Battle Royal

by David Johnson

  First Nations, Acadia, and the British Crown: Mixed Legacies

  Just as France was developing her colonies in New France during the seventeenth and eighteenth centuries, so too was England establishing her colonial foothold in North America. By the mid–eighteenth century, Britain possessed Thirteen Colonies on the North American mainland, all with strong economies, settled and growing populations, and systems of local government whereby British-appointed governors exercised power in consultation with popularly elected legislative assemblies. In 1713, with the signing of the Treaty of Utrecht, Britain gained possession of a fourteenth colony — the formerly French colony of Acadie (now southern New Brunswick and mainland Nova Scotia). The British renamed this colony Nova Scotia, and her early history was soon marked by events that would echo down the centuries.

  Having claimed control of Nova Scotia, the British now found themselves in possession for the first time of a territory in which they comprised a small minority. In Nova Scotia, the white population numbered around two thousand French-speaking and Roman Catholic Acadians, who vastly exceeded the tiny British population, composed largely of military personnel. This colony also existed on the land of the Mi’kmaq First Nation, whose people had never ceded any of their territory to either French or English colonizers. Despite official attempts by the British government to encourage English-speaking Protestant settlers to move to Nova Scotia, few did, leaving British governors there to oversee an unruly flock. Their initial concern was that the great majority of Acadians declined to swear allegiance to a British Protestant king. In 1717 a new governor, Richard Philipps, once again ordered all Acadians to either swear allegiance to the Crown or face deportation within four months. Acadian leaders simply told their people to ignore the governor’s demand. With the deadline passed and no capacity to enforce its draconian penalty, Philipps could only write to his superiors in London asking for more troops. He was advised that since “Acadians will never become good subjects of His Majesty,” he should work to have them “removed” at such a time as appropriate means and circumstances existed.[3]

  The appropriate means and circumstances evolved at a snail’s pace since the British found themselves embroiled in skirmishes with First Nations warriors defending their lands from foreign conquest. Despite the bloodshed, or as a consequence of it, in 1726 the first of a number of historic Peace and Friendship treaties were signed between representatives of the British Crown and the Maliseet, Passamaquoddy, and Mi’kmaq First Nations. These treaties, including ones ratified in 1728, 1752, and 1760, called for the cessation of hostilities, the encouragement of peaceful relations between the British and First Nations peoples, and the recognition of the rights of First Nations peoples to practise their traditional pursuits of hunting, fishing, farming, to the use of their lands, and “other their Lawfull occasions.”[4] Of course, the treaties were subject to First Nations peoples recognizing British sovereignty over these colonies. Unlike later treaties signed by British and Canadian governments and First Nations leaders, these Peace and Friendship treaties never involved any surrender on the part of First Nations of their rights to land or resources.

  Despite the rights the treaties appeared to secure for the indigenous peoples, the British perceived them differently. Indeed, both sides brought differing cultural assumptions and political expectations to the negotiations. While to the Mi’kmaq, the treaties represented British recognition of the Mi’kmaq First Nation, as well as British respect for the rights of Mi’kmaq people to the traditional use of their lands and resources, to the British, the treaties represented Mi’kmaq acceptance of British sovereignty over Nova Scotia. They were also a means of securing peace with the natives, thereby enabling greater British colonization. The treaties dictated that the Mi’kmaq would live in peace with the British and would recognize and obey their rule in Nova Scotia — a coup for the British — but attached to this acknowledgement of reality was no implication that Mi’kmaq lands were to be legally transferred to the British Crown.

  From the 1720s to the 1750s, these Peace and Friendship treaties provided a modicum of stability between the Mi’kmaq and the British. Over the same time period, however, tensions were reaching a climax between the French and the British in North America, with reverberations felt by the Mi’kmaq and the Acadians, for whom the consequences were terrible. All through these decades, the British government insisted that Acadians in Nova Scotia swear an unconditional oath of allegiance to the British Crown or face deportation.

  Fuelling this drive for vows of unambiguous allegiance to the British Crown was an initiative by the government in London to make the colony of Nova Scotia a British bastion. It was to have a predominantly British, English-speaking, and Protestant population, and it was to boast military bases to counter the French presence in Louisbourg, Cape Breton. This project of muscular anglicization and militarization of Nova Scotia was inaugurated in 1749. In that year a new governor, Edward Cornwallis, brought some 2,500 settlers to Chedabucto Bay, where he founded the settlement of Halifax, soon to be one of the Royal Navy’s pre-eminent installations in the western Atlantic, a direct threat to Louisbourg, and the capital of the colony. The growing British presence in Nova Scotia once again led to fighting between the Mi’kmaq and the British settlers, despite the existence of Peace and Friendship treaties. The fighting intensified as the British took exclusive control of more and more Mi’kmaq land in central Nova Scotia; it was this bloodshed that led Cornwallis to issue an edict of historic notoriety. On October 2, 1749, in an effort to crush Mi’kmaq resistance to British settlement, he issued a proclamation commanding all British subjects “to Annoy, distress, take or destroy the Savages commonly called Mic-macks, wherever they be found.” To encourage compliance with his wishes, the governor offered a bounty of ten guineas to anyone providing evidence of a “savage taken or his scalp.”[5] This proclamation is remembered to this day by Mi’kmaq peoples as a testament to the British Crown’s racist brutality in dealing with their ancestors.

  Bloodthirsty as it was, Cornwallis’s approach to war was indecisive. The two sides were quite evenly matched, and in 1752 Cornwallis’s successor as governor was successful in signing a new Peace and Friendship treaty between the British Crown and some Mi’kmaq leaders. But this treaty failed to stop the more general conflict that was raging across Nova Scotia, one that would soon engulf the Acadian population.

  The final war between the French and the British for imperial domination in North American began in 1754. The following year witnessed the resumption of conflict in Nova Scotia between British forces based in Halifax and French troops from Louisbourg. Following initial British victories and in command of almost 2,500 British troops, the latest British governor, Charles Lawrence, saw his opportunity to deal with the Acadian population once and for all. Believing that the Acadians were a threat to British rule in Nova Scotia, he insisted that all Acadians submit to a new oath of allegiance to the British Crown. This oath obligated its taker to fight against the king’s enemies if so ordered. Once again, Acadian leaders refused to submit and were consequently imprisoned. The summer and fall of 1755 marked the beginning of what Acadians have long referred to as the Grand Dérangement, the expulsion of the Acadian people from Acadie. Over a span of three years, the forces of the British Crown, acting on direct orders from the governor and with the approval of the British government in London, conducted what, in modern parlance, would be referred to as a policy of “ethnic cleansing,” a “crime against humanity,” and a clear violation of human rights. Some ten thousand persons were forced into exile (many ending up in Louisiana, giving birth to “Cajun” culture), having witnessed their farms and livestock plundered and made forfeit to the king, and their homes and churches razed by fire. Following these events, the British asserted total domination over Nova Scotia. But the Grand Dérangement has lived on in Acadian memory, a symbol of the cruelty of the British Crown, a testament to the spirit of survival of the Acadian p
eople (many of whom eventually returned to their beloved Acadie to re-establish their distinct society), and a factor leading many Acadians to this day to profess republican values.

  By 1758 the colony of Nova Scotia possessed a majority British and Protestant population and one that was growing through increased immigration from Great Britain. These new immigrants let it be known that they expected to find in Nova Scotia political institutions similar to those in other British colonies, namely legislative assemblies with easily accessible voting rights based on modest property and land ownership qualifications. In 1758, Governor Lawrence, acting with the approval of the British government, assented to these wishes and authorized the establishment of a colonial legislative assembly in the colony. The Nova Scotia legislative assembly of today thus stands as the oldest one of its kind in Canada.

  Also in 1758, the Fortress of Louisbourg fell to the British. With the loss of Louisbourg, the fighting between the British and the Mi’kmaq First Nation came to a close, with a final Peace and Friendship treaty signed between these parties in 1760. This last treaty obligated the Mi’kmaq people to recognize the sovereignty of the British Crown over all of Nova Scotia in return for Mi’kmaq people being granted the right to engage in the traditional use of their lands and waters. As with earlier treaties, this one made no mention of ceding, by law, any Mi’kmaq lands or resources to the British Crown; British officials assumed, however, that the recognition of British sovereignty over Nova Scotia was recognition of British ownership to all lands and resources in the colony.[6]

  The Royal Proclamation of 1763

  The fighting between the French and the British for control of North America was finally resolved with British victories at Quebec City in 1759 and Montreal in 1760. The 1763 Treaty of Paris that brought the Seven Years’ War to a close was the document in which France officially ceded New France to the British Crown. The British now had to decide what to do with their newest colony, which spanned almost half the continent and boasted a population of some sixty thousand French-speaking Roman Catholics and numerous First Nations.

  No sooner had the war with France ended than fighting erupted in the upper Mississippi and Ohio River basins as First Nations warriors, led by the Odawa chief Pontiac, rebelled against the imposition of British rule. Seeking the return of the French, Pontiac ordered his troops to wipe the “dogs dressed in red” from “the face of the earth.” Approximately two thousand British settlers were killed in this fighting. In seeking a way to blunt the First Nations’ onslaught, the British governor Jeffrey Amherst wrote to a number of his commanders on the ground, suggesting that they destroy the aboriginal threat through the use of what we would now refer to as biological warfare. “You will do well,” instructed Amherst, “to try to inoculate the Indians (with smallpox) by means of blankets, as well as to try every other method that can serve to extirpate this execrable race.”[7] At least one officer, at Fort Pitt (now Pittsburgh), obeyed his orders.[8]

  Pontiac’s failure to capture Fort Detroit, along with the arrival of the harvest season and growing illnesses within indigenous communities, ended this uprising. The intensity of the fighting, however, confirmed the British government in their belief that much of the territory of former New France to the west of the Appalachian Mountains should be preserved as “Indian Territory” from which the Montreal fur trade could continue to thrive. With this commercial venture in mind, as well as the need to organize their hold on power in Quebec, the British government prepared for a new world order in its New World.

  On October 7, 1763, George III issued the Royal Proclamation of 1763 with which this chapter began. It set out certain principles and policy objectives that would govern the application of British imperial power in the North American lands acquired from France. While much of this proclamation dealt with how the British would administer the new colony of Quebec and its French-Canadian population, the parts of the proclamation that have the greatest constitutional legacy in Canada to this day are those addressing the relationship between the British government and the First Nations existing within the territory of the now defunct New France.

  At the outset, the proclamation rearranged borders. Whereas the boundary of New France had stretched from Acadia through Quebec and down to New Orleans, the borders of the British colony of Quebec were now confined to the traditional areas of French Canadian settlement along the St. Lawrence River. All the lands around the Great Lakes and to the west of the Appalachian Mountains were reserved as “Indian Territory.” The proclamation recognized the pre-existence of native nations within this territory, “the several nations or tribes of Indians with whom we are connected and who live under our protection,” stipulating that these nations possessed legal ownership of their lands. The proclamation also asserted that since these native nations existed under the protection of the British Crown, all trade and commercial relationships — including the sale of land — between these nations and British subjects could only be undertaken by Crown officials. The proclamation specifically prohibited private British individuals from either purchasing or taking possession of native land; it also stated that any individuals who had acquired land through such means were in illegal occupation of that land. The proclam­ation outlined that the only legal means by which the British Crown could acquire native land for the purposes of British settlement and economic development was through the signing of treaties freely entered into between officials of the Crown and leaders of First Nations.[9]

  These terms were remarkable provisions at the time, having the force of British law and clearly outlining the political and economic relationships that were to exist between all British subjects in North America and the members of First Nations. The provisions also outraged most British subjects living in the thirteen “American” colonies who aspired to expand westward and lusted after Indian lands. In fact, this proclamation was one of the grievances that led to the outbreak of the American Revolution in 1775. Despite the lofty ideals of the Royal Proclamation of 1763, the British government soon found itself unable to enforce the Proclamation’s rules and regulations during the 1760s and 1770s. Moreover, with the outcome of the American Revolution in 1783, the legal effect of the proclamation seemed null and void. While this was certainly true for the new United States, it was not the case for Britain or the future Canada. The Royal Proclamation of 1763 was a statement of British law respecting the legal relationships that were to exist between First Nations and the British Crown. Key to these relationships was that the British government recognized First Nations as nations, possessing legal ownership of their lands (what would come to be known as “aboriginal title”), and that the only legal means by which such lands could be ceded to the British Crown was through the act of treaty-making. This proclamation was never rescinded by any future British government, and its legal provisions were inherited by the Canadian federal government through Confederation in 1867. While many of the terms and provisions of the proclamation were honoured more in the breach than the observance in the nineteenth century, the proclamation remains of vital importance to First Nations peoples all across Canada. It shows that from the earliest days of contact between their ancestors and British officials, the British Crown had recognized their people as nations, possessing independent governments, owning their land, and engaging in international relations with the British government. The Royal Proclamation of 1763 is rightfully viewed by many First Nations peoples to this day as their “Bill of Rights,” rooted in the covenant chain wampum belts of the Treaty of Niagara, 1764.

  However much British and, later, Canadian governments came to ignore the terms of the Royal Proclamation of 1763 when it suited them or failed to uphold the treaty responsibilities assumed by the Crown toward First Nations peoples, it is important for all Canadians to recognize that the 1763 royal proclamation persists in Canadian constitutional law. Section 25 of the Canadian Charter of Rights and Freedoms reads, in part:

  The guarante
e in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

  (a)any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763.[10]

  In constitutional discussions leading to the establishment of this Charter in 1982, indigenous leaders were adamant that the 1763 royal proclamation had to be enshrined in modern Canadian law as a recognition of the collective land rights held by First Nations, that treaty-making was and is the key mode of relationship between First Nations and the government of Canada with respect to these rights, and that the honour of the Crown was and is involved in upholding treaty rights and in maintaining this special nation-to-nation relationship. In a series of decisions since 1982 respecting aboriginal title and treaty rights’ claims before the courts, the Supreme Court of Canada has upheld all of these concepts as valid principles of Canadian constitutional law with respect to First Nations, with the 1763 royal proclamation being the original source of these principles and obligations.

  Quebec Under the British Crown

  The Royal Proclamation of 1763 also addressed how the British were to deal with French Canada. Within the new and much smaller boundaries of Quebec, the British government expected to see this new colony of sixty thousand French Canadians receive an influx of British Protestant settlers from the thirteen British colonies to the south. Quebec was to have a system of government and laws consistent with those found in all other British colonies. A governor, appointed by the British government, would act in the name of the king, and he would appoint an executive council to assist and support him. He would also be the head of a popularly elected legislative council that would represent the interests of commoners. English common law, both criminal and civil, would rule in the courts, with British judges appointed by the governor. Consistent with English law at the time, Roman Catholics were discriminated against in the political realm. They could not vote, and they were barred from being elected to any future legislative assembly, from holding any public office, from practising law, and from sitting on a jury. They were, however, free to practise their religion — but only “as far as the laws of Great Britain permit.”[11]