and collective survival, depended upon the imposition of a sovereign’s power and government to contain and control an essentially competitive and aggressive “human nature.” The Hobbesian “state of nature” that he, too, claimed was being lived in eighteenth century Indigenous societies in the Americas, was one of constant warfare, an absence of law or government, and a life that was “nasty, brutish and short.” Whatever the western rendition of “primitive life,” Aboriginal peoples occupied one or another of these “savage slots” in the European imagination: noble child of harmonious nature, or dangerous child of animal instinct.13 In whichever rendition, Aboriginal peoples were used as a tabula rasa upon which Europeans could project whatever theoretical or cultural fashion seized the fantasy of the day. In both renditions, the reality of the ways of life, lived experiences and self representations of Aboriginal peoples are sacrificed to the European imagination. These “grand theories” competed with each other for acceptance amongst professional and popular audiences.
Enough and As Good
John Locke is usually identified as the most significant political theorist of this imperial era in Britain. Locke gathered together arguments circulating during the early seventeenth century and set them out in theories that would serve many of the later legal and political justifications of European seizure of property in North America.14 Locke, in the fashion of the times, argued that Aboriginal peoples lived in a pre-political state of nature representative of the first stage in universal human evolutionary development. Important characteristics of this early developmental phase included a hunting and gathering economy with no perception of established systems of property or government. Europe correspondingly represented the most advanced stage of evolutionary development. This was proven by the practice of agriculture; the existence of a legally codified system of property with written laws; a bureaucratic government; and a capitalist economy in which all exchanges of commodities in the market place between people are conducted through the common medium of money, the value of which is ultimately guaranteed by the state. The sovereign’s image stamped on coinage symbolically represents the presence of the hovering sovereign mediating every monetary exchange between citizens.
Locke went on to theorize that Aboriginal peoples therefore had property rights only “in the products of their labour: the fruit they gather, the deer they catch and the corn they pick.” In this they are governed by a “natural law,” Locke mused, that says each individual may appropriate what nature offers up without consultation with, or consent by, anyone else “as long as there is enough and as good left in common for others.” Locke reasoned that Europeans would increase the productivity of the land through agriculture and were therefore justified in appropriating Aboriginal lands without consent. Since this process was governed by the “natural law” of evolutionary development, if Aboriginal peoples inhibited European settlement, they would be in violation of natural law and could justifiably be eliminated. Philosopher James Tully concludes that, if Locke had recognized Aboriginal forms of property, and Aboriginal peoples as equal to Europeans, then “settlement in America would have been illegitimate by his own criteria of ‘enough and as good,’ and consent would have been required.”15
Nation to Nation. Words to Paper.
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.
—“The Indian Provisions,” Royal Proclamation of 1763.16
The prevailing conditions in eastern Canada during the early 1760s were very complex,17 and formed the historical context in which the Royal Proclamation of 1763—a document that continues to be the subject of legal and political debates today—was issued. The British were faced with a number of problems. Their relationship with Indian nations who had been allies of the French was precarious. During the Seven Years War between Britain and France there had been active competition for Indian allies, and British army commanders in the field had been generous in their purchases of furs and exchanges of ammunition. After the war, London cut back these funds considerably and field commanders found themselves unable to honour commitments they had previously made. Entrepreneurial settlers and fur traders were making independent incursions on Indian lands and resources, impeding the development of the Crown monopoly. On the international front, Britain’s hegemony in North America was still threatened by the Russians from the north, and the Spanish from the southwest. The Royal Proclamation of 1763 attempted to address all of these issues.
Competing interpretations of the historical, legal and political implications of the Royal Proclamation of 1763 have occupied a central place in Aboriginal title and rights discourse and litigation over the past two centuries. A key debate surrounds the question of whether or not the Royal Proclamation should be interpreted as having recognized already existing Aboriginal rights, or as having created these rights. The former, which has since come to be known as the “inherent rights” position, is based on the assumption that Aboriginal rights today flow continuously from the sovereignty of nations that pre-existed European colonization. The latter—the “delegated rights” position—argues that, in law, no rights can exist except those created by the will of the sovereign. Hence, contemporary Aboriginal rights could only be those that a sovereign, or a court, or a parliament chooses to assign. Such rights would always be based in the desires of these bodies, and not in Indigenous history. And what the sovereign creates, the sovereign can also destroy or dismiss, at his pleasure.
Analysts agree, however, on some points. The Royal Proclamation differentiated Indian title to land in North America from non-Indian title in five significant ways. First, it reflected the fact that, in 1763, the Crown understood that it must at least formally recognize the legitimacy of, and negotiate on equal political grounds with, “Indian Nations.” The Royal Proclamation is guided by the doctrine of conquest set out in the Memorandum of the Privy Council in 1722.
Second, under the Proclamation, Indian title is defined as being collectively or communally, not individually, held. Furthermore, this title is limited to use rights, like hunting and fishing, that are comparable to perpetual leases rather than to ownership. The uses in question must be only those practiced before European arrival. The Royal Proclamation therefore acknowledges First Nations as having some form of interest in their lands and resources. Whether, by legal interpretations, or cultural assumptions, this “Indian title” is of equal value to “Crown title,” or is some less valued form of property right that constitutes “a burden” on the Crown’s title, is a subject of ongoing controversy. Third, the Proclamation dictates that Indian title can be only be transferred to the Crown. A number of debates have arisen concerning both the intent and the consequences of this clause. Many historians have argued that the insertion of this clause was primarily motivated by a humanitarian, paternalistic concern to protect Indians from unscrupulous frontier land speculators. Others argue that this clause reflects a power struggle between the Crown as state, and corporate and private interests, for monopoly over lands and resources. Still others focus on competition between international imperial interests and those of the emerging local, colonial governments.
Fourth, the Proclamation identifies Indians as “Nations or Tribes”18 and guarantees Indians the protection of the Crown. This would later come to be expressed as a “fiduciary duty.” Ongoing debates involve whether or not this fiduciary duty and the obligations it entails should be interpreted as resulting from a negotiated, trust-like agreement between equal parties, or as reflecting a relationship of dependency analogous to the parent/child relationship which is also classified, in law, as a “fiduciary duty.”
Fifth, the Royal Proclamation requires that Indigenous land rights can only be surrendered at a public assembly at which Indians give their consent.
