The Royal Proclamation of 1763 was issued by King George III to establish a basis of government administration in the North American territories formally ceded by France to Britain in the Treaty of Paris, 1763, following the Seven Years War. It established the constitutional framework for the negotiation of treaties with the Aboriginal inhabitants of large sections of Canada, and it is referenced in section 25 of the Constitution Act, 1982. As such, it has been labelled an "Indian Magna Carta" or an "Indian Bill of Rights." The Proclamation is also significant because it contributed to the outbreak of the American Revolution in 1775 — as it legally defined the North American interior west of the Appalachian Mountains as a vast Aboriginal reserve, thus angering inhabitants of the Thirteen Colonies who desired western expansion.
King George's proclamation became a key legal instrument for the establishment of colonial governments in the provinces of Québec, East Florida, West Florida, and Grenada. It also reserved a large area in the North American interior for the exclusive use of Aboriginal peoples. The eastern boundary of this territory, which excluded the colony of Québec and the Hudson's Bay Company’s lands, was set along the Appalachians. The western border was not specifically described.
With regards to Aboriginal rights, the proclamation states explicitly that Aboriginal people reserved all lands not ceded by or purchased from them:
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 Role of Pontiac’s War
By promising First Nations a degree of land security, the British government was trying to stabilize the western frontier of the Atlantic seaboard colonies. This decision was hastened by news that an emerging Aboriginal confederacy, fighting under Odawa chief Obwandiyag, also known as Pontiac, had briefly seized ten British military posts in the Great Lakes area beginning in the spring of 1763. Pontiac’s forces sought to demonstrate that Aboriginal peoples were still masters of their ancestral lands, despite the British victory over the French army.
To imperial authorities, Pontiac’s War underlined the self-interested wisdom of protecting First Nations from the expansionism of the Thirteen Colonies. They hoped that this would inspire First Nations people, many of whom had recently fought against the British as allies of the French, to accept British rule. The implications of doing otherwise – and of incurring an enormous expense for the maintenance of law and order in North America – were unthinkable to the parsimonious officials responsible for the defence of the British Empire.
The Proclamation and Treaty-Making
King George reserved the western lands as exclusive “hunting grounds” for the “several nations or tribes of Indians” under his “protection.” As sovereign of this territory, however, the king claimed ultimate “dominion” over the entire region. He further prohibited any private person from directly buying Aboriginal lands. Instead, he reserved right of purchase for himself and his heirs alone. The proclamation set out a procedure whereby an Aboriginal nation, if they freely chose, could sell their lands to properly authorized representatives of the British monarch. This could only take place at some public meeting called specially for the purpose. This established the constitutional basis for the future negotiation of Aboriginal treaties in British North America, making the British Crown an essential agent in the transfer of Indigenous lands to colonial settlers.
The first systematic attempts to enforce the treaty-making provisions of the Royal Proclamation took place in the regions north of the Great Lakes, which became Upper Canada in 1791. The treaty-making procedures that evolved in this crown colony were later exported to the territories (Rupert’s Land and the North-Western Territory) purchased in 1870 by Canada from the Hudson's Bay Company.
Canadian government officials recognized that the Aboriginal peoples of the newly annexed western territory had the same rights to their ancestral lands as eastern First Nations did to their own. Eleven numbered treaties were negotiated in the Prairie provinces, northeastern British Columbia, northern and northwestern Ontario, and the western part of the Northwest Territories in the late 19th and early 20th centuries on the principles outlined in the Royal Proclamation of 1763.
Constitution Inclusion and Debate
The Royal Proclamation tends to be closely scrutinized whenever there is cause to examine the legal character of Aboriginal land title. For example, the St. Catharine's Milling case of 1888 was used to settle a constitutional dispute between the governments of Ontario and Canada; during the case, lawyers for the Ontario government argued that the Royal Proclamation was of no force in the legal elaboration of Aboriginal rights. However, in 1973, Supreme Court judge Emmett Hall expressed quite a different view of the proclamation. Responding to a case involving the territorial rights of the Nisga'a Nation, he found that the basic principles of the Royal Proclamation were generally applicable in British Columbia, where the majority of land remains unceded by treaty. The implications of this decision are that Aboriginal land rights are legally enforceable over other large areas of the country such as the Yukon, the eastern Arctic, parts of Québec, and the Maritime provinces.
Whether the constitutional applicability of the Royal Proclamation refers to all of Canada or only to parts of the country is an ongoing source of debate. Another question to be faced is whether the Proclamation is itself the source of Aboriginal land rights, or whether it merely acknowledges and confirms pre-existing rights.
The proclamation is referenced in section 25 of the Constitution Act, 1982. This provision dictates that nothing in Canada's Charter of Rights and Freedoms diminishes Aboriginal peoples’ rights as expressed in the Royal Proclamation. This reference to the proclamation in the Constitution Act assures that its interpretation will remain an important part of any attempt to clarify Aboriginal rights in Canadian law.