Towards the Royal Proclamation and Covenant of Reconciliation: Short in-class discussion exercise for Constitutional Law

from_collections_canada
Royal Proclamation of 1763

Patricia Cochran
Faculty of Law
University of Victoria
pcochran@uvic.ca

This is a description of and reflection on an in-class exercise I did with a group of 115 students studying constitutional law.  The exercise asked the students to respond to the TRC’s call for the creation of a Royal Proclamation and Covenant of Reconciliation.

Call to Action 45 reads in part:

45. We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation would build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown.

In this exercise, I invited students to work together to address some preliminary issues that would need to be addressed in order to move forward with this recommendation.

Context

At my institution, constitutional law is a year-long, mandatory, first-year course that aims to introduce students to important constitutional law issues, and to provide students with a substantive and methodological foundation on which to further study the constitution in the future.  We meet for 1 hr and 20 minutes twice a week.  This year, the first four classes of the term were devoted to exploring questions around the sources of Canadian constitutional law and how those sources relate to each other.  In particular, we focused on the complicated questions of sovereignty, jurisdiction, and the history of Indigenous-Crown relations.  I assigned excerpts from:

  • the final RCAP report,
  • books by Jeremy Webber and John Borrows,
  • SCC decisions including Guerin and Tsilhqot’in.

borrows book

One key element of the course is participation in an online Reading Journal.  Throughout the year, students are asked to write a certain number of reflections (this year, 8) on the text we read, before we discuss them in class.  The journal entries are not evaluated on their content, only on the fact of their completion.  As an instructor, I find reading these journals an invaluable part of my teaching practice; they reveal to me common questions, themes, points of confusion and the amazing range of connections that students make to their other academic training, community work, and life experiences.

Class objectives

In the fourth class of the term, we addressed the difficulties that arise for Canadian constitutionalism when we squarely face the question of how Canadian law applies in this land at all.  Presented with the history of Canadian law and the inability of colonial law to justify itself on many of its own terms, students often see a crisis of legitimacy or a paradox.  This inherent tension is perhaps nowhere more starkly presented that in paragraph 69 of the Tsihqot’in  decision:

[69]      The starting point in characterizing the legal nature of Aboriginal title is Dickson J.’s concurring judgment in Guerin, discussed earlier.  At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province.  This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival.  The doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation of 1763.  The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.

In this class session, I aimed to provide ways for students to address this tension/crisis/paradox directly, and (drawing on the SCC’s reasoning in the Quebec Secession Reference and scholars such as Webber and Borrows) to think about ways in which constitutional law is a complex process for facilitating relationships.  Also, perhaps more than anything, I wanted to provide a way for students to hold in view a serious, foundational critique of the legitimacy of Canadian constitutional law, without seeing as inevitable a cynical, thin or purely instrumental understanding of what law is and its role in society.

To that end, I devoted the last 20 minutes of the class to a small discussion exercise addressing the Truth and Reconciliation Commission’s call for the creation of a Royal Proclamation and Covenant of Reconciliation.  My goal for this exercise was to orient students to the future and the ongoing relationships in which they participate.

In-class preparation

To prepare students to do the exercise, I spent about 20 minutes discussing the argument offered by John Borrows in Chapter 1 of Canada’s Indigenous Constitution.  I also spent about 20 minutes addressing, in very general terms, three legal theoretical concerns that I drew out of the questions and comments raised by students in their Reading Journals.  I wrote three sets of terms on the board, and under each set of terms, articulated for the full group several questions that were raised privately by students in their journals.

LAW/FORCE

LAW/CUSTOM

LAW/FACT

Under the first set of terms, we discussed law’s disputed relationships to violence, force and power.  I discussed arguments that law and force are mutually exclusive concepts (referencing the students’ exposure to legal positivism in their introductory legal process course), and arguments that legal structures are simply institutional articulations of political power relations.

Under the second set of terms, we discussed the potential usefulness of thinking about legal obligations as different from other kinds of obligations (here, drawing on an earlier class discussion of the Guerin case).  I identified the concerns about the conceptual indefinability of “law” (if everything is “law,” nothing is), as well as the history of using the boundaries of “law” to identify certain people as having none.

Under the third set of terms, I talked about legal claims as distinct from other kinds of “factual” claims.  Again drawing on Webber and Borrows, I described the possibility of understanding law a rhetorical practice, in which descriptive modes of speaking may simultaneously be exhortatory, aspirational, and future-oriented.  I emphasized for students the contested nature of that approach, inviting them to work on developing their own view.

webber book

Discussion exercise on the Royal Proclamation and Covenant of Reconciliation

Against that background, I invited students to work in groups of four to take up the TRC’s Call to Action 45.  I gave them only the first paragraph of the Call, leaving out the list of items that the Commission saw as important elements to include.  My rationale was to make sure students did not feel bound by that list, or distracted by the fact that most of its elements would be unfamiliar to them (not yet having studied s. 35, for example).

I acknowledged, and urged students to appreciate, that in order to meaningfully respond to this Call to Action, far more knowledge would be required and radically different processes would be needed.  Thus, I did not ask them to draft a new Royal Proclamation, but rather to address some preliminary questions.  The exercise directed as follows:

Drawing on the course materials in constitutional law so far, discuss this Call to Action with your group and create a record of your conversation on a large paper.

Consider the following questions:

1.     What form might such a Proclamation take? What would it look like?  (Format? Languages? Long or short? Detailed or general? Etc.)

2.     What are some of the substantive issues or themes that you would expect to find addressed in this Proclamation?

3.     What kinds of processes would be required to respond meaningfully to this Call to Action? (Who would participate? What knowledge and expertise would be required? Whose interests are at stake?)

In responding to these questions, you may find it useful to consider questions such as:

  • What would the scholars we have engaged with so far include in the Proclamation?  What would Webber think, what would Borrows think?  In what ways might they disagree?
  • How do your ideas for the Proclamation relate to the historical accounts offered by RCAP?
  • How does your discussion relate the new Proclamation to existing constitutional texts such as the Royal Proclamation 1763,  Constitution Act 1867, Constitution Act 1982
  • Is your new Proclamation consistent with Guerin? With Tsilhqot’in? Or does it change the law?  Does it take a form that can achieve that change?

To engage in this exercise, students were provided with 11 x 17 sized papers and coloured markers.  I gave them around 15 minutes to work on the three questions, to make notes on the papers, and then post their work around the room.  For the final 5 minutes, students walked around to read their colleagues responses.

TRC45

Reflections

Most student groups organized their notes according to the three questions posed, listing elements they discussed under each theme.  As expected, a large range of issues were discussed.  The prompt about language yielded an unexpected (to me) amount of conversation, with numerous groups exploring how to make their Proclamation equally authoritative and/or accessible in multiple languages.

On reflection, I believe the exercise achieved its core objective of providing students with an outlet for future-oriented thinking in constitutional law.  The largest drawback I observed relates to the basic tension I often experience in teaching a broad, introductory course, and that is the question of whether it is more pedagogically effective to begin from concepts or from context.  This exercise, presented so early on in the course and in such a short time, tended towards engagement with abstract concepts rather than the rich, real context of questions around sovereignty.  This made the exercise accessible, and served the objective of encouraging critical thought around basic concepts such as sovereignty.  However, it also encouraged a broad and sometimes superficial engagement, with many student groups speaking in general terms about justice and equality, with little attention to the real nature of the dilemma.  (For example, no student group noted whether their proposal contemplated a change to the law, or distinguished between actions that would have to be taken by federal and provincial governments, Indigenous governments, Canadian courts, civil society, etc.).  In some ways, the goal of the exercise was undercut to the extent that it allowed students to make sweeping claims about the legitimacy or illegitimacy of the Canadian constitutional order, without grounding those claims in legal or political context, or accounting for the implications of such claims.  This observation leads me to think that the value of an exercise such as this may be in its potential as part of a larger, iterative process.  Repeated again near the end of constitutional law, this exercise might allow students to draw together their forward-looking aspirations with a more concrete sense of its context and implications.

I will try some version of this exercise again in the future, with a view to framing constitutional law as a potential site for transforming relationships between Indigenous and settler peoples and legal orders, and individuals and communities as active agents in the creation of constitutional law.

Resources

John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010).

Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Oxford: Hart Publishing, 2015).

Guerin v The Queen, [1984] 2 SCR 335.

Reference Re Secession of Quebec, [1998] 2 SCR 217.

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

Information about the Royal Proclamation of 1763 from UBC Indigenous Foundations: http://indigenousfoundations.arts.ubc.ca/royal_proclamation_1763/.

 

 

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2 thoughts on “Towards the Royal Proclamation and Covenant of Reconciliation: Short in-class discussion exercise for Constitutional Law”

  1. Dear Professor Cochran,

    I was General Counsel to the TRC, but obviously (as you will see below) the Calls to Action belonged to the Commissioners.

    I like your discussion below. You are asking the students to think broadly and conceptually and to be questioning.

    For your future classroom discussions on TRC Call to Action #45, I invite you to consider the following perspectives.

    In my view, anything with the word “Royal” in it is tainted. You cannot oppose the doctrine of discovery (see the other Calls to Action on that point) on the one hand and then provide legitimacy to the role of the British Monarchy by calling for a Royal Proclamation on the other hand. In this way, the TRC Calls to Action are internally in conflict with each other.

    “Underlying Crown sovereignty” is by far and away the most important phrase in Canadian law. It is the phrase that strips indigenous peoples of their rights. It is the phrase that decides the legal rights over every single inch of Canada. It is the phrase that enshrines the doctrine of discovery as the most important law in Canada. Canadian courts have routinely cited the USSC decision in M’Intosh v. Johnson to support the conclusion of “underlying Crown sovereignty”. M’Intosh v. Johnson is the single most important court decision in Canadian legal history because of the many times it has been cited by our Supreme Court. When we seek to draft a Royal Proclamation, are we implicitly validating “underlying Crown sovereignty”, M’Intosh v Johnson and the doctrine of discovery?

    Further, anything with the “Royal” in it is insulting to Canadian democracy. We are a self-governing, democratic country (surely indigenous peoples can understand why that’s important). We are (for all practical purposes) completely independent from England and the English Monarch. A call for a proclamation from the English monarch is offensive to anyone who values Canada’s democratic independence. We have spent 150 years incrementally moving away from England. 1982 was a really big deal. Shouldn’t Canada continue its march away from England’s role in our laws? Canada does not make or recommend any Royal Proclamations because it is insulting to our democracy and just plain silly. A Royal Proclamation might be meaningful to some indigenous persons, it is insulting, absurd nonsense to me as a non-indigenous Canadian.

    Whatever role the English Monarch played in Canadian treaties of the past, that role has been legally transferred to Canada’s institutions. The English Monarch is no longer responsible for any of the treaties with indigenous peoples in Canada. Even when the English Monarch was the legitimate signatory to the treaties and responsible for them, we all know how the English Monarch dealt with those responsibilities. There is no reason to make believe that a Royal Proclamation by the English Monarch is going to somewhat change this history.

    Any suggestion that a “Royal” proclamation is somehow meaningful to indigenous peoples should also be considered offensive. Indigenous peoples have their own rights based on prior occupation. There is nothing that English Monarchy can do or say to add or subtract from that legal concept. The Royal Proclamation of 1763 did not create indigenous legal rights. Indigenous peoples should not look to the English Monarch for validation in any way. To be even more blunt, I find anything with the words “Royal” in it to be childish; the English Monarch is not the “great white mother” and indigenous peoples are not the children of the English Monarch. A call for a Royal Proclamation puts in my mind the whole “great white mother/children” vocabulary. By the way: the single biggest colonialist in Canadian history has always been the English Monarch, not Cornwallis, not John A Macdonald, not Hector Langevin. The English Monarch was never some benevolent figure who had the interests of the indigenous peoples at heart.

    In the 21st century (and really since the end of WWII and perhaps earlier), the English Monarchy as a whole is nothing more than a English tourism gimmick. Maybe once a Royal Proclamation is written it can be copied onto bone china and sold as souvenir plates? Who would own the copyright and get the revenues? Not indigenous peoples, that is for sure. Maybe some indigenous Canadians will be invited to Buckingham Palace to celebrate a new Royal Proclamation! Wouldn’t that be a wonderful validation of indigenous peoples? If the English Monarch says we deserve respect, it must be so!

    What would be the legal effect of any Royal Proclamation? In my opinion, it would be zero. A statute enacted by democratically elected Canadians would be able to create legally enforceable rights for indigenous peoples in Canada. What legal effect would a Royal Proclamation have? Why waste time with a useless piece of paper that validates the doctrine of discovery instead of working on actual legislation?

    There is current legislation (2016) on reconciliation in Manitoba. That statute is currently before the courts. The Manitoba Metis Federation is arguing that the statute must have some legally binding and enforceable purposes and effects. The government of Manitoba is arguing that it does not. Are you teaching the Manitoba reconciliation statute and current court case in your law class? Are you drawing a comparison between the legal effect of the Manitoba reconciliation statute and a potential Royal Proclamation?

    There is another Call to Action which expressly keeps the oath of allegiance to the Queen in the oath that we force new citizens to take. Would we force indigenous peoples to swear an oath of allegiance to the Queen? Why or why not? If we wouldn’t (and we don’t) because we respect their inherent rights as original occupants and the absurdity of expecting them to be allegiant to the Queen who took away their inherent rights, then why would it be OK to force new Canadians to swear an oath of allegiance to the Queen? Doesn’t that divide new citizens against indigenous peoples? Have a look at my paper on that Call to Action – which says a lot about doctrine of discovery and about Canada’s incremental separation from England’s control over Canada. McMahon, Thomas, Reconcile this: Canada’s Oath to the Queen, the Doctrine of Discovery, Indigenous Peoples, New Canadians and Freedom of Expression (March 6, 2017). Available at SSRN: https://ssrn.com/abstract=2886896

    Yes, I would like to see an indigenous person as the head of state in Canada; something which is illegal today because it is prohibited by the English Act of Settlement of 1701 and by the Canadian Constitution; which still says that the purpose of Canada is to serve the British empire and which in various ways declares that only England’s monarch can be the Canadian head of state. Would a new Royal Proclamation bring us closer to the day when an indigenous person is head of state in Canada? No. The Act of Settlement requires Canada’s head of state to be the next-in-line Protestant descendant of Sophia of Hanover. So not only does the Act of Settlement prohibit indigenous persons from being Canada’s head of state, it also places the Protestant religion as the favoured religion – implicitly disrespecting all others, including indigenous spirituality (but we already knew that, thanks to Indian Residential Schools).

    Does the call for a Royal Proclamation put indigenous peoples in the odd position of defending the doctrine of discovery against non-indigenous Canadians who are happy to leave as much of it behind as possible? Please indigenous peoples in Canada, do not foist the English Monarch on me!

    Hoping the above adds some perspectives to your classroom discussions that are perhaps somewhat fresh.

    Sincerely,

    Tom McMahon

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    1. Thank you very much for taking the time to offer your insights. There are so many questions here that I will continue to think about. I must say that the image of the souvenir plate is one that will stick with me as I think about how to do this work in future. Thanks again.

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