4th Evening of Legal History, Nov. 19: Heidi Bohaker speaking on Canada by Treaty: Indigenous Legal Traditions and the Common Law of Property in the Agreements that Shaped a Country
Join us for our fourth
evening session of Legal History for Legal Professionals.
On November 19th
Professor Heidi Bohaker will present the fourth lecture in our
lecture series (5:30 at Osgoode Hall, Toronto)
Canada by Treaty: Indigenous Legal Traditions and
the Common Law of Property in the Agreements that Shaped a Country
A central fact of the Canadian historical experience is that the French
and subsequently British colonization of Indigenous lands was effectively
peaceful, and accomplished through treaties, at least for the 50% of the
Canadian land mass covered by those agreements prior to 1923. While the
colony of New France was conquered militarily and ceded to Great Britain
by the 1763 Treaty of Paris, there was no military conquest of France’s
Indigenous allies, not then, and not really at any subsequent
Indeed, The Royal Proclamation of 1763, which was the first British
constitution for the former French colony of Quebec, recognized
Indigenous title to and jurisdiction over their own lands, and laid out
the rules by which subsequent generations of British settlers would
acquire it. The Proclamation forbade any private person from acquiring
title to any land, limiting such purchases from the “several Nations or
Tribes of Indians with whom We are connected” only to the Crown, and only
at “some public Meeting or Assembly” that was convened by “the Governor
or Commander in Chief.” In other words, such purchases of land were to be
undertaken at the level of government to government, or nation-to-nation.
And many such purchases were made beginning in 1768 – each purchase
called a treaty. While the text of the documents are standard British
title deeds, the associated council minutes reveal different legal
traditions at work – the creation and renewal of alliance relationships
according to Haudeonsaunee and Anishinaabeg customary law.
Examination of treaties negotiated between 1768 and 1862 for lands in
North America’s eastern Great Lakes Region (including what is now
Ontario) reveals the enduring presence of Indigenous legal traditions in
such “purchase” agreements, where one party sought to acquire title, and
the other to affirm or renew an alliance relationship.
This essential historic and cross-cultural context is crucial to making
sense of contemporary treaty litigation and ongoing challenges in
Indigenous-Crown relationships across Canada today.
* approval pending for 40 minutes EDI Professionalism Credit from the Law
Society for Ontario.
This lecture is for Osgoode
Society members only
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book, which will be A History of Law in Canada Volume I:
1500 to 1866 by Philip Girard, Jim Phillips, and Blake
newsletter with information on the Osgoode Society and Canadian