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Monday, November 5, 2018

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 point.

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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