The argument for the application of the royal proclamation of 1763 to British Columbia, its force and effect
Creators: name: Hutchings, Patricia Margaret
Publisher: name: University of British Columbia
Year: 2010

description: The purpose of this work is to construct the argument for the continuing application of the Royal Proclamation of 1763 to British Columbia and to examine its legal force and effect in relation to pre-Confederation colonial legislation. This has important implications as to the continued existence of aboriginal title in British Columbia. In Canada the existence of a sui generis, aboriginal legal interest ("aboriginal title") is no longer in doubt.(1) Scattered judicial statements have not fully addressed the sui generis nature of the interest but have focused solely on its 'common law' source(2) and have held it, like other common law rights, to be subject to legislative abrogation.(3) That is not to say extinguishment will be lightly implied.(4) Aboriginal rights are now recognized and confirmed in the Constitution Act.(5) To the extent that the aboriginal right is declared and confirmed in the Royal Proclamation of 1763(6) a different argument can be made.(7) The Royal Proclamation is a Prerogative instrument. The "Indian provisions" come towards the end of the Proclamation and address a series of diverse issues. Confusion exists as to the geographic scope of the provisions concerning Indian lands and particularly regarding their application to British Columbia. It is here argued that it is misleading to focus solely on the geographic scope as explained in the document itself. The Royal Proclamation of 1763, as a law of constitutional significance and manifestly universal application, it is argued, applied to British Columbia, if not as of its enactment in 1763, then either upon the assertion of British Sovereignty over that area or by virtue of the Colonial Laws Validity Act, 1865. Further it is argued that the Proclamation enjoyed the force and effect of an Imperial statute in the colonies to which it applied. The Indian rights therein declared or confirmed thus became statutory rights. This has important implications regarding the susceptibility of the articulated rights to colonial legislative derogation. In order to understand fully the import of the Royal Proclamation in the colonies it is necessary to understand British constitutional rules governing the nature and exercise of the Sovereign's prerogative legislative and executive powers in newly acquired territories and the rules governing the Imperial laws to which the colonies are subject. Whether or not the Royal Proclamation extends to after acquired colonies depends in part upon the category of Prerogative to which the Proclamation belongs. Basically "minor" prerogatives operate in those territories in which the British common law operates and are freely alterable by the colonial legislative bodies. "Major" Prerogatives, however, exist in all British territories whether or not the British common law is in force and operate to bind and limit colonial legislatures. The argument is made that the Indian land provisions of the Royal Proclamation of 1763 should be classified as major Prerogative legislation on the grounds that: (1) they are constitutional in nature having to do principally with limitations on the powers of Governors to acquire unsurrendered tribal lands, or (2) as legislation governing the procedure to be adopted for Crown alienation of Indian lands they fall within the King's peculiar authority. Further that as major Prerogative legislation the Indian Land provisions enjoyed the force and effect of an Imperial statute with the necessary intendment for the colonies within the meaning of the Colonial Laws Validity Act, 1865. Further that by virtue of such Act the provisions of the Royal Proclamation of 1763 (at least up until the passing of the Statute of Westminster, 1931) operated to void colonial legislation (or for that matter Dominion or Provincial legislation) repugnant to any of its provisions to the extent of any such repugnancy. (1) Guerin v. R^, [1984] 6 W.W.R. 481 (S.C.C.). (2) Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C. 518 (F.C.T.D. 1979) at p. 568. (3) A.G. of Ontario v. Bear Island Foundation (1984), 15 D.L.R. (4th) 321 (Ont. H.C.). (4) Simon v. The Queen (1985), 23 C.C.C. (3d) 238 (S.C.C.). (5) Constitution Act, 1867 30 &amp; 31 Vict., c. 3 as am. by item 1 of Sched. to the Constitution Act, 1982, Sched. B of the Canada Act, 1982, c. 11 (U.K.). (6) R. v. White and Bob (1965), 52 W.W.R. 193 (B.C.C.A.). (7) v. White and Bob (1965), 52 D.L.R. (2d) 481 (S.C.C.).