatory Processes

 

In many cases, a given project or decision will be subject to public regulatory processes (such as National Energy Board or New Brunswick Public Utilities Board hearings).  These processes do not represent First Nations consultation, since they are not directed to First Nations’ issues, interests and concerns.  They cannot substitute for a First Nations-specific consultation process.

The First Nations are entitled to take part in these processes, just like other stakeholders and interested parties.  However, whether they do so is entirely up to them, and this decision is strictly “without prejudice”: a decision by our First Nations to participate in an existing public process cannot be seen as adequate First Nations consultation, nor can a refusal to take part be seen as an attempt to frustrate the consultation process.

Phase III:  First Nations-Specific Processes

 

First Nations-specific consultation involves both direct, two-way consultation between First Nations and the Crown; and three-way consultation with First Nations, the Crown and industry.  This phase of consultation always involves, a positive duty to accommodate the First Nations’ unique rights, interests and concerns.  The outcome must meet all the Sparrow, Delgamuuk justification factors, including priority, mitigation and compensation.

Where impacts cannot be avoided entirely, the Crown and First Nations must agree on the necessary mitigation, accommodation and compensation measures.  Any third parties will then be brought in to work out the details of implementing these measures through a Mitigation, Accommodation and Compensation (MAC) Plan.

The requirements of Phase III consultation are on going.  First Nations-specific consultation must continue for the duration of the project or activity, as a condition of its on-going validity.  Both the Crown and third parties are bound by their parallel fiduciary obligations to ensure that the Sparrow and Delgamuuk requirements continue to be met.

CONCLUSION

 These are the “rules of engagement” that New Brunswick First Nations will apply in all future dealings with the Governments of Canada and New Brunswick and with industry.

The First Nations have developed this policy as an attempt to provide certainty in the face of the continuing refusal of the federal and provincial Crown to present any coherent strategy for First Nations consultation.  This failure is in clear breach of the Crown’s fiduciary and constitutional obligations.

 

Royal Proclamation 1763

Royal Proclamation, 1763

 

What is the Royal Proclamation?

The Royal Proclamation is a document that set out guidelines for European settlement of Aboriginal territories in what is now North America. The Royal Proclamation was initially issued by King George III in 1763 to officially claim British territory in North America after Britain won the Seven Years War. In the Royal Proclamation, ownership over North America is issued to King George. However, the Royal Proclamation explicitly states that Aboriginal title has existed and continues to exist, and that all land would be considered Aboriginal land until ceded by treaty. The Proclamation forbade settlers from claiming land from the Aboriginal occupants, unless it has been first bought by the Crown and then sold to the settlers. The Royal Proclamation further sets out that only the Crown can buy land from First Nations.

Most Indigenous and legal scholars recognize the Royal Proclamation as an important first step toward the recognition of existing Aboriginal rights and title, including the right to self-determination. In this regard, the Royal Proclamation is sometimes called “the Indian Magna Carta.” The Royal Proclamation set a foundation for the process of establishing treaties. For example, treaty-making typically involved presence of both parties — the First Nation and the government, for there to be some form of consent between the two, and for the First Nation to be compensated for any lands or resources taken. However, the Royal Proclamation was designed and written by British colonists without Aboriginal input, and clearly establishes a monopoly over Aboriginal lands by the British Crown.

Is the Royal Proclamation still valid?

Some argue that the Royal Proclamation is still valid in Canada, since no law has overruled it.1 The Royal Proclamation is enshrined in Section 25 of the Constitution Act; this section of the Charter of Rights and Freedoms guarantees that nothing can terminate or diminish the Aboriginal rights outlined in the Proclamation. The Royal Proclamation also applied to the United States; however, American independence from Great Britain after the Revolutionary War rendered it no longer applicable. The United States, however, eventually created its own similar law in the Indian Intercourse Acts.

Despite arguments that the Proclamation is still valid, Aboriginal peoples continually have had to prove their existing title to the land through legal disputes. In British Columbia in particular, this issue has been of prime concern amongst Aboriginal groups. The vast majority of the province has never been ceded by its Aboriginal peoples, resulting in the argument that non-Aboriginal settlement in B.C. is on stolen land. The Province of British Columbia has maintained that the Royal Proclamation does not apply to B.C. since it had not yet been settled by the British when the Proclamation was issued in 1763.2 This perspective is greatly disputed amongst government officials, academics, and the public, some who claim that the Proclamation would have applied to B.C. when British sovereignty was established in the province.

What does the Royal Proclamation say?

The following is an excerpt from the Royal Proclamation of 1763 that deals specifically with Aboriginal peoples:

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, 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, or any of them, as their Hunting Grounds — We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida. or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments. as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.
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.
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.
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.
And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests. and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that 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: and in case they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose: And we do, by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of our Colonies respectively where such Person shall reside, and also give Security to observe such Regulations as We shall at any Time think fit, by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade:
And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid.
And we do further expressly conjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever, who standing charged with Treason, Misprisions of Treason, Murders, or other Felonies or Misdemeanors, shall fly from Justice and take Refuge in the said Territory, and to send them under a proper guard to the Colony where the Crime was committed, of which they stand accused, in order to take their Trial for the same.
Given at our Court at St. James’s the 7th Day of October 1763, in the Third Year of our Reign.
GOD SAVE THE KING