claimants argue that, whatever negotiations and agreements are claimed by the Crown to have been reached with their ancestors, the representatives who signed the treaties had not been mandated to do so by their constituencies, and there was insufficient knowledge of and/or participation by the required majority of the Indigenous land holders to render the treaty legal.
In these interpretations, the possibility that Aboriginal peoples may not have wanted to sell, cede or by treaty give sovereignty or lands to anyone is not provided for in the written words of the Royal Proclamation of 1763. Nor is the possibility entertained that Aboriginal sovereignty could remain dominant, or could co-exist with Crown sovereignty.
Another significant debate about the Royal Proclamation of 1763 centres on the degree to which both British and Aboriginal intentions and understandings should inform contemporary interpretations. United States Native American legal scholar Robert Williams Jr. argues that the proclamation’s “two goals—facilitating the profitable Indian trade and protecting Indian lands to prevent costly hostilities—were viewed as complementary halves of a self-serving colonial policy put forward by mercantilist interests and their advocates in the British Ministry at Whitehall in the 1760s.” “Its discourse,” Williams continues, “was one of interest and expediency as articulated by armchair empire builders in the Old World, who viewed the honoring of promises made to savages in the New World as the cheapest, most ‘expedient’ means of containing both frontier defense costs and inland expansion by British American colonists.”19
Canadian First Nations legal scholar, John Borrows, reiterates Williams’ points about British intentions, but argues that interpretations of the Royal Proclamation limited to the words written in the document alone do not take into account the negotiations, gift-exchanges and other events that took place surrounding the production of the written text and recorded in First Nations oral traditions that reveal their intentions and interpretations. Ignoring the oral history of the Royal Proclamation, Borrows charges, “privileges one culture’s practice over another.” He goes on to argue that his inter-cultural interpretation of the Royal Proclamation suggests that “The Proclamation uncomfortably straddled the contradictory aspirations of the Crown and First Nations when its wording recognized Aboriginal rights to land by outlining a policy that was designed to extinguish these rights…. The different objectives that First Nations and the Crown had in the formulation of the principles surrounding the Proclamation is the reason for the different visions embedded within its text. Britain was attempting to secure territory and jurisdiction through the Proclamation, while First Nations were concerned with preserving their lands and sovereignty.”20
1. Calvin’s Case 1608 cited in Walters 1993: 360.
2. For a thorough, and very readable, account of the application of terra nullius in Canada, see Richardson 1993.
3. For a comprehensive analysis of this argument see Asch and Macklem 1991. The authors conclude: “We believe it abhorrent that Canada was constituted in part by reliance on a belief in the inequality of peoples and that such a belief continues to inform political and legal practice in 1991” (510).
4. For a very thorough articulation of this argument see Derrida 1992. See also Hunt 1993; and Sayer 1987.
5. Aboriginal legal scholar James Youngblood Henderson, for example, explains that “Canadian law is not impersonal but racially biased; its legitimacy is threatened if not destroyed by its denial of order and freedom to Aboriginal people…” Henderson and Henderson 1985: 186.
6. See, for example, Hamilton and Sinclair (eds.) 1991; and Turpel 1991(c).
7. See Dyck 1991.
8. See Venne 1997; and Chamberlin 1997.
9. Dickason 1992.
10. Henry 1809 quoted in Jones 1982; and Slattery 1985: 119.
11. The phrase, “Imperialist Nostalgia,” is taken from Rosaldo 1989, who defines it as the yearning for that which one has destroyed.
12. Laslett (ed.) 1964.
13. Francis 1992; and Trouhillot 1991.
14. Tully 1993(b).
15. Tully 1993(c): 10.
16. There have been a number of published versions of the Royal Proclamation of 1763, and wording varies in different publications. The quotation cited here is taken from Chief Justice Allan McEachern’s 1991 Reasons for Judgment, in Delgamuukw v. R., 313.
17. For a survey of debates about both the historical context in which the Royal Proclamation was negotiated and the legal consequences for Canadian Aboriginal peoples in the present see Borrows 1992, 1997; Slattery 1991; Walters 1993. For analysis from a Native American (U.S.A.) perspective, see Williams, R. A. 1990(b).
18. The intended meaning of this language has also been hotly contested, with some arguing that the British Crown thereby recognized the sovereignty of Indian Nations, and others asserting that the words were used rhetorically or insincerely by the British to appease the Indians.
19. Williams, R. A. 1990: 237.
20. Borrows 1997: 160-161.
PART III
TERRA INCOGNITA
(UNKNOWN LAND)
Chapter 5: The Great Chain of Precedent
Suddenly, even the most hardened land-market capitalist assumed the mantle of zealous advocate of the Indians’ natural-law right to engage in unregulated real estate transactions. Neither the King, nor the landed colonies “owned” the lands on the frontier, argued these speculators. The Indian tribes occupied these lands as free and sovereign peoples. By natural law, the Indians could therefore sell their rights to the land to whomever they pleased, the Proclamation of 1763 and the landed colonies’ charter claims notwithstanding.
—Legal scholar Robert A. Williams, Jr., 1990, The American Indian in Western Legal Thought: Discourses of Conquest.
Honour Among Thieves. South of the Border
In British law, one of the principal means that judges use to reach decisions about particular cases is through the use of precedent. Precedents are the decisions reached by previous judges in similar cases. A contemporary judge compares the facts before her or him, searches for cases that dealt with similar fact patterns, and interprets and applies the reasoning and findings of judges in those previous cases to the one at hand. This is referred to in legal parlance as the “doctrine of stare decisis.” It is based on the premise that fairness and equality before the law requires that like cases should be decided alike. Reliance on precedent is often pointed to as an inherently conservative characteristic of law, whereby justification must always be anchored in the past. However, contemporary critics argue that the notion that past precedents limit and determine present judgments is frequently overstated by representatives of the judiciary. Anthropologist Michael Asch and Law Professor Catherine Bell, for example, argue that “it is not precedent itself that binds, but judicial interpretation of the past and its relevance to the present…. Adopting interpretive strategies, a judge chooses one precedent in favour of another, appearing to find, rather than create law. The appearance of finding is important because it deflects charges of result-oriented reasoning and judicial legislation.”1 Legal scholars Gerald Torres and Kathryn Milun, point out that the rule of precedent serves more importantly to consolidate law’s desire to define the future. They write,
