March 16, 2015

The Royal Proclamation of 1763, the Canadian Constitution, and Aboriginal Rights

Mark Walters, Queen's University Faculty of Law, has published The Aboriginal Charter of Rights: The Royal Proclamation of 1763 and the Constitution of Canada as Queen's University Legal Research Paper No. 2015-003. Here is the abstract.

Since the nineteenth century, the Royal Proclamation of 1763 has been described as the “Charter” of rights for Aboriginal peoples in Canada. In 1982, the Proclamation was explicitly mentioned in the Canadian Charter of Rights and Freedoms. Yet the legal and constitutional status of the Proclamation remains something of a puzzle in Canadian law today. It is celebrated politically as a landmark instrument in the recognition of Aboriginal rights, and yet judges have read the Proclamation narrowly in terms of the rights it protects and the areas within Canada to which it applies. The author considers the evolving legal status of this historic document within Canadian constitutional law, concluding that as a source of positive law it is more or less a dead letter, but as a source of unwritten legal principle that continues to shape the Crown-Aboriginal relationship in Canada, the Proclamation is still very much alive over 250 years after it was issued. 

 Download the paper from SSRN at the link.

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