ALAIN BEAULIEU
‘‘An equitable right to be compensated’’:
The Dispossession of the Aboriginal
Peoples of Quebec and the Emergence of
a New Legal Rationale (1760–1860)
Abstract: At the conquest of New France, the British had already built a long tradition of purchasing Aboriginal land. This policy, made official in the Royal Proclamation of 1763, was implemented in an extensive portion of the Canadian territory,
but not in the Saint Lawrence Valley, heart of the former French empire in America,
and what is now the province of Quebec. The British, followed by the Canadian
government, adopted a policy of unilateral land appropriation in that area, dispossessing the Aboriginals without reliance on a treaty system. This particularity of the
Indian land policy in Quebec has given rise to divergent interpretations that rest on
the same implicit premise that a structuring legal framework existed, which, when
reconstituted, gives meaning to history, either by legitimizing the unilateral dispossession process or by stigmatizing it. This article attempts to locate the process
of dispossessing Aboriginal land outside the normative framework imposed by the
law. The objective is not to identify a standard to explain why the British did not
conclude treaties, but rather to follow a process of legal standardization, in which
colonial practice is inscribed, through trial and error, detours, shifts in meaning,
and improvisations into a legitimizing framework.
Keywords: Aboriginal land, Royal Proclamation, land-cession treaties, land
dispossession, Quebec, Lower Canada
*
This article was first presented in a Legal History Workshop organized by the
Department of History and the Law School, Stanford University, March 2011.
I am especially grateful to Tamar Herzog for her invitation to present my
research in this context and for her remarks on my paper. My thanks also go
to friends and colleagues who read and commented on an early version of this
article: Denys Delâge, Magda Fahrni, Jean-Philippe Garneau, Maxime Gohier,
Gilles Havard, James R. Miller, Michel Morin, Daniel Rueck, and David
Schulze. I am also indebted to many students who, during the last years,
collected most of the documents quoted in this article. The work of Jean-Pierre
Sawaya and André Caissy was particularly helpful in the first stage of this
research. Finally, I want to thank Katherine Akerley for her help in the translation of this article.
The Canadian Historical Review 94, 1, March 2013
6 University of Toronto Press
doi: 10.3138/chr.1060
2 The Canadian Historical Review
Résumé : Au moment de la conquête de la Nouvelle-France, les Britanniques avaient
déjà une longue tradition d’achat de terres autochtones. Cette politique, officialisée par
la Proclamation royale de 1763, fut appliquée sur une très grande portion du territoire
canadien, mais pas dans la vallée du Saint-Laurent, cœur de l’ancien empire français
en Amérique, ni dans l’actuelle province de Québec. Les Britanniques et le gouvernement
canadien à leur suite ont adopté une politique d’appropriation territoriale unilatérale
dans cette région, dépossédant les Autochtones sans s’appuyer sur quelque système de
traités. Cette particularité de la politique relative aux terres indiennes au Québec a
donné naissance à des interprétations divergentes qui reposent sur la même prémisse
implicite voulant qu’un cadre juridique structurant ait existé, lequel, lorsque reconstitué,
donne sens au passé, soit en légitimant le processus de dépossession unilatérale, soit en le
stigmatisant. Cet article tente de situer le processus de dépossession des terres autochtones
en dehors du cadre normatif imposé par le droit. Il n’entend pas mettre à jour une norme
expliquant pourquoi les Britanniques n’ont pas conclu de traités, mais plutôt suivre un
processus de normalisation juridique dans lequel la pratique coloniale est inscrite à
coup d’essais et d’erreurs, de détours, de redéfinitions et d’improvisations dans un cadre
théorique qui lui donne une légitimité.
Mots clés : terres autochtones, Proclamation royale, traités de cession
territoriale, dépossession territoriale, Québec, Bas-Canada
When the British seized control of New France in 1760, they had
already built a long tradition of purchasing Aboriginal land.1 By the
second half of the eighteenth century, this approach had become central to British colonial thought. Made official in the Royal Proclamation of 1763, this policy was implemented in an extensive portion of
the Canadian territory. Starting in the 1780s, the British concluded
land-cession treaties with the Aboriginal people living west of the Ottawa
River, in what would become the colony of Upper Canada in 1791 (and
then the province of Ontario in 1867). In the mid-nineteenth century,
this colony’s entire territory had been covered by cession treaties,
some of which addressed only small portions of land while others
involved immense expanses. Following the Canadian Confederation,
this system was extended to encompass western Canada, where Canada
proceeded to carry out, over a few short decades, the largest operation
of Aboriginal land purchases in its history.
The policy stipulated by the royal proclamation, however, was not
applied to the Saint Lawrence Valley or to what is now the province of
Quebec. Concerning these lands, the British, followed by the Canadian
government, adopted a policy of unilateral appropriation, dispossess1
For an overview of British policy related to Indigenous lands, see Stuart Banner,
How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge:
Harvard University Press, 2005), 1–111.
The Dispossession of the Aboriginal Peoples of Quebec 3
ing the Aboriginal peoples without reliance on a treaty system. Long
overlooked by researchers, this particularity in the British land policy
has been garnering increased attention since the 1970s as a direct
consequence of the growing number of land claims by Quebec First
Nations. For some, the explanation lies in the French colonial past:
since the French never recognized the specific land rights of Aboriginal peoples, such rights could not have survived the French regime.2
Others have attempted to establish that the French never denied the
existence of Aboriginal land rights, but were merely deterred from
formally recognizing them in treaties by situational factors.3 The Royal
Proclamation of 1763 has also been invoked both by researchers defending the thesis that the British were not required to make land-cession
treaties in Quebec and by those supporting the contrary view.4
Although diametrically opposed, these analyses are located within
the same normative framework, namely, that of the law. They rest on
the same implicit premise that there existed a structuring legal framework, which, when reconstituted, gives meaning to history, either by
legitimizing the unilateral dispossession process or by stigmatizing
it.5 The aim of this article is not to identify a standard to explain why
the British did not conclude treaties – in short, to decode the past
2
3
4
5
This interpretation was the basis of the legal positions defended by Quebec
and Canadian government prosecutors until the early 1990s. The Supreme
Court of Canada rejected this interpretation in 1995. See Renée Dupuis, Tribus,
peuples et nations. Les nouveaux enjeux des revendications autochtones au Canada
(Montréal: Boréal, 1997), 59–63.
See, for example, W.J. Eccles, ‘‘Sovereignty-Association, 1500–1783,’’ Canadian
Historical Review 65, no. 4 (1984): 475–510.
For an overview of different points of view on this question, see Brian Slattery,
The Land Rights of Indigenous Canadian Peoples as Affected by the Crown’s Acquisition of the Territories (PhD diss., Oxford University, 1979); Jacqueline Beaulieu,
Christiane Cantin, and Maurice Ratelle, ‘‘La Proclamation royale de 1763 : le
droit refait l’histoire,’’ La revue du Barreau 49, no. 3 (1989): 317–40; Paul Dionne, ‘‘Les postulats de la Commission Dorion et le titre aborigène au Québec:
vingt ans après,’’ La revue du Barreau 51, no. 1 (1991): 128–71; Richard Boivin,
‘‘Pour en finir avec la Proclamation royale: la décision Côté,’’ Revue générale de
droit 25, no. 1 (1994): 136–42; David Schulze, ‘‘L’application de la Proclamation
royale de 1763 dans les frontières originales de la province de Québec: la décision du Conseil privé dans l’affaire Allsopp,’’ Revue juridique Thémis 31 (1997):
511–74; Michel Morin, L’usurpation de la souveraineté autochtone. Les peuples de la
Nouvelle-France et des colonies anglaises de l’Amérique du Nord (Montréal: Boréal,
1997), 133–61.
Faithful reflections of the antagonistic logic with which the courts examine
these issues, these divergent interpretations are also apt expressions of the
increasing influence of law on the writing of Native history. For some recent
critical reflections on this influence, see Ann Curthoys, Ann Genovese, and
4 The Canadian Historical Review
according to law – but rather to follow legal standardization in which
colonial practice is inscribed through trial and error, detours, shifts in
meaning, and improvisations, into a legitimizing framework. In this
analysis of British legal rationales, the law is not considered in its
causal dimension, as a leading factor that would explain (by creating
obligations) the past or enable the identification of how things should
have taken place. Instead, it is examined in its instrumental role, as
a flexible tool of colonialism, which lends itself to the mutations
required to justify the dispossession process.
By locating the analysis outside the normative framework of law,
the line of questioning shifts from why (which assumed the existence
of a structuring standard that would have set guidelines for actions
and decisions) to how (toward an analysis of the mechanisms by
which a new order and the dispossession process were legitimized).
The objective is not to deny that the law influenced the choices and
directions taken by British policy: the British colonizers did arrive
with a priori legal assumptions and conceptions that shaped their
analyses. Sometimes a standard existed before a given decision was
made and directly influenced it, but it also happened that a standard
was developed after the fact, to justify a decision or practice. In both
cases, however, norms served as instruments to legitimize implementing a new colonial order.
The idea underlying this article is that the refusal to conclude land
treaties with the Aboriginal peoples of Quebec was not the result of a
pre-existing policy, but the outcome of a succession of tinkerings, in
which elements of the French colonial past and British tradition were
embedded. The British policy concerning Aboriginal lands in Quebec
was thereby set out and implemented in a series of specific contexts,
which gave rise to a new legal imaginary. The amalgamation stemmed
more from fiction than from history, but it did provide the basis of a
system that emerged in the 1830s, in which the creation of reserves
appeared as a means of compensating the Aboriginal peoples for the
loss of their lands.6
6
Alexander Reilly, Rights and Redemption: History, Law and Indigenous People
(Sydney: University of New South Wales Press, 2008); Arthur J. Ray, Telling It
to the Judge: Taking Native History to Court (Montreal and Kingston: McGillQueen’s University Press, 2011).
The situation in Quebec was not uncommon in the British Empire. A similar
policy of unilateral appropriation of Aboriginal lands was also in effect in the
Maritime provinces, British Columbia, and Australia. These cases clearly show
that the British approaches to the land rights of the Aboriginal peoples were
more complex than is usually thought, the land-cessions treaties being only one
The Dispossession of the Aboriginal Peoples of Quebec 5
The Royal Proclamation of 1763 holds a special place in the history
of Aboriginal land dispossession in Canada. Published in the context
of the Pontiac’s War,7 the proclamation established the limits of three
new colonies (Quebec and the two Floridas) and also created an expansive territory, temporarily reserved ‘‘for the use of the . . . Indians.’’ This
‘‘Indian country’’ included the land beyond the source of the rivers that
flowed to the Atlantic Ocean and the land outside the new colonies and
Rupert’s Land (see map 1). The proclamation also stipulated that governors could not grant land within the boundaries of their respective
colonies, which had not yet been ceded by the Aboriginal peoples.
Thenceforth, the ‘‘Lands reserved to the . . . Indians’’ could be purchased in the name of the British Crown only ‘‘at some public Meeting or Assembly’’ of the Aboriginal people in question.
The proclamation resulted in the implementation of a new legal
logic throughout the former territory of New France, a logic that
formally recognized Native land rights. In Quebec, the document
quickly acquired significant symbolic value. Aboriginal people living
in the Saint Lawrence River Valley who had received copies of it regularly invoked its premise to support their land claims at the end of the
eighteenth century and during the nineteenth century.8 Did that mean
that the provisions concerning Aboriginals in the royal proclamation
7
8
method among others to legitimize dispossession. However, these cases should
not be considered in a chronological perspective with an aim to locating explanatory precedents. It is clear, for example, that for the period studied here, the case
of Nova Scotia does not occur as an example that justifies the decisions made in
Quebec, just as Quebec and the Maritimes are not references that legitimate
or explain the decisions made in British Columbia. The same method of land
dispossession can be based on different factors and legal justifications, without
it being necessary to identify a precedent that serves as an explanation, except
when the documentation provides support for it, which is not the case in this
situation. For the Maritime provinces, see L.F.S. Upton, Micmacs and Colonists:
Indian–White Relations in the Maritimes, 1713–1867 (Vancouver: University of
British Columbia Press, 1979), 37; Olive P. Dickason, ‘‘Amerindians between
French and English in Nova Scotia, 1713–1763,’’ in Sweet Promises: A Reader on
Indian–White Relations in Canada, ed. James R. Miller (Toronto: University of
Toronto Press, 1991), 48. For British Columbia, see Paul Tennant, Aboriginal
Peoples and Politics: The Indian Land Question in British Columbia, 1849–1989
(Vancouver: University of British Columbia Press, 1990). For Australia, see
Stuart Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from
Australia to Alaska (Cambridge: Harvard University Press, 2007).
See Gregory E. Dowd, War under Heaven: Pontiac, the Indian Nations, & the
British Empire (Baltimore: Johns Hopkins University Press, 2002).
For example, see Denys Delâge and Jean-Pierre Sawaya, Les traités des Sept-Feux
avec les Britanniques. Droits et pièges d’un héritage colonial au Québec (Québec:
Septentrion, 2001).
6 The Canadian Historical Review
map 1 The Royal Proclamation of 1763
The Dispossession of the Aboriginal Peoples of Quebec 7
were applicable within the province of Quebec in 1763? The formulation of the text leaves some doubt on the subject. The passage forbidding concessions to be granted ‘‘upon any Lands whatever, which, not
having been ceded to or purchased by Us as aforesaid, are reserved to
the said Indians, or any of them’’ seems to apply only to the governors
of the former colonies and not to those in the ‘‘Province of Quebec’’ or
in the two Floridas.9
Some scholars interpreted this passage as revealing the inclination
of the British authorities to continue the French policy of not recognizing Native rights in Quebec. However, evidence of this conclusion is
very weak and in fact is practically non-existent. The historical context
provides no proof to sustain the idea that Britain intended to exclude
Quebec lands from the provisions of the royal proclamation. Rather,
the documents elucidating the development of the British policy on
this subject indicate a willingness to implement a global policy, which
would apply to all North American land in its possession.10
If the intention of the British authorities had been to exclude Quebec from the protections afforded to Aboriginal lands, it was certainly
not reflected in the instructions prepared in December 1763 for James
Murray, governor of Quebec. These instructions indeed contained
clear provisions on applying the royal proclamation.11 In the colony
of Quebec, the proclamation was invoked several times to refuse
granting land concessions. A revealing example concerns the 1766
refusal of Governor Murray to allow merchants to settle and build in
Chicoutimi, as this land was ‘‘reserved by his Maj[esty]’s Proclamation
to the savages within the Province.’’12 On two other occasions, the
British authorities, taking support from the restrictions imposed by
the royal proclamation, refused to allocate grants for lands on the
northern banks of the Restigouche River. The first was presented in
1766 by merchant Joseph Philibot, who attempted, in vain, to execute
an order from the King granting him twenty thousand acres of land
within the limits of the new colony.13 The Executive Council of Quebec
reminded him that according to the proclamation of 1763, the lands in
question belonged to the Mi’kmaq.14 In 1767, the same council rejected
9
10
11
12
13
14
Royal Proclamation, 7 Oct. 1763, in Documents Relating to the Constitutional
History of Canada, 1759–1791, eds. Adam Shortt and Arthur G. Doughty
(Ottawa: J. de L. Taché, 1918), pt I, 166–7.
Ibid., 27–155.
Ibid., see articles 60 and 62, in 199.
Schulze, ‘‘L’application de la Proclamation royale,’’ 526–7.
King’s concession to Joseph Philibot, 18 June 1766, 76977–9, vol. 157, RG1-L3L,
Library and Archives Canada (LAC).
Slattery, Land Rights, 266–7.
8 The Canadian Historical Review
a similar request from Hugh Finlay, Scottish merchant and land owner,
who was claiming lands near the mouth of the Restigouche River for
the Acadians.15
However limited, these interventions suggest that, from the perspective of colonial authorities, the policy on the protection and purchase of
Native land was applicable to 1763 Quebec. Other examples, however,
indicate that the British were not inclined to extend this reasoning to
all Aboriginal peoples in this colony. The groups affected by the abovementioned claim grants, namely the Innu (Montagnais) and Mi’kmaq,
lived outside the centres of colonization; the British therefore had no
reason to question the ancestral basis for their presence on these
lands. But this was not the case for the communities living in the
Saint Lawrence Valley. The Huron-Wendat had moved into the Quebec
area after the Iroquois’ destruction of Huronia in 1650. In the 1660s,
they were followed by the Iroquois, who settled in three villages: Kahnawake, Kanesatake, and Akwesasne. The Abenakis began migrating to
the Saint Lawrence Valley in the mid-1670s and settled on the southern
shore of the river at the beginning of the eighteenth century, in the
villages of Odanak and Wôlinak. At the end of the French Regime,
these villages were grouped into the Seven Nations confederacy, which
also included the village of Oswegatchie (see map 2).16
Familiar with the history of these communities, the British knew
that their presence was the result of relatively recent migration flows.
This influenced their legal interpretation: if these Aboriginals were
not the original occupants, they could not hope to be indemnified for
any land in that location that was opened up for colonization, even if
they used that land regularly. Their rights were limited to land granted
to them by the French beginning in the second half of the seventeenth
century. The British rapidly began to draw a distinction between Aboriginal people who, they presumed, lived on their ancestral lands, and those
who had migrated to new territories relatively recently. This idea was
apparently asserted for the first time in 1764 by William Johnson, who
wrote to Thomas Gage that the guarantees of the 1763 Royal Proclamation regarding hunting grounds did not apply to the Iroquois and
Abenakis of the Saint Lawrence Valley because they had left their traditional lands in order to settle near the French.17 Gage, who had also
15
16
17
Ibid., 267.
Jean-Pierre Sawaya, La fédération des Sept Feux de la vallée du Saint-Laurent,
xviie –xixe siècle (Sillery: Septentrion, 1998).
Johnson to Gage, 27 Jan. 1764, The Papers of Sir William Johnson (Albany:
University of the State of New York, 1925), 4:307–8.
The Dispossession of the Aboriginal Peoples of Quebec 9
map 2 The Seven Nations
10 The Canadian Historical Review
been the governor of Trois-Rivières, shared Johnson’s views,18 as Guy
Carleton would do a few years later in the context of a claim presented
by the Iroquois of Akwesasne.19
In the first years after the conquest of New France, the colonial
authorities had therefore outlined a territorial policy that incorporated
the idea that some Aboriginal peoples in the province of Quebec had
rights over their land by virtue of the royal proclamation. The French
colonial past influenced this system in an incidental way, through
the history of the migration of some Aboriginal people in the Saint
Lawrence Valley, but not as a structuring legacy that would have determined a precise policy to follow. In this first legal framework, the
concept of prior rights played a key role, as it made it possible to differentiate between two categories of rights: the rights of original land
occupants, and those of the others. For a few years, this filtering
mechanism led the British to consider that some Aboriginals living
in the Saint Lawrence Valley did not have any specific rights over their
land, aside from those that had been formally granted to them by the
French.
Contrary to what was happening in the American colonies, the implementation of the royal proclamation’s provisions caused no serious
problems within the boundaries of 1763 Quebec, where relatively limited
immigration spared most of the Aboriginal peoples’ hunting grounds
for at least two decades. The first true test of British territorial policy
came after the American War of Independence, when thousands of
American Loyalists went north to seek refuge in the province of Quebec.
As a result of the 1774 Quebec Act, the provincial boundaries had been
extended considerably and thenceforward encompassed a large portion
of the territories that had been reserved in 1763.
The Quebec Act, which abrogated the royal proclamation within
the borders of the province of Quebec, contained no provisions on
what procedures should be followed to purchase land from Aboriginal
peoples.20 In theory, the formal requirement to conclude treaties had
disappeared. In practice however, the British authorities did not expect
to change their policy on this matter. This is clearly indicated in the
instructions given to Governor Guy Carleton in 1775. Article 31, which
concerns portions of former Indian territory that were now within the
province of Quebec, instructs the governor to ensure that the limits of
18
19
20
Gage to Johnson, 6 Feb. 1764, ibid., 318.
The claim was presented in 1769. See Claus to Johnson, ibid., 7:127.
The Quebec Act, s. 4, in Shortt and Doughty, Documents, pt I, 571–2.
The Dispossession of the Aboriginal Peoples of Quebec 11
any outposts in the ‘‘interior Country’’ be well-established and that no
colonization be allowed beyond that, ‘‘seeing that such Settlements
must have the consequence to disgust the Savages’’ and ‘‘to excite
their Enmity.’’21
At any rate, the political and strategic climate did not lend itself to
making significant changes on this matter. The Treaty of Paris of 1783,
which put an end to the American War of Independence, had resulted
in a widespread movement of discontent among the Aboriginal peoples
of the interior of the continent, who could not understand how the
British could have ceded their land to the Americans.22 At one point,
the British even feared that their allies would turn against them, and
they launched an extensive diplomatic offensive in an attempt to
decrease tensions. Caution, particularly in territorial matters, was called
for to prevent the alliance from breaking up. This was particularly the
case west of the Ottawa River, where a large group of Loyalists had
taken refuge. To ensure that the establishment of their settlement in
this sector would go smoothly, the British rapidly concluded a few
land-cession treaties, notably with the Mississauga nation.23
Colonial authorities apparently did not question the length of time
that the Mississaugas had been in the sector; they simply assumed
that they were the original inhabitants of the land and benefited from
21
22
23
Instructions to Governor Carleton, 3 Jan. 1775, in Report concerning Canadian
Archives for the Year 1904 (Ottawa: S.B. Dawson, 1905), 237. A ‘‘Plan for Imperial
Control of Indian Affairs’’ was attached to the instructions to the governor. This
plan, dated 10 July 1764, had been drafted by the Lords of the Board of Trade in the
months following the adoption of the royal proclamation. It contained numerous
provisions concerning trade with Indigenous people, and three articles (nos 41,
42, and 43) spelling out the procedures to follow when buying their lands.
These articles were clearly a reworking of the provisions of the royal proclamation. The plan was also attached to instructions to Haldimand in 1778 and to
those of Carleton, who had become Lord Dorchester, in 1786. See Bruce Clark,
Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government
in Canada (Montreal and Kingston: McGill-Queen’s University Press, 1990), 79.
On the reactions of the Indians to the Treaty of 1783, see Alan Taylor, The
Divided Ground: Indians, Settlers, and the Northern Borderland of the American
Revolution (New York: Alfred A. Knopf, 2006), 111–13.
On the land-cessions treaties west of the Ottawa River, in what would become
the colony of Upper Canada in 1791 (and then the province of Ontario in 1867),
see Robert J. Surtees, ‘‘Canadian Indian Treaties,’’ in Handbook of North American
Indians, vol. 4, History of Indian–White Relations, ed. William C. Sturtevant
(Washington: Smithsonian Institution, 1988), 202–7; Jim R. Miller, Compact,
Contract, Covenant: Aboriginal Treaty Making in Canada (Toronto: University of
Toronto Press, 2009), 66–122.
12 The Canadian Historical Review
the rights associated with ancestral occupation. But the British were
not ready to follow this way of reasoning for every Aboriginal nation,
as was borne out by their reaction to the protests of the Akwesasne
Iroquois, who opposed the surveying of their land for the benefit of
Loyalists. In support of their territorial claims, this time, the Iroquois
invoked a deed given to them by the French that had been lost in a
church fire.24 While he refused to admit the legitimacy of the Iroquois
claim, Governor Haldimand, ‘‘being desirous to avoid all difficulties
with the Indians,’’ chose a conciliatory course of action. In his mind,
the deed being invoked by the Iroquois did not exist, but they had considered themselves ‘‘the Proprietors of that Land’’ for so many years
that it was wiser to offer to compensate them than to insist ‘‘upon the
right of the Crown.’’25 The Iroquois, however, refused to give up their
land in exchange for financial compensation; instead, they insisted
upon preserving a specific tract of land. Haldimand would have preferred a different solution, but given the political and military tensions
and the upcoming conference between Aboriginal peoples and the
United States Congress, he reluctantly agreed to the Iroquois request,
expressing his frustration in a letter to the British negotiator: ‘‘They
must be made fully to understand and consider this as an Indulgence
during the King’s pleasure, no part of it ever having been granted to
them.’’26
The pragmatic decision of Haldimand was a good illustration of
the problem arising from the implementation of a rigid legal rationale
in a context where the British still needed the military help of the
Aboriginal peoples. By complying with the Iroquois request, the governor
avoided creating strong dissatisfaction among useful allies. But his
decision would also have an enduring (and involuntary) consequence.
Paradoxically, the apparent recognition of the Iroquois’ rights to the
land would indeed become, in the nineteenth century, the basis for a
rationale legitimizing dispossession without treaties.
This new legal logic would, however, take a few decades to fully
emerge. Meanwhile, looking for a new way to justify their refusal to
24
25
26
Johnson to Haldimand, 11 Mar. 1784, 260, add. mss 21775, Haldimand Papers,
British Museum. This strategy suggests that they were now familiar with the
distinction, made by the British, between those who could claim the rights of
‘‘original inhabitants’’ and those who could not.
Haldimand to Campbell, 22 Mar. 1784, 1412, vol. 3, reel C-10997, RG10, LAC.
Haldimand to Campbell, 15 Apr. 1784, 154–5, vol. 14, reel C-1223, RG10, LAC;
see also Haldimand to John Johnson, 15 Apr. 1784, 150–1, reel C-1223, RG10,
LAC.
The Dispossession of the Aboriginal Peoples of Quebec 13
conclude land-cession treaties in the province of Quebec, the British
would temporarily borrow certain aspects of the French legal conception. This borrowing was incited by a claim raised in the Gaspé Peninsula, as the Chaleur Bay had become an area of refuge for hundreds of
Loyalists. As we have seen, in the 1760s the colonial authorities had
considered this region, or at least the Restigouche River area, to be
Mi’kmaq territory (or land protected by the royal proclamation) and
had refused to grant some land concessions. In the 1775 instructions
to Governor Carleton, London had apparently confirmed this impression by associating the Gaspé region with the ‘‘Interior Country’’ in
which the progression of settlements should be closely monitored to
avoid vexing the Aboriginal people.27
In the ensuing years, the colonial authorities showed some willingness to protect the rights of the Mi’kmaq in this area. For example, in
1780, Governor Haldimand wrote to Governor Nicholas Cox that the
hunting privileges of the Mi’kmaq along the Restigouche River should
be protected, so long as this did not interfere with commerce.28 Two
years later, Haldimand repeated that he did not want the Mi’kmaq to
be treated unfairly, and he asked that steps be taken to prevent their
land from being encroached upon.29 In 1784, Nicholas Cox recommended drawing a boundary between ‘‘the hunting ground and fisheries
belonging to the Savages’’ and the land belonging to colonists.30 In an
ordinance published the same year, he established that the colonists
should pay one dollar to the Mi’kmaq to obtain the right to cut hay in
the grasslands and marshes of the Restigouche River.31 Reiterating
the fact that the King wanted to protect the Indians throughout the
province, Cox also confirmed that the Mi’kmaq had exclusive hunting
and fishing rights along the Restigouche River.32
The political climate here, as in the area west of the Ottawa River,
seemed to lend itself to the drawing up of a treaty with the Mi’kmaq,
and in 1786, Nicholas Cox was given the responsibility, along with
surveyor John Collins, of negotiating an arrangement with them.
27
28
29
30
31
32
Report concerning Canadian Archives for the Year 1904, 237. At that time, the
expression ‘‘Interior Country’’ generally designated the region situated west of
the Ottawa River, but was also applied less frequently to other regions not yet
opened to colonization.
Haldimand to Cox, 16 Aug. 1780, 70, mss 21862, Haldimand Papers.
Haldimand to O’Hara, 27 May 1783, 100v, mss 21862, Haldimand Papers.
Cox to Haldimand, 16 Aug. 1784, 133, mss 21862, Haldimand Papers.
Cox to Haldimand, 7 Aug. 1784, 132, mss 21862, Haldimand Papers.
Ibid.
14 The Canadian Historical Review
Negotiations took place over three days (29 June–1 July) in Listuguj
and resulted in an agreement-in-principle. The Mi’kmaq would give
up part of their land but preserve the land along the Restigouche River
as well as exclusive fishing rights there. The British negotiators also
promised them presents in exchange for their lands.33 These negotiations were clearly in line with those carried out with the Mississauga34
a few years before, and they demonstrated the will of the British
authorities to continue, within the boundaries of this colony, a policy
based on the recognition of the Aboriginal peoples’ rights as ‘‘original
occupants.’’
The two British negotiators showed great optimism about the agreement’s chances of being confirmed by the colonial government. However, they had underestimated the importance of the economic stakes
related to salmon fishing in the Restigouche River. The review of the
agreement’s terms in Quebec City gave rise to serious reservations,
especially about the fishing rights.35 In addition, there was pressure
from an influential London merchant named John Shoolbred, who
had received a concession from the King for ten thousand acres to
be taken in the Chaleur Bay area.36 After several months of dickering,
the colonial authorities finally decided not to ratify the agreement
negotiated in 1786.
An Executive Council committee that had been set up to look into
the rights of the Mi’kmaq along the Restigouche River had concluded
that it was not necessary to approve the agreement. The committee
members had consulted lawyer François-Joseph Cugnet, an influential
legal expert, whose opinion on the colony’s early laws was in great
demand at the time. Cugnet, who also occupied the positions of secretary and translator for the Executive Council,37 convinced them that
the government could allocate the land on the northern shore of the
Restigouche, without concern for any potential Mi’kmaq rights, given
33
34
35
36
37
1785–1871, série Indiens, 1784–1900, SD8 Conseil exécutif, Provincial Archives
of New Brunswick.
The two men invoked the treaties concluded west of the Ottawa River to
convince the Mi’kmaq to cede part of their territory to the British Crown.
‘‘General Observations upon the North of the Restigouche being granted to
the Indians, read in Council the 2nd of March 1797,’’ 54053–68, vol. 110, reel
C-2535, series L-3-L, RG1, LAC.
‘‘His Majesty Mandamus in favour of Mr John Shoolbred for lands in Chaleur
Bay, June 29, 1785,’’ 87197–202, vol. 181, RG1-L3L, LAC.
‘‘Cugnet, François-Joseph,’’ Dictionary of Canadian Biography Online
(www.biographi.ca).
The Dispossession of the Aboriginal Peoples of Quebec 15
that the French practice had consisted of allocating land ‘‘with a perfect
disregard of any supposed prior title in the Indians.’’38
This was the first time that an argument based on the French judicial practice was used to reject the necessity of concluding treaties
with the Aboriginal peoples in order to abolish their rights. The argument was not specific to some areas of the former French colony, but
general in its formulation. If it was applicable for the Chaleur Bay
area, it would also have been valid for all the territory conquered by
the British in 1760. But the colonial authorities in Quebec clearly had
no intention of extending this logic west of the Ottawa River, in the
Upper Countries. There, the political and strategic situation prevented
the implementation of a policy that, even if founded on coherent legal
reasoning, would have created serious problems with the Aboriginal
nations.
East of the Ottawa River, the strategic role of the Aboriginal people
was less important yet not completely negligible. The bulk of the
British defence was located there and, until the early decades of the
nineteenth century, the Saint Lawrence Valley remained the most
densely populated sector in British North America. This situation
offered the colonial rulers greater latitude but did not abolish the problems stemming from reliance on French legal reasoning that denied
Native land rights. This is evident in the 1787 Executive Council decision: after having refused to ratify the terms of the agreement negotiated
with the Mi’kmaq the previous year, the council still decided to offer
them presents in exchange for the portion of land they seemed ready
to cede in 1786.39
It is likely that there was some conceptual discomfort added to the
specific difficulties of implementing such a legal rationale. Predicating
unilateral Aboriginal dispossession on a French colonial heritage seemed
particularly incongruous in the British system, which, until then, had
been used to legitimize its appropriation of Native lands. Such a policy
actually went against the official positions taken by the British before
and after New France was conquered, positions based on the idea of
negotiation and voluntary cession sealed by compensation. The Britons’
self-legitimizing discourse usually played on the protective, just, and
generous role of the British sovereign. This image was at the essence
of the terminology regarding Aboriginal peoples in the royal proclamation, and it infused most of the official declarations concerning
38
39
Minute Books on Land Matters, 13 Aug. 1787, 22, vol. A, RG1 L1, LAC.
Minute Books on Land Matters, 14 Aug. 1787, 8, col. A, RG1 L1, LAC.
16 The Canadian Historical Review
the protection of Aboriginal rights. Such a position was difficult to
reconcile with the idea that the British need not be concerned with
any rights Aboriginal peoples may have had on their land, since the
French never were.
The aborted negotiations with the Mi’kmaq did not serve as a
springboard for the integration of French legal logic; however, they
nevertheless marked a significant step in the implementation of a
Quebec-specific territorial policy. This event intensified a trend emerging in the Saint Lawrence Valley of refusing to negotiate for the purchase of Native land. Admittedly, the reasons invoked to deny the
Aboriginal peoples their rights differed by area: in one case, they referred
to prior migrations and in another, to the French practice of not recognizing Indian deeds. However the result remained the same.
The non-ratification of the treaty with the Mi’kmaq emphasized
the lack of a consistent territorial policy within the boundaries of the
province of Quebec. The same colonial power could decide, in some
circumstances, to conclude treaties with Indigenous people for the
purchase of their land, and in others, to proceed unilaterally, without
supporting these different approaches with a coherent legal logic. This
problem was resolved in part in 1791, when the province of Quebec
was separated into two colonies: Upper and Lower Canada. This division did not entirely eradicate the British policy’s lack of cohesion but
it did dissimulate it in part, by overlaying it with a political structure
that restored a consistency of practice within each of the colonies.
Nevertheless, the fickleness of British policy remained noticeable,
and the Indigenous people of Lower Canada at times highlighted it to
try to soften the colonial stance. This happened, for instance, in the
1790s, during a land claim in the Upper Saint Lawrence area. While
the claim was submitted on behalf of the Seven Nations of Canada,
in reality, it involved only the Saint Lawrence Iroquois. At that time,
as perceived by an Indian affairs agent, the Iroquois were worried by
the rapid reduction of their hunting grounds, due to the arrival of the
Loyalists and to the expansion of colonization in the U.S. territory.40
A first request was submitted in 179441 and it elicited a very careful
reply from the colonial government. The tone and formulations used
by Governor Dorchester are reminiscent of the messages sent by the
40
41
‘‘Remarques de J. B. De Lorimier sur les affaires sauvages,’’ 22 Oct. 1793, 42–4,
vol. 247, reel C-2848, RG8, LAC.
‘‘Extract from minutes of an Indian Council held at Quebec 6th. February
1794,’’ 433, pt 2, vol. 250, reel C-2849, RG8, LAC.
The Dispossession of the Aboriginal Peoples of Quebec 17
British to the Indigenous allies of New France during the Seven Years
War. The governor emphasized that the British policy was not to seize
Native land without due consideration. He stated that if the Seven
Nations were unjustly dispossessed of their land, the situation was
sure to be corrected because the King ‘‘administers justice to all his
children and never takes anything from them without paying the
price’’ [translation]. Without committing formally, Dorchester nevertheless opened the door to the recognition of the Seven Nations’ territorial rights. ‘‘Everything that belonged to the King of France now
belongs to the King, your present Father, but no one can give to another
what does not justly belong to him; that’s why if you formerly had the
right to these lands, and if you have not been paid for them, then that
right still belongs to you’’ [translation].42
This response seems even more surprising when we consider that
its author, Lord Dorchester, also governed the province of Quebec in
1787, when the decision to not ratify the treaty with the Mi’kmaq was
made. It was also Dorchester who, in the late 1760s, clearly rejected
the idea that the Akwesasne Iroquois could have a right to the lands
in the vicinity of the Saint Lawrence.43 This radical change of perspective clearly illustrates the difficulty the British had with the instrumentalization of the French colonial past in their negotiations with the
Aboriginal peoples, especially during times of crisis. Such a crisis
occurred in the 1790s, when it appeared that a new conflict with the
United States was on the horizon. Indeed, the Seven Nations were
fully aware that this created a favourable situation for them and chose
to initiate treaty negotiations with the state of New York at that time,
regarding the cession of their hunting grounds south of the Canadian
border.
In 1795, Dorchester had given Agent Alexander McKee the responsibility of carrying out a first inquiry into the Seven Nations’ claims.44
In July, the Kahnawake chiefs had submitted a document expounding
the basis for their claims to land between the Longueuil and Kingston
42
43
44
‘‘Réponse du Lord Dorchester aux Sauvages des Sept Villages du Bas Canada
dans un Conseil tenu à Montréal les 28e et 29e d’Août 1794 . . . ,’’ 8677–8, vol. 8,
reel C-10999, RG10, LAC.
Guy Carleton was governor of the province of Quebec for a first term (between
1768 and 1778); he received the title of Lord Dorchester in 1786, at the beginning
of his second term in Canada (1786–96).
‘‘At a council held at Lachine with the Chiefs of the Caughnawaga’s and of the
Lake of the two Mountains,’’ 26 July 1795, 222–4, vol. 248, reel C-2848, RG8,
LAC.
18 The Canadian Historical Review
seigniories, ‘‘according to the partition’’ made by their ancestors.45 In
support of their rights, the Iroquois made reference to their immemorial occupation of the location, since ‘‘God’’ had ‘‘created them on
these lands,’’ and they presented their version of colonial history, in
which they had welcomed the French, not vice versa. They had ‘‘never
been conquered’’ by them, and when the ‘‘King of France’’ established
himself on their land, he did it peacefully because the ancestors of
the Iroquois shared with them the ‘‘land that the master of life’’ had
reserved them.46
They were no doubt conscious of the fact that their ancestraloccupation argument had not hitherto been successful at convincing
the colonial powers; therefore, the Iroquois also reminded the British
that, in the past, they had purchased land from Aboriginal people who
were not its original owners; these included the Mississaugas and
Hurons. The Iroquois wondered why they should not benefit from
the same treatment and why Governor Haldimand had not wanted
to pay for their land before settling Loyalists on it. In order to put a
little more pressure on the British, the Iroquois asserted that the
Americans, against whom they had fought in war, were prepared to
pay them for their territory on the other side of the border.47
The claim was submitted to John Sewell, attorney general of Lower
Canada. He deemed it to be valid on certain points, but not on the
extent of the land being claimed. To his knowledge, nothing would
support ‘‘a pretension so unlimited.’’ The land being claimed was
within the borders of Upper Canada, but Sewell called to mind that,
prior to the division of the province of Quebec, a portion of the land
had been set aside for use by the Seven Nations – a reference to the
1784 negotiation between the Akwesasne Iroquois and Haldimand.
John Johnson, the superintendent general of Indian affairs, knew full
well the limits of that reserve, for which the Iroquois had yet to receive
a formal concession. According to Sewell, a duly executed concession
for this portion of land ‘‘will satisfy the seven villages, and silence
their pretensions to the residue of the tract, claimed by their address
and speeches.’’48
45
46
47
48
‘‘Paroles des Sauvages des Sept villages du Bas Canada . . . ,’’ 28 July 1795, 230,
vol. 248, reel C-2848, RG8, LAC.
Ibid., 230–1.
Ibid., 232.
Sewell to Prescott, 17 Feb. 1797, 210–12, reel H-2533, 1796–1797, Military
Secretary’s Entry Book, #1, vol. 17, series 1, Robert Prescott Papers, G II 17,
MG23, LAC.
The Dispossession of the Aboriginal Peoples of Quebec 19
On 23 February 1797, James Green, the governor’s military secretary,
informed John Johnson of the opinion prepared by Sewell. He asked
him to consult the attorney general on the subject and to prepare a
speech in response that was to be submitted to the governor for
approval.49 The response, which was presented in June of the same
year on behalf of the governor, focused on negotiations that were supposed to have taken place in 1784. In exchange for the reserve created
for them, the Akwesasne Iroquois would have abandoned all their
territorial claims over land in the area of the Saint Lawrence. The
governor was committing to taking the necessary steps to ensure that
the Akwesasne Iroquois would obtain a formal concession for that
reserve, but he wanted that to put an end to all claims or representations by the Seven Nations.50
Despite the favourable political context, the Iroquois’ argument,
which clearly illustrated their capacity to force the colonial authorities
to face their own contradictions, did not lead to a treaty negotiation. It
did, however, trigger the first significant vacillation in the British
method of analyzing Aboriginal land rights. In effect, Dorchester’s
response reinterpreted Haldimand’s action in 1784, within the fictional
framework of a negotiation, which impelled the Iroquois to renounce
their rights to land in the vicinity of the Upper Saint Lawrence in
exchange for the creation of a reserve. The French colonial past was
not completely removed from the British discourse, which alluded to
‘‘assigned or promised’’ lands for the Iroquois. But this formulation
remained sufficiently ambiguous to avoid aggravating the Iroquois’
political sensitivity, while they continued to refer to their ancestors’
sharing of the land.
The Iroquois reaction to Dorchester’s response is unknown, but the
lack of further claims for the land in the vicinity of the Upper Saint
Lawrence intimates that the new British rationale was more acceptable, particularly because it recognized their rights, albeit only implicitly, and placed the extinguishment of those rights within a context
of negotiation and renunciation. In this case, the British fiction was
significantly more advantageous than the reality, since it partially reconciled both Iroquois and British conceptions, without requiring any
change in practice. The idea of compensation by granting reserved
land was also built on a useful illusion because, while the British
affirmed that they indemnified the Iroquois for lost territories, they
49
50
Green to Johnson, 23 Feb. 1797, 200, ibid.
‘‘Lord Dorchester to the Indians, Quebec, June 5, 1797,’’ 9238–9, vol. 10, reel
C-11000, RG10, LAC.
20 The Canadian Historical Review
did so by reserving a portion of land that already belonged to them.
But this fiction, which had the advantage of costing nothing, was more
consistent with traditional British legal ideas, since it focused on compensation, a key concept in the ongoing process of legitimizing the
dispossession of land from Quebec’s Aboriginal peoples.
In the same time period, compensatory logic was apparently also
applied to another area: the policy of annual gift distribution to the
Aboriginal peoples. The practice, which went back to the French rule,
had been taken up by the British after 1763 to ensure that they would
receive the support of Aboriginal nations who had previously been
allied to the French. The presents – a tangible manifestation of the
alliance linking them to the British Crown – held particular symbolic
meaning for the Aboriginal peoples. At the end of the eighteenth
century, the colonial power was tempted to modify the primary meaning of this distribution to make it an expression of a fictional negotiation, in which the Aboriginal peoples renounced their land rights.
The argument was seemingly invoked for the first time early in
the nineteenth century with the Algonquins and Nepissings, who were
protesting against the arrival of lumberjacks on their hunting grounds
along the Ottawa River. Philemon Wright, the merchant who had
hired the lumberjacks, defended his position by repeating what he
had been told in Quebec City: the Algonquins and Nepissings ‘‘have
no positive rights to these lands’’; by receiving ‘‘yearly gifts from the
government,’’ they had relinquished ‘‘their claims on the lands’’
[translation].51 It is not known whether his interpretation corresponded
to an official government position, but the idea continued to circulate
and even became partly integrated by certain Aboriginal peoples in
the Saint Lawrence River Valley. As evidence of this integration, in
1837, the Seven Nations of Canada described these presents in a petition as a ‘‘sacred debt’’ that the ‘‘Kings of France’’ had promised their
ancestors they would respect, as ‘‘compensation for the lands’’ that
were ‘‘given up’’ to them. This debt had been ‘‘confirmed by the Kings
of England since the country was ceded, and paid and carried out in a
timely manner since then’’ [translation].52
51
52
‘‘Témoignage de P. Wright,’’ 4 Feb. 1824, in Journal de la Chambre d’Assemblée
du Bas-Canada, 1824, Appendix R.
The chiefs of the Seven Nations to Governor Gosford, 3 Feb. 1837, Copies or
Extracts of Correspondence since 1st April 1835, between the Secretary of State for the
Colonies and the Governors of the British North American Provinces respecting the
Indians in those Provinces, 62, House of Commons, 1839.
The Dispossession of the Aboriginal Peoples of Quebec 21
If the British had played a role in disseminating this interpretation,
they were no longer disposed to use it in the 1830s, as a result of
the high cost of the yearly gift distributions. For several years, the
authorities in London had insisted on the need to radically cut these
expenses. Their requests came as part of an overall review of the
Indian policy, which abandoned the idea of alliances to promote the
civilization of the Aboriginal peoples.53 The decline of the Aboriginal
peoples’ military importance after 1815 played a role in this redefinition of the Indian policy, while the rapid progression of colonization
provided a new legitimization for projects to integrate Indigenous people
into the colonial world. For the British administrators, the Aboriginal
people did not have much choice: if they wanted to avoid being completely marginalized, or even disappearing altogether, they had to
profoundly alter their way of life and take up agriculture and sedentary life.
The position of Britain’s new Indian policy helped define the outlines of a new framework to legitimize the dispossession of Aboriginal
peoples in Lower Canada. The review of the Algonquin and Nepissing
claim played a key role in this process. Their protests against encroachment onto their hunting grounds had begun in the 1790s and continued into the early decades of the nineteenth century, during which
time they addressed a series of petitions to the colonial authorities. In
particular, the Algonquins and the Nepissings were asking for the
creation of a territory reserved for their use and for the payment
of compensation similar to that received by the Aboriginal peoples of
Upper Canada.54
In 1836, after several years of haggling, the colonial government
finally decided to assign a Lower Canada Executive Council committee
to examine the numerous requests received from the Alonquins and
Nepissings. In its 1837 report,55 the committee concluded that their
claim was valid and that they were entitled to compensation. This was
53
54
55
On the new orientation of British Indian policy after the War of 1812, see
John L. Tobias, ‘‘Protection, Civilization, Assimilation: An Outline History of
Canada’s Indian Policy,’’ in Miller, Sweet Promises, 127–44.
See, for example, The Algonquins and Nipissings to John Johnson, 29 July
1824, 12692–3, vol. 3, reel C-11003, RG10, LAC; Speech of Algonquins and
Nipissings, 31 May 1831, 32287–8, vol. 83, reel C-11030, RG10, LAC; The
Algonquins and Nipissings to Mathew Lord Aylmer, July 1833, 34427–8, vol. 87,
reel C-11466, RG10, LAC.
‘‘Report of a Committee of the Executive Council,’’ 13 June 1837, in Copies or
Extracts of Correspondence, 27.
22 The Canadian Historical Review
essentially based on the Royal Proclamation of 1763, which the Alonquins and Nepissings had cited persistently in their different petitions.
In previous years, the idea that this document entitled them to
compensation for their hunting grounds had received solid support
from officers of the Department of Indian Affairs. However, in its use
of the document for its analysis, the Executive Council committee
excluded one fundamental component, namely, the obligation of
using treaties to buy Native lands, and they retained only the idea of
compensation through reserving land.
To support its reasoning, the committee used the precedent of the
land reserved for the Akwesasne Iroquois. Whether or not they deliberately omitted the circumstances leading up to the creation of that
reserve in 1784 and 1797, the committee members gave the event
new meaning: that of land reserved by virtue of the royal proclamation.56 The notion that the Saint Lawrence Iroquois were not the
original occupants had totally disappeared, and so had the idea of
a concession promised by the French and confirmed by the British
within the framework of an indulgent policy (1784), and that of a
negotiation that would have led the Iroquois to renounce their rights
in exchange for their reserve (1797). All that remained was the basis
on which the reserved area had been created: the royal document of
1763. The 1837 report stated that, since the Alonquins and Nepissings
also cited the proclamation, it would be unjust to treat them differently: ‘‘As that Act of State has been considered sufficient to guarantee
to the Iroquois of St Regis [Akwesasne] the Possession of their present
Reservation, to which it is stated that they had no other Right than as
Part of their ancient Hunting Grounds, the Algonquin and Nipissing
tribes may have some Ground to complain if they are deprived of the
Benefit of the same Protection for their Claims.’’57
The 1837 report invested the royal proclamation with new meaning,
in particular, that of royal protection exercised within the context of
an Aboriginal subsistence economy. At the time of the Conquest, the
Crown would have indeed showed its desire ‘‘to secure to the Indians
their ordinary Means of Subsistence,’’58 by placing under its control
the lands that the Aboriginal peoples owned or claimed. Invested with
this new meaning, the royal proclamation enabled the development of a
theory of just compensation that eliminated the obligation to negotiate.
56
57
58
Ibid.
Ibid., 32.
Ibid., 27.
The Dispossession of the Aboriginal Peoples of Quebec 23
For the committee, this just compensation had to be based on the adoption of measures that would maintain living conditions for Aboriginal
people that were similar to those they had had before they were subjected to the impact of colonial expansion:
The Claims of these [the Algonquin and Nepissing] and indeed of all the
Indian Tribes in respect of their former territorial Possessions are at the
present Day to be resolved into an equitable Right to be compensated for the
Loss of Lands from which in former Times they derived their Subsistence,
and which may have been taken by Government for the Purposes of Settlements, and that the Measure of such Compensation should be to place and
maintain them in a Condition of at least equal Advantage with that which
they would have enjoyed in their former State.59
This general principle indicated a road to follow to compensate the
Alonquins and Nepissings: to reserve for them ‘‘a sufficient Tract of
Land . . . in the Rear of the present Range of Townships on the Ottawa
River’’ and to promote their settlement there by offering ‘‘such Support,
Encouragement, and Assistance’’ required to lead them ‘‘to a State of
Independence of further Aid.’’60
The Executive Council committee had skilfully managed to base a
unilateral policy of territorial dispossession on the Royal Proclamation
of 1763. The political dimension of this document, which had been
expressed in the obligation of obtaining Aboriginal consent before
taking possession of their land, had vanished and been replaced by
the idea of just compensation, whose measure was the creation of a
reserve and the granting of government assistance to help in the transition to a sedentary and agricultural way of life. It is doubtless not
a coincidence that these two elements occupied a central place in
Britain’s new Indian policy, which was focused on civilization.
It would seem that this reinterpretation was grounded in the fear of
seeing other Aboriginal nations from Lower Canada make similar
claims if the committee consented to negotiating a land-cession treaty
with the Alonquins and the Nepissings. In February 1837, Duncan C.
Napier, superintendent of Indian affairs, was already anticipating such
demands from other Aboriginal nations if the request of the Alonquins and Nepissings received a positive response from the Executive
Council committee:
59
60
Ibid., 32.
Ibid.
24 The Canadian Historical Review
The Claims of the Algonquin and Nepissingue Tribes to be indemnified from
the Territorial Revenue of the Crown (like their Brethren of Upper Canada)
for certain Portions of their Hunting Grounds which have been occupied for
the Purpose of Settlement are under the Consideration of the Executive
Council at Quebec; should they be allowed, it is possible that other Tribes
who possess similar Claims upon the Local Government, under the Royal
Proclamation dated at Saint James, 7th October 1763, will apply for
Compensation.61
While he did not identify the nations that might ultimately make
such demands, Napier still observed that the ‘‘Hunting Grounds
claimed by the Indians of Lower Canada comprise nearly the whole
of the Waste Lands within the Limits of the Province.’’62 The Executive
Council committee was probably conscious of the broader reach that
its recommendations on the Algonquin-Nepissing issue would have,
and doubtless had in mind the possibility of future territorial requests
coming from other nations. This would explain the effort it made to
provide the basis for the principle of just compensation, which could
be transposable to other claims.
The principle of just compensation set out in 1837 was approved
by London two years later63 and would become the core of the new
legitimization for the territorial dispossession of Aboriginal peoples.
In 1858, another commission responsible for investigating the administration of Indian Affairs fully reiterated this argument,64 which in
1851 was indirectly expressed in a law setting aside 230,000 acres of
land for the Aboriginal peoples of the former Lower Canada.65 This
law was the legal tool used to create a series of new reserves, which
would, for a time, be associated to the idea of compensation for the
loss of the larger hunting territories.66
61
62
63
64
65
66
Napier, ‘‘Answers to the Queries . . . ,’’ 29 May 1837, in Copies or Extracts of
Correspondence, 24.
Ibid., 22.
‘‘Copy of a Despatch from Lord Glenelg to the Earl of Durham,’’ 22 Aug. 1839,
in Copies or Extracts of Correspondence, 6–7.
Canada, Report of the Special Commissioners Appointed . . . to Investigate Indian
Affairs in Canada (Toronto: Stewart Derbishire & George Desbarats, 1858),
pt III.
An Act to authorise the setting apart of lands for the use of certain Indian tribes in
Lower Canada, 14–15 Vict., 1851, ch. 106.
This was the perspective taken by the report of the commission in 1858 (Canada,
Report of the Special Commissioners, pt II). See also Pennefather to Edmund Head,
4 May 1860, in ‘‘Copies or Extracts of Correspondence between the Secretary of
State for the Colonies and the Governor General of Canada respecting Alterations
The Dispossession of the Aboriginal Peoples of Quebec 25
The idea of just compensation also served as a framework for rethinking French territorial practices within a new fiction that emerged in
the Bagot Commission’s report. This commission of inquiry had been
established in 1842 to look into the problem of the administration of
Indian Affairs. Its report noted a fundamental difference between the
Aboriginal territorial holdings in Upper and Lower Canada. At the
time of the Conquest, the Aboriginal peoples of Upper Canada ‘‘were
the main occupants of the territory,’’ which made it necessary ‘‘as the
settlement of the country progressed, to make arrangements with them,
in order to get them to freely cede part of their hunting grounds’’ [translation]. The situation of Aboriginal land in Lower Canada was very different. The ‘‘settlements had advanced rapidly before the conquest,’’
wrote the commissioners, and the Aboriginal ‘‘territorial possessions . . .
were therefore confined within fixed boundaries and, in several cases,
were owned by virtue of letters of patent from the French Crown or
from specific seigneurs’’ [translation]. In all of Lower Canada, according to the commission, there was only ‘‘one single place’’ where
Aboriginal peoples ‘‘were dispossessed without compensation of their
former hunting grounds’’ [translation]67 and that one place was the
Ottawa Valley, in the territory claimed by the Algonquins and the
Nepissings.
Despite their brevity, these comments suggest that, for the members
of this commission, the actions taken by the French, that is, the granting of land to the Aboriginal communities, had resulted in limiting
their territorial possessions to defined spaces. These observations also
indicate that, in the Bagot Commission’s reinterpretation of French
colonial history, the lands granted by the French Crown had had the
effect of compensating Aboriginal peoples for the loss of their hunting
grounds. In fact, saying that there was only one area in which the
Indigenous people had been dispossessed without compensation of
their former territory was equivalent to saying that the other nations
had been compensated by receiving land from the French authorities.
In a way, the Bagot Commission’s analysis marks the endpoint of a
long process of legitimization, which used history to justify a specific
67
on the Organization of the Indian Department in Canada,’’ Ordered, by the
House of Commons, to be printed, 25 Aug. 1860, Irish University Press Series of
British Parliamentary Papers, Colonies, Canada, 23, 31; Hector L. Langevin, ‘‘On
the petition of the Algonquin Indians,’’ Ottawa, 26 Oct. 1868, 1–3, vol. 723, reel
C-13412, RG10, LAC.
‘‘Rapport sur les affaires des Sauvages en Canada, 1845,’’ s. iii, in Journaux de
l’Assemblée législative de la Province du Canada, 1847, Appendice (T.), 3. Terres;
1. Titres aux terres.
26 The Canadian Historical Review
way of appropriating Native land. This rereading of the French colonial
past was without any real historical foundations but it provided a specific meaning for the creation of new reserves in the mid-nineteenth
century. It maintained an illusion, which was all the more powerful
because it could be inscribed within a historical continuity, that the
reserves, whose limited boundaries express the magnitude of Aboriginal
dispossession, were, in fact, compensation.
Reconstituting the convoluted path that led the British to define a
specific policy regarding Native lands in the province of Quebec indicates that the French colonial past did play a role in the process. But
this role had little or nothing to do with the legal interpretations put
forth in the closing decades of the twentieth century that rejected the
idea that there was an ‘‘Indian title’’ on the land in Quebec at the time
of the Conquest. Although the British did flirt, in the late 1780s, with
the French notion that the Aboriginal peoples’ title to their lands was
worthless, this temporary deviation left no significant mark on their
method of legitimizing the dispossession process for Aboriginal land.
Above all, the British retained from the French a way of doing
things, which consisted of appropriating Native lands without reaching treaties with them. This borrowed method established itself fairly
quickly, although it is impossible to identify a specific date in the early
British regime, when the decision to act in this way was formally
made. This practice did not at first rest on an overall strategy. Rather,
it developed from a series of specific cases where each decision reinforced the trend, creating a sort of habit, which conditioned later decisions. As they accumulated, the precedents laid out a path from which
the British surely could have deviated at any time; however, the risk of
such a deviation opening the door to a series of claims created a highly
effective guardrail.
The consistency of the way in which Native land was appropriated
did, however, lead to heterogeneity in the standard discourses legitimizing it, reflecting the discomfort that is evident in the process with
which the British attempted to self-legitimize their actions. In this
light, the incoherent points of the colonial discourse, the shifts in
meaning and the imaginative instrumentalization of colonial history
(French and British) reveal an approach that aimed to develop a tool
for colonialism that more closely corresponded to the traditional British
model in which compensation played an important role.
One conclusion stands out in terms of this path: that practice determined the standard and not the reverse, at least until a new standard
framework took its final shape with the theory of just compensation.
Well established after 1837, this framework made it possible to reinte-
The Dispossession of the Aboriginal Peoples of Quebec 27
grate the French past into a new schema. The French colonial practice,
based on the non-recognition of Aboriginal land rights, and the Royal
Proclamation of 1763, the symbol par excellence of the recognition of
those rights, fused into a syncretic model that coated dispossession
without treaties with the varnish of compensation.
alain beaulieu is a professor in the History department at the Université du
Québec à Montréal and holds the Canada Research Chair on the Aboriginal
Land Question. His recent work addresses the process by which the Aboriginals
of eastern and central Canada were progressively dispossessed of their land
and placed under the tutelage of the Canadian government.
alain beaulieu est professeur au Département d’histoire de l’Université du
Québec à Montréal et titulaire de la Chaire de recherche du Canada sur la
question territoriale autochtone. Ses recherches récentes portent sur le
processus par lequel les Autochtones de l’est et du centre du Canada ont
été progressivement dépossédés de leurs terres et placés sous la tutelle du
gouvernement canadien.
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