Chapter 6

Historical background

At the end of the 15th century, in 1492, having driven the Moors from Spain, the Castilian king and queen commissioned Christopher Columbus to undertake a voyage of exploration to the west for the purpose of discovering a trade route to China and the Indies. Columbus landed on the island in the Caribbean which he named Hispaniola, and thus began the European annexation of America. Soon after, England sent John Cabot, commissioned by Henry VII, who landed in Newfoundland in 1497, and the French despatched Jacques Cartier, who made landfall at Gaspé at the mouth of the Gulf of St Lawrence in 1534. The Dutch and Portuguese also made expeditions to the new continent. These were not the first Europeans to reach these shores. They were preceded by sailors and fishermen whose journeys were not recorded and by Norse parties sailing out of Greenland in the 11th century.1

When Columbus arrived, the continent was already inhabited by a population estimated by Charles C. Mann2 at 90–112 million and by James Tully at 80–100 million – as compared to a population of the whole of Europe of 60–70 million. In both North and South America there were sizeable cities. However, these societies were decimated by the diseases which spread through indigenous populations after European contact. As a result, James Tully estimates the indigenous population of the United States and Canada to have dropped to 8–10 million in 1600 and just 500,000 in 1900.3

Tully observes that the indigenous nations were well used to making treaties between themselves for the sharing and partition of land and, when Europeans sought to move onto their lands, they treated them no differently.4 European incursions into the American continent were ostensibly as much to do with the Christian religion as with the European nation-states involved. Spanish exploration in Central and South America was sanctioned by five papal bulls in 1493, and another in 1539 when Pope Paul III decreed: ‘We trust that … you will compel and with all zeal cause the barbarian nations to come to the knowledge of God … by force and arms, if needful, in order that their souls may partake of the heavenly kingdom.’5

François I of France issued a commission to Jean de la Rocque in 1541 requiring that he should ‘inhabit the aforesaid lands and countries and build there towns and fortresses, temples and churches, in order to impart our Holy Catholic Faith and Catholic Doctrine, to constitute and establish law and peace, so that they [the Native Americans] may live by reason and civility.’6

The chosen vehicle for this conversion of the native peoples was trade, so that priests travelled aboard merchant ships bound for the New World. Even the English, Anthony Pagden tells us, based their claim to legitimacy in America on their kings’ and queens’ assumed title of Defender of the Faith. The Charter of the Virginia Company of 1609 stipulated its purpose to be to propagate the Christian religion ‘to such peoples who, as yet, live in darkness and miserable ignorance of the true knowledge and worship of God …’7 Alongside conversion, however, the English had two further aims: trade and settlement. Many of these settlers along the eastern seaboard of North America were Puritans who followed a Calvinist creed. They had no real desire to welcome the native people into their religious circles.

The European nations who now sought to colonise the New World had legal systems which all derived from Roman law. Anthony Pagden suggests that they had inherited from the Romans the concept of imperium: a duty to spread citizenship and to ‘crown peace with law, to spare the humbled, to tame the proud in war’.8

By the time of Charles II’s restoration to the throne of England, theories of the bond between the church and the monarchy had been severely tested and those Christian settlers on the American eastern seaboard were more interested in establishing settlements than in converting the ‘savages’. Having realised that there was no gold to be found in eastern North America, the colonisers turned their attention to settlement and agriculture. They justified their seizure of native land for these purposes through the application of principles developed by John Locke, who had been commissioned by Charles II to write the new constitution of the Carolinas.

It had previously been established by the Royal Commission of 1665 that the only legitimate way in which Europeans could settle on aboriginal land in America was with the consent of the aboriginal people.9 Since the aboriginal people were unwilling to give such consent, John Locke’s Two Treatises, written 15 years later, provided a solution to enable settlers to take the land without consent. Written in reply to a treatise by Sir Robert Filmer, who favoured renewed recognition in England of the divine right of kings and their sovereign power, Locke proposed that, in order to own land, the claimant had to work the land. This would create what Tully calls ‘a form of popular sovereignty’10 to accommodate the restoration of the English monarchy without its divine right.

Locke’s argument has three stages. First, he classifies indigenous peoples as the most primitive, in a state of nature. As hunters and gatherers, native people merely acquire rights in the animals they kill and the nuts and berries they gather,11 a usufruct.12 They do not work the land and therefore do not have rights in it. Europeans are in the most advanced, civilised, stage. Only they can exercise sovereignty.13 Since the indigenous people are in a state of nature, the civilised Europeans can take their land without their consent so long as it appears to Europeans to be uncultivated and unimproved – waste land: ‘As much Land as a Man Tills, Plants, Improves, Cultivates, and can use the Product of, so much is his Property. He by his labour does, as it were, inclose it from the Common.’14

The Report of the Royal Commission on Aboriginal Peoples (the ‘RCAP Report’) comments that: ‘These kinds of arguments, which distorted the reality of the situation and converted differences into inferiorities, have had surprising longevity in policy documents and in court proceedings up to the present day. As modified by the courts, they are at the heart of the modern doctrine of Aboriginal title which holds that Aboriginal peoples in North America do not “hold” their lands …’15

Since this land is vacant (terra nullius), common land, each may only take according to their need. To be owned, land must be cultivated according to European agricultural practices under which it is essential to make full productive use of the land. If it is left unproductive, it is waste and therefore eligible to be taken and cultivated. Locke draws an analogy from God as Maker16 – humans must work the land they are given. John Locke’s theories provided a form of justification for taking indigenous lands.17 He places the creation of property rights firmly in political societies who were held together by a social contract:18 ‘It was common [that] without any fixed property in the ground they made use of, till they incorporated, settled themselves together, and built Cities, and then, by consent, they came in time to set out the bounds of their distinct Territories, and agree on limits between them and their Neighbours, and by Laws within themselves, settled the Properties of those of the same Society.’19

By contrast, in 1690 Locke dismissed American Indians as ‘the wild Indian who knows no enclosure and is still a tenant in common’20 – by which he meant that the indigenous peoples shared their land and did not recognise formal individual ownership.

Locke’s thesis did not envisage the sale of the products of labour, which he saw as taking more than a family needed – the only entitlement was to take as much as was needed for personal consumption, leaving more land for the rest of mankind.21

Having been forged initially against a backdrop of the Puritan work of leaders such as John Winthrop and John Cotton in the time of Oliver Cromwell’s Commonwealth, these doctrines were enthusiastically received by a Puritan population of the new colonies who were already certain in their belief that they were a chosen people who were answering a personal calling, and that financial success, so long as it was a result of sober industry, was a sign of being one of the elect.22 Weber observes: ‘Even more striking … is the connection of a religious way of life with the most intensive business acumen among these sects whose otherworldliness is as proverbial as their wealth, especially the Quakers and the Mennonites. The part which the former played in England and North America fell to the latter in Germany.’23 Maybe this was what led them eventually, in the interest of profit, to ignore the admonition to take only what was necessary.

Weber notes Benjamin’s Franklin’s exhortations that the purpose of money is to beget money; and to frugality, punctuality and justice in all dealings.24 Franklin sees it as man’s duty to increase his capital. Weber sets this philosophy in the context of utilitarianism and concludes that: ‘Man is dominated by the making of money, by acquisition as the ultimate purpose of his life. Economic acquisition is no longer subordinated to man as the means for the satisfaction of his material needs. This reversal of what we should call the natural relationship, so irrational from a naive point of view, is evidently as definitely a leading principle of capitalism as it is foreign to all peoples not under capitalistic influence.’25

Locke’s thesis of land gained by labour resonated with Puritan ethics of ‘hard, continuous and bodily labour’.26 As Patricia Seed points out: ‘Once the Puritans arrived, Native Americans lost the right of refusal … natives did not have a right to insist upon holding on to their land or to reject Puritan rights to settle.’27

This practice she labels ‘forcible expropriation’.28 The English were the only nation to seek to justify their expropriation of indigenous land and they alone believed that farming gave them superiority over the native population.29 In contrast to the Puritans, however, Patricia Seed notes that the French were not seeking to purchase land – they asked for permission to reside, which was recognised by an exchange of gifts, not of money.30

Accompanying the Puritan sense of being a chosen people was the contrast with those who were not chosen, those who bore the signs of eternal damnation.31 As had been seen during the Commonwealth in England, the Puritans rejected everything that they condemned as being founded on ostentation, superstition or the pleasures of the flesh: ‘And even more important, the religious valuation of restless, continuous, systematic work in a worldly calling, as the highest means to asceticism, and at the same time the surest and most evident proof of rebirth and genuine faith, must have been the most powerful conceivable lever for the expansion of that attitude toward life which we call the spirit of capitalism.’32

Or, as Bill Reid, sculptor of The Spirit of Haida Gwai, put it:

Sometimes they [the European invaders] found great cities, homes of people with cultures as advanced as their own, and so beautiful they thought they had stumbled into fairyland, so they promptly destroyed them. Sometimes they found beautiful, gentle, generous people, so they made slaves of them and killed them.

Sometimes they found people who weren’t so nice, so beautiful, or gentle and generous, but were almost as avaricious as themselves. These they dealt with as allies or trading partners until they relieved them of the goods they coveted; then they destroyed them and their cultures.33

The Royal Commission on Aboriginal Peoples reminds us that virtually all of Canada was occupied and used by indigenous peoples at the time of contact with Europeans.34 The nature of the land they occupied dictated the manner of settlement, so that the Pacific coast peoples who depended on fishing lived in villages, the hunters of the north pursued a nomadic life ranging over vast areas and, where the land was fertile, the peoples pursued agriculture and horticulture. Alternatively, they may have lived by a mixture of these occupations. The nature of the individual society and its governance varied but there were social and political principles common to all. As Chief George Desjarlais told RCAP:

You must recognize that although we exercised dominion over these lands prior to the coming of the foreigners, our values and beliefs emphasized stewardship, sharing and conservation of resources, as opposed to the foreign values of ownership, exclusion and domination over nature. Proprietorship over use of resources within a traditional land base was a well-established concept that influenced our relations among ourselves as a people, and with other people who entered our lands from time to time.35

Trade was important between indigenous nations before contact with European settlers. Control of trade between indigenous groups was a sign of superior power over them and the holders of that power traded with the European incomers in the same way.36 The native people dictated the terms of trade according to their own rules, generally preceded by speeches and exchange of gifts, rather than following the practices of the European marketplace. The native traders, in particular the Iroquois and the Montagnais (Innu) then traded the goods on to other indigenous groups, despite their belief in sharing.37 French merchants seeking to trade with the Huron had to learn the Huron language because of Huron superiority of numbers and of bargaining power in the 17th century.

Nevertheless, relations between European settlers and their indigenous partners engendered little desire on the part of the incomers to accept or even understand the ways of the natives. This relationship has resonances in the work of Michel Foucault, particularly in the ideas discussed in Madness and Civilisation. Through the trope of mental illness, Foucault observes how ‘civilised’ societies deal with the ‘Other’. He describes how the leper colonies of the Middle Ages became the lunatic asylums of the 18th and 19th centuries. He notes that, in the Renaissance, madness was perceived to be a release of the wild animal in man’s nature – ‘impossible animals issuing from a demented imagination become the secret nature of man’.38 Foucault links madness to man’s weakness, dreams and illusions, and to all irregularities of conduct.39

From the 16th century onwards, these ‘madmen’ had to be confined, excluded from a civilised society.40 Foucault points out that from the middle of the 17th century, the so-called ‘Age of Reason’, the purpose of confining those who could not take their place in society was ‘the imperative of labour’.41 By 1657, the Hôpital-Général in Paris had adopted the practice of hunting down beggars and confining them within its precincts.42 In England, it was proposed that the poor, a term which included all outcasts from society who refused to work, should be banished to Newfoundland.43

Foucault asserts that: ‘The walls of confinement actually enclose the negative of that moral city of which the bourgeois conscience began to dream in the seventeenth century; a moral city for those who sought, from the start, to avoid it, a city where right reigns only by virtue of a force without appeal – a sort of sovereignty of good …’44

Those who established their ‘moral cities’ in the New World carried these perceptions of the contrast between madness and civilisation with them. They were a chosen elite and they found confirmation of this status when they encountered peoples who lived by hunting and gathering, appeared never to till the soil or do any real work, and whose practices seemed to the newcomers to release their animality – Giorgio Agamben’s ‘homo hominis lupus’.45 The settlers lived within the walls of their settlement and they kept the Other firmly without. There were plenty of pretexts for taking their land and driving the native population away.

The effect of these perceptions was compounded by the European diseases which swept through defenceless populations. Hugh Brody explains that these diseases were spread through human societies via animal husbandry, which is why they had not reached hunter-gatherer populations. Brody turns received wisdom about settlers and hunter gatherers on its head, pointing out that hunter gatherers had a settled routine to get the best use out of their lands, whereas Europeans were constantly seeking to annex new land.46 Initially, not knowing that they and their animals were the carriers of the smallpox, measles and other animal-borne diseases which ravaged indigenous peoples, Puritan settlers such as John Winthrop believed that this was the way in which God was clearing the land for their use.47 J.R. Miller suggests that the Huron lost half their population to measles between 1634 and 1640 because they were in contact with Jesuit missionaries and French traders.

Iroquois converts told the Jesuits of their perceptions of the English and French newcomers:

Go see the forts our Father [the French] has erected, and you will see that the land beneath his walls is still hunting ground, having fixed himself in those places we frequent, only to supply our wants, whilst the English, on the contrary, no sooner get possession of the country than the game is forced to leave it; the trees fall down before them, the earth becomes bare, and we find among them hardly wherewithal to shelter us when the night falls.48

Whereas the French were prepared to leave the native people to lead their lives according to their traditions, the English wanted to clear their land. Patricia Seed attributes this to the English perception that hunting was a right exercised by the nobility as part of their ownership of the land. English people of low status hunted on pain of death, whereas there was, she says, no such class distinction in France.49

Miller defines the 18th century, the height of the Age of Reason, as the era in which European claims to territory in the Americas were fought out. This, he says, engendered a new relationship with the native peoples who, as well as becoming trading partners, were needed as allies in war.50 If Europeans were dependent on the indigenous nations as allies, they had to treat them as equals, and a different relationship was necessary in regard to their land. Thus, following the European peace settlement marked by the Treaty of Paris, George III of England made his Royal Proclamation of 1763 which acknowledged indigenous ownership of indigenous land.

It fell to William Blackstone in 1765 to enshrine the rules of colonial land ownership in law. Following the doctrines of Locke, he proposed that ‘colonies of settlement’ included all settlements and plantations where ‘an uninhabited country be discovered and planted by English subjects’. This included land where there were very few inhabitants, land which had not been cultivated and land inhabited by ‘uncivilised inhabitants in a primitive state of society’.51 Although Blackstone never uses the term terra nullius, he bases his analysis on Roman law relating to unoccupied land.52 Writing of the law applicable in the new colonies, he said: ‘In conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws, but till he does actually change them the ancient laws of the country remain, unless such are against the law of God, as in the case of infidel country.’53

His analysis echoes the wording of the Royal Proclamation.

As will be seen in the ensuing chapters, and as noted by Patricia Seed,54 when ‘using long-standing expressions about Native Americans, present-day judges, lawyers and citizens, intentionally or not, often carry forward meanings created by colonizers’. It was not until the Australian case of Mabo v Queensland [No2] 55 in 1992 that the doctrine of terra nullius was successfully challenged. It has now been excluded from Canadian law by McLachlin CJ’s decision in Tsilhqot’in Nation v British Columbia.56 Moreover, the Final Report of the Indian Residential Schools Truth and Reconciliation Commission also declares the doctrine null and void.57

The Royal Proclamation in context

In 1763, the indigenous people in North America were still numerically superior to the European settlers. As we have seen, they lived in structured societies, although not on recognisably European lines. Although their leaders recognised the sovereignty of the English king over his own people, they had no intention of ceding their own sovereignty to the British Crown. Indigenous leaders like Pontiac continued to wage war against the British and the British government began to develop an enforceable Indian policy based on principles of conciliation. This was set out in a memorandum by Lord Egremont:

Tho’ … it may become necessary to erect some Forts in the Indian Country, with their Consent, yet His Majesty’s Justice & Moderation inclines Him to adopt the more eligible Method of conciliating the Minds of the Indians by the Mildness of His Government, by protecting their Persons & Property & securing to them all the Possessions, Rights and Privileges they have hitherto enjoyed, & are entitled to, most cautiously guarding against any Invasion or Occupation of their Hunting Lands, the Possession of which is to be acquired by fair purchase only …58

This memorandum reflects the indigenous understanding of the Treaty of Niagara of 1764.

George III was offering his protection to equals, not to subject nations. The reason for the Proclamation was to establish the Crown’s supremacy over its North American territories following the Treaty of Paris of 1763. This treaty concluded the territorial settlement at the end of the Seven Years’ War, the last great European war before the French Revolution. The war was fought between Great Britain, Hanover and Prussia on one side and France, Austria, Saxony and Sweden on the other. One of the principal reasons for the conflict was to settle the division of French and British rights to territory in North America.

John Borrows59 reminds us that the Royal Proclamation and the ensuing Treaty of Niagara of 1764 were the results of a two-way negotiation process – a process during which the indigenous chiefs thought about their future. He also points out that theirs was an oral culture, so that the documents which emanated from these negotiations showed only one side of the picture. He claims that the idea of distributing the wampum belts on the conclusion of the Treaty of Niagara came from Sir William Johnson, who was the Crown’s representative at the negotiations for the Treaty.60 Yet this was a Proclamation and a Treaty with what were regarded at the time as sovereign nations, which were recognised as able to form alliances with the Crown. Borrows61 tells us that negotiations with indigenous peoples were conducted on a ‘government to government’ basis and that the indigenous peoples expected and received gifts in recognition that the land was theirs to share. If the gifts did not appear, conflicts arose.

This indicates that the indigenous peoples as sovereign nations were also making an offer of protection to the settlers, and one which was of greater significance at the time as the incomers needed guides and knowledge of how to cope with the difficult terrain as well as allies for military power. Borrows62 sees the Proclamation as an attempt to delineate indigenous territory and to define jurisdictions after a period of increasing conflict. He refers to it as ‘a codification of pre-existing First Nation/Colonial practice’.63 Yet this analysis of the relationship was more honoured in the breach than in any other way once the Crown had established military superiority. Taken at face value, such an interpretation would preclude the Crown from unilaterally requisitioning indigenous land or from entering into treaties with indigenous peoples in the absence of full information and disclosure of terms which adversely affect indigenous rights – a concept which has come down to us as ‘free, prior and informed consent’ in the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in 2010. It would preclude the Crown from taking adversarial action through the courts to oppose indigenous land claims. And, most importantly, it would preclude the Crown from insisting that indigenous rights be extinguished on the signing of any treaty. The Crown could not deal in indigenous land without the free, prior and informed consent of all members of the group whose land is to be taken.64

Yet the Proclamation refers to indigenous lands as being ‘such Parts of Our Dominions and Territories’ – i.e. they were already to be treated as Crown lands, in breach of the fiduciary duties undertaken by the British Crown. The RCAP Report suggests that this signifies the adoption of the doctrine of discovery65 with regard to these lands.66 The Report goes on to note that:

It appears that European and Aboriginal interpretations of their agreements, whether written or not, differed on some key issues. The two principal ones were possessory rights in the land and the authority of European monarchs or their representatives over Aboriginal peoples. In general, the European understanding – or at least the one that was committed to paper – was that the monarch had, or acquired through treaty or alliance, sovereignty over the land and the people on it. The Aboriginal understanding, however, recognized neither European title to the land nor Aboriginal submission to a European monarch.67

…

These incongruities could co-exist without creating conflict because, for the most part, the parties were unaware of the significant differences in interpretation. Indeed, the deep differences in world view may have gone unexpressed simply because they were so fundamental and so different.68

Aboriginal treaties were much more than a contractual relationship: they created a living relationship and they required ceremonies in which they were renewed and the parties reconciled. They evolved over time and developed and changed as people grew to know each other better.69 J.R. Miller tells us that indigenous/European treaty-making was based on kinship tradition and that the ceremonial created ‘fictive kinship’ so that trading arrangements were seen as part of treaties of peace and friendship. These ceremonies were repeated each time the parties met so that the peace and friendship was renewed and the arrangements could be updated if necessary.70

Whereas in land claims indigenous people are called upon to prove occupation of their lands since time immemorial,71 the Canadian judiciary has never challenged the Crown’s sovereignty over indigenous land. This is despite the fact that the Crown’s negotiators of the numbered treaties (see below) and other agreements were careless about whom they chose to represent the indigenous group concerned, to the extent that there are questions over the validity of these arrangements.72 According to Colin Calloway,73 the indigenous peoples of Quebec never considered themselves to be governed by the French. An Ojibwa chief told the British after the fall of Quebec: ‘Although you have conquered the French, you have not yet conquered us! We are not your slaves. These lakes, these woods and mountains were left to us by our ancestors. They are our inheritance and we will part with them to none.’74

Borrows notes75 that in Article 40 of the Articles of Capitulation at the end of the Seven Years’ War, both the British and the French speak of the indigenous peoples as autonomous and independent. Sir William Johnson wrote to the Lords of Trade that ‘having never been conquered, either by the English or the French, nor subject to the Laws, [the Iroquois and eastern Indians] consider themselves as a free people’.76 Macklem tells us that imperial dispatches and correspondence sent out before the Proclamation gave its purpose as to demonstrate ‘a Readiness upon all occasion to do them justice’77 and to give ‘Royal protection from any Incroachment on the Lands they have reserved to themselves, for their hunting Grounds, & for their own Support and Habitation’.78

The Royal Proclamation was confirmed by the Treaty of Niagara of 1764, a treaty of ‘offensive and defensive alliance’, according to Sir William Johnson who represented the Crown. The terms of the Treaty were also represented by the wampum belts presented on the signing of the Treaty. The two rows of purple beads set in a bed of white beads (signifying purity) represented the intention of the indigenous and the non-indigenous people to lead separate lives according to their own world view but joined together in mutual respect, peace and friendship. This relationship was worked out in a series of proclamations and treaties. The wampum belts, understood by all parties to the Treaty, signify the true meaning of the Proclamation because they are the record of the party which acted to its detriment in giving the Crown a degree of control over its land. Thus, the Crown owes a duty to protect the land and the whole way of life of the indigenous people. This interpretation is confirmed in the letters written by Sir William Johnson to the Lords of Trade in 1764.79 J.R. Miller tells us that, unless wampum was exchanged, the agreement was not to be taken seriously.80 Further, Kathryn Muller tells us, wampum ‘carried an inherent spiritual power in addition to serving as mnemonic devices that record transactions.’81

Writing to General Sir Thomas Gage, acting commander-in-chief of the British Army in North America, Sir William Johnson told him: ‘We should tye them down … according to their own forms of which they take the most notice, for Example by Exchanging a very large belt with some remarkable & intelligible figures thereon.’82

The Proclamation claims sovereignty over Quebec, East Florida and West Florida deriving from the Treaty of Paris of 1763, and purports to be the settlement of British claims to French-held American territory. This settlement was reached over the heads of the indigenous people. First, George III prohibited the Governors of his 13 American colonies from granting rights of survey over indigenous lands which were not as yet ceded to or purchased by the British. The Proclamation continues:

And we do further declare 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, also 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.83

The wording ‘for the use of’ mirrors the form of words of trust in use at the time: ‘to the use of’. ‘For the use of’ is also the form of wording used in the numbered treaties to establish the Crown’s fee-simple title over indigenous lands. John Borrows notes the ambiguity of the wording,84 which ostensibly affords the indigenous people the protection of their way of life as indicated by the wampum belts and at the same time affords a mechanism through which indigenous lands could be acquired. Leonard Rotman85 observes that the surrender provision enabled the Crown to monitor the activities of the French, American and indigenous peoples while keeping them apart. Furthermore, since some Indian bands were the allies of the French, it was essential that the Crown won them over to the British side.86 But, as Borrows points out,87 words such as ‘sovereignty’ and ‘dominion’ were inserted into the Royal Proclamation without the consent of the indigenous peoples. So far as the indigenous peoples are concerned, they can thus have no force or effect.

Borrows88 describes the Royal Proclamation as confirmed by the Treaty of Niagara of 1764 and the wampum belts as ‘the most fundamental agreement’ and one that was ‘more than a unilateral declaration of the Crown’s will’.89 He argues that the sui generis description (see below) leads judges to interpret treaties under the law of contract and that this interpretation should allow the court to consider the implied terms in any treaty, including those provided by the Royal Proclamation. He believes that a contractual interpretation would provide more consistency in indigenous law and would avoid the trap of perceiving the indigenous people as in any way ‘subservient’. His ultimate conclusion is that colonial interpretations of the Royal Proclamation are a way of dispossessing indigenous peoples of their rights.

Yet, for valid reasons, fiduciary relationships can be arranged between parties with equal power and still leave one party more vulnerable than the other. A fiduciary relationship creates more benefits than a contractual one and is no reflection on the status of the original parties.

There are some who remain true to the fiduciary duty established by the Royal Proclamation, however. When chairing the Mackenzie Valley Pipeline Inquiry, which was established in 1974 to report on the impacts of a pipeline which was proposed for the Mackenzie Valley in the Northwest Territories, Thomas Berger chose to concentrate on the social, environmental and economic impact within the region. In doing so, he fulfilled the true role of a fiduciary, refusing to put the Crown’s interests in oil and gas before those of the aboriginal people in their land. Concluding that the non-indigenous population was transitory and that the majority of non-indigenous workers would return south, he attached the greatest importance to the effect of the proposals on the indigenous way of life, concluding:

The culture, values and traditions of the native people amount to a great deal more than crafts and carvings. Their respect for the wisdom of the elders, their concept of family responsibilities, their willingness to share, their special relationship with the land – all of these values persist today, although native people have been under almost unremitting pressure to abandon them.

Native society is not static. The things the native people have said to this Inquiry should not be regarded as a lament for a lost way of life but as a plea for an opportunity to shape their own future, out of their own past. They are not seeking to entrench the past but to build on it.90

To the dismay of the Canadian government and the oil companies, Berger ordered a ten-year moratorium so that the aboriginal people could have their land claims settled and thus benefit from the revenues from oil found on their territory.

In 1981, Berger published extra-judicially his book Fragile Freedoms: Human Rights and Dissent in Canada and told an audience at the University of Guelph: ‘In the end, no matter what ideology they profess, our leaders share one firm conviction: that native rights should not be inviolable, the power of the state must encompass them.’91

Patrick Macklem points to three flaws in current indigenous jurisprudence:

First, it unreasonably restricts constitutional protection to pre-contact cultural practices integral to Aboriginal cultural identities. Second, it fails adequately to explain why interests associated with Aboriginal cultural difference merit constitutional protection. Third, and perhaps most important, it treats Aboriginal cultural difference as though it were the only aspect of indigenous difference worthy of constitutional protection, ignoring the fact that indigenous difference also includes Aboriginal prior occupancy, Aboriginal prior sovereignty and Aboriginal participation in a treaty process.92

The Royal Commission on Aboriginal Peoples recognised that:

When Europeans first came to the shores of North America, the continent was occupied by large numbers of sovereign and independent Aboriginal peoples with their own territories, laws and forms of government. These nations entered into relations with incoming European nations on a basis of equality and mutual respect, an attitude that persisted long into the period of colonisation.

The Crown is in breach of its fiduciary duty to allow the indigenous peoples to live independently, unmolested on their lands. It seems the view was taken that, once peace was restored on the American continent, there was no need to respect the promises given in the Royal Proclamation. In order to accommodate the mass migration from Europe, it became expedient to deprive the indigenous people of their land and their right to maintain and develop their traditional life. It soon became expedient to override indigenous civilisations and label their adherents as savages or as simple children not ready to join sophisticated non-indigenous society.

According to Rotman:

The process of colonialism meant that the Crown’s sovereign relations with the aboriginal peoples that had been honed over centuries were left to decay in mere decades. The Crown renounced responsibility for the sovereign alliances that it had voluntarily entered into and the resultant responsibilities that it had undertaken through the terms of various Indian treaties and compacts, in favour of achieving its long-standing colonialist goal in North America. Yet throughout the process of the decay of this unique relationship, the Crown continued to enter into treaties with the aboriginal peoples and to affirm to them the sovereign nature of their rights and status in Canada. The Crown’s justification of its activities under the rule of law, however, was as faulty as the very foundations of the colonialist doctrines on which its claim to absolute sovereignty over Canada was based.93

Speaking of fiduciary duties in general, not just those owed to indigenous peoples, Finn94 maintains that the recognition of a fiduciary duty is nothing more than a matter of public policy. Once the utility of the Crown’s guarantee to the indigenous people of Canada ceased to be recognised, the Crown failed to honour its promises.

There is confusion between the duties which the Crown assumed by virtue of the Royal Proclamation – which are fiduciary and proprietary – and those which it created under the Indian Act, in which the Crown perceives itself as the guardian over its indigenous wards, a relationship which leaves indigenous peoples with no more powers than minors.

Yet the Royal Proclamation was addressed to, and the Treaty of Niagara was concluded with, what were regarded at the time as sovereign nations who were recognised as able to form alliances with the Crown. Thus, the personal fiduciary duty is a more appropriate interpretation of the duty owed by the Crown to its indigenous peoples. By assuming responsibility for indigenous lands, the Crown also assumed a proprietary fiduciary duty. As we shall see in Chapter 16, this is a principle as pertinent today in the interpretation of the negotiation and terms of the Tshash Petapen Agreement in Labrador as it was to the negotiation of a treaty of offensive and defensive alliance in the proceedings at Niagara in 1764. As Rotman95 points out, ‘a nation did not need to treat with its own subjects’. The provisions of the Indian Act 1876 and its subsequent amendments are a dilution of these fundamental duties, instigated after Canada’s indigenous peoples had been suppressed by the treaty process and decimated by European disease, with the indigenous population reduced to one tenth of its former size. The Indian Acts were a process by which indigenous peoples were given a separate status pending full assimilation into Canadian society. Purporting to place the Crown in a position of wardship over indigenous peoples, they took away rights to self-determination and territory guaranteed by the Royal Proclamation.

Yet James (Sake) Youngblood Henderson points out that: ‘Only positive law empires created around centralized rulers or aristocratic society can transfer total control to another ruler. This attribute was missing in First Nations. None of the First Nations had any such idea or structure. The First Nations leaders were not superiors that directed the will of the inferiors; instead, they were limited representatives of the people.’96

J.R. Miller elaborates on this, pointing out that indigenous peoples lived in non-state societies whose functions were misunderstood by the Crown’s representatives, as was also the way in which they were governed.97

This is apparent in the introduction of the Indian Act in 1876, which codified existing legislation dealing with indigenous peoples and brought in a regime in which they were to be treated as wards of the Crown, with no more legal standing than children. The Crown was to make all decisions regarding their way of life – a more convenient interpretation of the fiduciary duty for the land-hungry settlers. As Miller points out:

The trustee–ward, adult–child relationship embodied in the Indian Act was the antithesis of the kindred relationship – brother to brother, sister to sister under their mutual parent, the Great White Queen Mother – that both sides had talked about during treaty negotiations. The federal government pushed this evolution to its perversely logical end in 1880 with the creation of the Department of Indian Affairs. Ottawa had transformed First Nations into administered peoples with the Indian Act; it equipped itself with the machinery to administer them in the Department of Indian Affairs.98

Between 1927 and 1951, section 141 of the Indian Act even made it a criminal offence to raise money to fund challenges to treaties:

Every person who, without the consent of the Superintendent General expressed in writing, receives, obtains, solicits or requests from any Indian any payment or contribution or promise of any payment or contribution for the purpose of raising a fund or providing money for the prosecution of a claim which the tribe or band of the Indians to which such Indian belongs, or of which he is a member; has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offence.

For the time being, the Crown had reneged on its fiduciary duty. There was no longer any need for a treaty process. Until the decision in Calder v Attorney General for British Columbia in 1973, the federal government could move settlers and corporations onto indigenous land with impunity.