In this excerpt from a recent video on the Indian Act, Jack Woodward Lawyer offers insight on the history of First Nations land law.
There are couple of things in the Indian Act that are continuations of the policy that was laid down in the Royal Proclamation of 1763. Now, the Royal Proclamation of 1763 is the original constitution of Canada. It set up a country that was based on certain fundamental principles. Right there in the Royal Proclamation of 1763 is the principle of democracy, the principle of the Rule of Law, and, very importantly, respect for the lands of the Aboriginal peoples. So a lot of Canadians don’t realize that one of the fundamental points of the Canadian constitution going right back over 250 years, is respect for Aboriginal lands. It’s right there at the heart of the constitution.
Now, that principle of what’s called inalienability - you cannot alienate Aboriginal lands - that principle was carried from the Royal Proclamation into the Indian Act, so there’s certain essential clauses of the Indian Act that say Indian lands that — in the context of the Indian Act, we’re talking about Indian reserve lands — Indian reserve lands cannot be sold or alienated without the full consent of the First Nations. And that has resulted that these tiny parcels of land are nevertheless still in Aboriginal ownership often 100 or 150 years after the reserve lands were set aside. Now, if the Indian Act was simply abolished, one question that comes up is whether those remnants from the Royal Proclamation of 1763 would also be abolished.