Module 4: Treaty Relationships

Treaty relationships and negotiations are complex. This section considers the motivations behind entering into Treaties, what promises were made, and some of the current issues surrounding Treaty relationships in Canada.

Pre-Confederation Treaties

Before the confederation of Canada, Treaties were signed with many First Nations. These first Pre-Confederation Treaties took several different forms: trade pacts, peace and friendship treaties, alliance, extradition and the exchange of prisoners (RCAP, 1996 vol 1., “Contact and Co-operation”). The type of Treaty was determined by the reason for the interaction (Miller 2004,110). For example, J.R. Miller argues that, “in both the seventeenth and eighteenth centuries treaties of alliance, peace, and friendship were commonly employed to regulate relations between Europeans and First Nations, and also between and among the Indian nations themselves” (Miller 2004,111).

The types of promises contained in a particular Treaty generally related to the type of Treaty negotiated. Most early pre-confederation Treaties made no specific reference to land cession. In 1725, a peace and friendship Treaty was signed between the Mi’kmaq and the English. The Treaty of Boston forever guaranteed the Mi’kmaq their lands, liberties and properties that had not been conveyed or sold to or possessed by any of the English Subjects. The Treaty also guaranteed the privilege of fishing, hunting, and fowling (Miller 2004,114). This Treaty clause is indicative of the British hope to secure peace between the parties by promising that the Mi’kmaq would retain their lands and the ability to use their lands until they were sold to the English.

J. S. Y. Henderson points out that the pre-confederation Treaties were typically “made according to Aboriginal rather than European protocols” (Henderson 1994, 248). The Treaties were often concluded with the presenting of gifts from the English to the First Nations (Miller 2004,116). John Borrows describes how “presents were important to First Nations because they were regarded as a necessary part of diplomacy which involved accepting gifts in return for others sharing their lands” (Borrows 1997,158).

Treaties according to their written texts are a series of “gives and gets”. First Nations gave up title to their land (i.e., “… do hereby cede, release, surrender and yield up … forever, all their rights, titles and privileges …” – Treaty 6). They also agreed to observe the law and become loyal subjects of the Crown. In return, the Crown agreed to the following points:

• to set aside/reserve lands for First Nations
• to provide annuities each year
• to have schooling on the reserve
• to assist with medical care
• to guarantee ongoing access to Crown lands for hunting, fishing and trapping.

Due the challenges of negotiating agreements across languages, there were different understandings of what Treaties meant to each party. According to written texts, Treaties are legalistic documents. Oral histories of treaties, however, see treaties as alliance agreements meant to share land and resources in a peaceful manner, rather than simple land cession agreements. These challenges extended into the post-Confederation Treaty making process.

Post-Confederation: Numbered Treaties

After the Confederation of Canada, the approach to Treaties shifted from peace and friendship to large land cession treaties. Miller points to the economic interests that influenced many of the Numbered Treaties: minerals, forestry, hydroelectric potential (Miller 2004,147). The riches of the west were key to providing revenue for the newly established Canada. Settlers were arriving and Canada needed to secure land for these homesteads. Between 1871 and 1921, eleven “numbered” Treaties were signed (see map in Figure 4-1).

The numbered Treaties were fairly formulaic, most containing similar promises. Discussing Treaty 6, Sharon Venne (1997) details promises contained within the Treaty in relation to:

• health care
• education
• water
• fishing, hunting, and trapping
• police
• reserves
• mountains
• birds
• social assistance
• minerals
• Indian Agents
• farm instructors
• Treaty money
• citizenship

The numbered Treaties contained provisions for individual annuities to be paid. The numbered Treaties generally contained formulas for the creation of reserves, generally 160 acres per person, though there are many examples where communities did not receive the lands they were promised. All in all, many First Nations argue that Canada has failed to fulfill the spirit and intent of its Treaty obligations.

Modern Treaties

Starting in the 1970s, the Canadian government began negotiating new agreements with First Nations. These agreements are often referred to as Modern Treaties. Modern-day treaties can cover a broad range of issues. One of the most important areas is self-government. According to the Federal Inherent Right Policy 1995, self-government and land claims can be negotiated simultaneously as part of comprehensive claims. The Inherent Right Policy states that “the Government of Canada is prepared, where the other parties agree, to constitutionally protect certain aspects of self-government agreements as Treaty rights within the meaning of section 35 of the Constitution Act, 1982. Self-government arrangements may be protected under section 35 as part of comprehensive land claim agreements.” (Indigenous and Northern Affairs Canada).

Self-government agreements may cover areas of general governance of the internal affairs of the peoples. These agreements may also cover issues of law-making, law enforcement and distribution of justice. Self-government may also include provisions on social services such as social assistance, health care, education and training. It is important to understand that there is considerable contention regarding the application of section 35 to the inherent right of self-government and/or self-determination.

A second main issue within modern-day treaty-making refers to the limited range of topics on the negotiation agenda. Topics for negotiation must be approved by all parties. The difficulty in achieving consensus on new topics has maintained an extremely limited focus on land and resource issues. The main concern with land rights is whether they include surface and sub-surface rights including oil and mineral rights. Connected to this issue of land rights are concerns for hunting and fishing rights. Modern-day agreements often provide for the continuation of hunting and fishing in at least a portion of the claimed area. They typically do not cover social service issues related to families and children such as housing, or minimum income levels.

A third concern regarding modern-day treaty-making is the implementation of the agreement. Most modern-day Treaties now also have implementation plans. Implementations plans are “an integral appendix to a final agreement because it identifies what must be done to put the agreement into effect, who will be responsible for which implementation activity, as well as when and how these activities will be undertaken” (INAC). If implementation of the agreement is not clearly determined, the implementation could be subject to litigation.

A fourth concern about modern-day treaties is the length of time it takes to negotiate the agreements. In over twenty years of negotiations, only fifteen agreements have been concluded. Negotiations over this length of time create several additional problems. In many circumstances, there will be several turnovers of staff involved in the negotiation. Every time a new person comes to the table, there is potential to slow the process by returning to old issues. This length of negotiation also creates a backlog in claims as the government has limited resources devoted to claims negotiations. Further, communities will need to pay lawyers (or other negotiators) over this period of time. Also, it is difficult to maintain a community mandate for negotiations over several decades. It may be difficult to maintain community support for a process that appears to have few immediate benefits, especially when many communities face serious social and economic issues. However, others argue that there is a need to ensure that negotiations involve different generations in order to ensure intergenerational commitment and access to decision-making involving such fundamental and widespread changes to governing structures.

As the dialogue and debate develop around the concept of Treaty implementation, it is without doubt that many issues will challenge both parties. Perhaps the most fundamental issue relates to First Nations’ sovereignty versus the sovereignty of the Crown. Put another way, how do the treaties impact First Nations’ sovereignty? Did First Nations continue to have full “nationhood” after they signed Treaties or did this somehow change as a result of their agreement with the Crown?

The Supreme Court of Canada has addressed this question in various rulings. The Court has taken the view that treaties serve as tools to reconcile their sovereignty with the Crown’s sovereignty:

Ultimately, however, the Court’s view is that Canada’s Constitution and the Crown’s sovereignty, which is central to the legitimacy of Canada’s system of governance, should prevail.

First Nations continue to assert that by entering into Treaties, the Crown implicitly recognized First Nations nationhood and sovereignty. That assertion and recognition of nationhood continues to be the objective of many First Nations in current dealings with the Crown. These different views of First Nation sovereignty, Crown sovereignty and Canada’s constitution can be characterized as shown in Figure 4-3.

In response to claims that the Government of Canada has failed to live up to many of its Treaty obligations, the Government has initiated a number of different Treaty renewal or review processes. Two processes that are briefly discussed here are the Treaty Land Entitlements and the Specific Claims Process. The Treaty Land Entitlements (TLE) process is intended to settle the land debt owed to those First Nations who did not receive all the land they were entitled to under historical treaties signed by the Crown and First Nations. Once land quantum is determined through the negotiation process, a First Nation may purchase federal, provincial (territorial), or private land to settle a land debt. (INAC). The Specific Claims Branch in Indigenous and Northern Affairs Canada manages TLE claims.

Despite Canada’s willingness to settle these Treaty land issues, “Canada remains committed to balancing legitimate interests of First Nations with equally legitimate interests of non-Indigenous parties. As is the case with claims settlements across the country, private property will not be affected by claims settlements. Any future land sales will be strictly on a willing seller/willing buyer basis. Treaty First Nations have questioned whether it is appropriate to balance the fulfillment of sacred and legally binding (now constitutionally entrenched) promises against the interests of non-Indigenous peoples. Further critiques are made against the TLE policy that limits the re-acquisition of private lands to situations where the seller is willing because these were lands that were illegally taken from Indigenous peoples.

The Specific Claims branch is also responsible for specific claims which arise from Canada’s breach or non-fulfilment of lawful obligations found in Treaties, agreements or statutes (including the Indian Act). The Specific Claims Policy was first established in 1973 and was amended in 1991 “to include pre-Confederation claims, and the introduction of ‘fast-track’ claims (where the claim settlement is not expected to exceed $500,000). The Specific Claims Branch is responsible for assessing the validity of the claim, negotiating the grievances of First Nations where a lawful obligation has been disclosed, participating in Indian Specific Claims Commission (ISCC) inquiries and responding to the recommendations of the ISCC, working with other branches, sectors, departments and governments in their resolution of First Nations’ grievances, either in litigation or in alternative forums” (INAC).

The specific claims process has been subject to much criticism. For example, in Saskatchewan, “First Nations have been leaders in the call for reform to the current claims process. They have sought an independent process to address Specific Claims because Canada is in a conflict of interest in judging claims against itself. Recently, First Nations have been frustrated by the slow pace of claims settlement under the current policy and the inherent unfairness of the system” (FSIN, 2006). Despite these resolutions processes for unfulfilled Treaty promises, the processes remain unsatisfactory to many Treaty First Nations.

The treaty negotiation, implementation, and settlement processes in Canada are complex and involve multiple political jurisdictions and players. Many political issues surrounding Indigenous governance are rooted in a misunderstanding of the role of treaties on Indigenous-state relations. In addition, many non-Indigenous people fail to recognize that treaty history affects both Indigenous and non-Indigenous persons alike. However, due to differing opinions on the spirit and intent of historical treaty negotiations, treaty relationships have shaped Indigenous political, economic, and cultural ways of life in different ways than they have for non-Indigenous persons. If we are to understand Treaties as ongoing promises made to outline the relationship between Indigenous and non-Indigenous Canadians, understanding Treaty history and addressing outstanding Treaty promises are integral for reconciliation.

Treaties are not universal in application or content. Different types of treaties were negotiated in different regions, and not always universally fulfilled. Particularly with modern treaties, there are multiple political interests at play, and a major concern for First Nations groups is if it is equitable to have to balance the interests of non-Indigenous groups against legally binding, constitutionally enshrined treaty obligations.

There are two major interpretations of Treaties. The Treaty First Nations believe the treaties have not been implemented according to their spirit and intent, including oral promises, while the Government of Canada relies primarily on the written text of the treaties as the foundation for the Crown’s obligations.

There are competing opinions over how the spirit and intent of Treaties affects the Canadian constitutional framework. Many First Nations believe that in signing Treaties, the Canadian government recognized the sovereignty and legitimacy of Indigenous nationhood. However, the Canadian government believes that, at best, Indigenous governance is a sub-level of government and the federal government is the ultimate sovereign authority over all issues.

 A key political issue in the negotiation of historical Treaties was land allocation for First Nations. There are ongoing Treaty Land Entitlements settlements to deal with land that was never properly allocated to First Nations in original treaty implementation. This is of ongoing concern as often promised lands are resource-rich and can lead to political strife over how reallocation of treaty lands might negatively affect non-Indigenous groups who could benefit from resource extraction from those lands.

Another issue is that the negotiation of modern treaties does not include discussions of social issues in Indigenous communities, often leaving these areas unaddressed by all levels of government.