12.Michael Connor, The Invention of Terra Nullius: Historical and Legal Fictions on the Foundations of Australia (Sydney: Macleay Press, 2005). Henry Reynolds attempted to refute this wonderful book in a hit piece (accessed November 18, 2015), https://www.themonthly.com.au/books-henry-reynolds-new-historical-landscape-responce-michael-connor039s-039the-invention-terra-nul.
13.Michael Duffy, “Terra Nullius – The History Wars,” Interview with Andrew Fitzmaurice, Christopher Pearson, and Henry Reynolds, Counterpoint, ABC Radio National, August 16, 2004, http://www.abc.net.au/radionational/programs/counterpoint/terra-nullius-the-history-wars/3416432#transcript.
14.A figure of speech in which a part is used for the whole or the whole for a part, or vice versa – like how wheels means a vehicle.
15.Tonya Frishner, “Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery, Which Has Served as the Foundation of the Violation of Their Human Rights,” in Preliminary Study Reported at the Ninth United Nations Permanent Forum on Indigenous Issues (New York, 2010), 30–37, http://tinyurl.com/or9hvtg. (File opens as a document.)
16.Even though this is clearly true, saying this sometimes causes people to accuse you of using the Tu Quoque logical fallacy. This fallacy is committed when one assumes that just because someone else has done a thing, there is nothing wrong with doing that thing.
17.Sharon Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (Oxford: Clarendon Press, 1996). Korman offers a thorough discussion on how the Doctrine of Conquest has worked over the centuries.
18.Stuart C. Houston, and Stan Houston, “The First Smallpox Epidemic on the Canadian Plains: In the Fur-Traders’ Words,” The Canadian Journal of Infectious Diseases 11, no. 2 (2000): 112, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2094753/.
19.Lloyd Duhaime, “Adverse Possession – James Cooper in The Prairie Tale, 1827,” http://www.duhaime.org/LegalResources/RealEstateTenancy/LawArticle-69/Adverse-Possession.aspx.
20.Chris Andersen, Métis: Race, Recognition, and the Struggle for Indigenous Peoplehood (Vancouver: UBC Press, 2014), 111–112.
21.Erik Anderson, “The Treaty Annuity as Livelihood Assistance and Relationship Renewal,” A History of Treaties and Policies, volume 7, Aboriginal Policy Research series (Thomson Educational Publishing, 2010), 73, http://apr.thompsonbooks.com/vols/APR_Vol_7Ch5.pdf. Treaty annuities as carrot stick and current payments not indexed to inflation are examined in this piece. Other than in parts of Treaty 9 territory, where the annuity is four dollars, treaty payments are five dollars per person, per year.
22.Grassy Narrows First Nation v. Ontario (Natural Resources), 2014, [2014] SCC 48, accessed November 22, 2015, http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14274/index.do. In this case, knows as Keewatin, the Supreme Court affirmed the following: “In 1873, Treaty 3 was signed by treaty commissioners acting on behalf of the Dominion of Canada and Ojibway Chiefs from what is now Northwestern Ontario and Eastern Manitoba. The Ojibway yielded ownership of their territory, except for certain lands reserved to them.”
23.Indigenous and Northern Affairs Canada (INAC), “The Numbered Treaties (1871–1921),” last modified June 4, 2013, https://www.aadnc-aandc.gc.ca/eng/1360948213124/1360948312708.
24.Harold Cardinal, and Walter Hildebrandt, Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized as Nations (Calgary: University of Calgary Press, 2000), 10.
25.Ibid., 66.
26.Ibid., 36.
27.Hopefully, it is clear this is satire – if not, my apologies. Failed satire merely replicates the offensive beliefs it is trying to mock, and that’s what makes satire a bit dodgy to engage in. Nonetheless, all of the arguments I “champion” in this chapter are ones that I have actually seen people engage in, many times over. It is my hope that if folks are a bit more familiar with some of the terms and arguments in use, it will be easier to refute them. Forewarned, and forearmed, and all that.
27
Treaty Talk
The Evolution of Treaty-Making in Canada
I was at a Niigaan: In Conversation event in Ottawa a few years back, on a panel with John Borrows,1 Shiri Pasternak,2 and Ed Bianchi.3 I name drop them so you can access some of the resources they have created or helped to create. Also, they’re awesome people.
Anyway, we wanted to have a discussion on treaty responsibilities beyond basic 101 discussions, and it went fairly well. At the end of our panel discussion, however, a man stood up and said we had failed to reach him because he did not know what Peace and Friendship Treaties are, or the difference between those treaties and the Numbered Treaties. Basic ABCs, as he put it. He asked us to spoonfeed him and others like him. Otherwise, discussions attempting to move us forward were simply not going to work.4
As I pointed out in the Introduction, this entire book is meant to provide the basic 101 information people need in order to begin moving relationships forward between Indigenous and non-Indigenous people. This section of the book, specifically, is an attempt to provide people with information about the various doctrines used to justify Canadian sovereignty, as well as the kinds of treaty relationships that exist in Canada. Hopefully, the fellow who spoke up after our panel those years ago will pick up this book, like it, and recommend it to his friends.
So, let’s go back in time a little.
Early treaty-making in Canada
For some time in our early relationship, Europeans dealt with Indigenous peoples on a fairly equal basis.5 This was, of course, during a period when European numbers were low in comparison to the Indigenous population, and at a time when Europeans desperately needed help to survive these climes. Indigenous peoples were self-governing nations and had been for thousands of years.6
The links between Aboriginal and non-Aboriginal societies in this initial period of contact were primarily commercial and only secondarily political and military [in nature]….
They [Europeans] did not interfere in a major way with long-standing Aboriginal patterns of pursuing their livelihood and actually tended to build on Aboriginal strengths – hunting, fishing, trapping, trading, canoeing or transportation – rather than undermine them.7
Later on, colonial powers expanded these relationships as they sought allies among Indigenous peoples as a way of surviving the military aggression of their fellow Europeans. Treaty-making during this pre-Confederation period focused on these specific needs and were not about land so much as they were about securing military and economic aid from the eastern First Nations.
Growing up in the west, I knew very little of these kinds of treaties. My relations live mostly in Treaty 6 and Treaty 8 territory, so my understanding of treaties was very coloured by that context. The idea of treaties not being about taking land and shoving Indigenous peoples onto successfully smaller and crappier pieces of land was just something I hadn’t considered as being possible.
When the wholesale acquisition of land does not even truly enter the equation via treaty, it is much more difficult to claim the original intentions were indeed “you give us everything, and we re-gift you a tiny piece back.”
When Europeans arrived, Indigenous peoples were already consummate treaty-makers, with a long history of making treaties with other Indigenous nations. The Great Law of Peace is often brought forth as an example of this: a treaty that united the Oneida, Mohawk, Cayuga, Onondaga, and Seneca into the Haudenosaunee (People of the Longhouse, the Iroquois Confederacy).8 It has 117 articles governing the relationship between five nations, is at least a thousand years old, and is still in place today.9
These inter-Indigenous treaties were highly sophisticated oral agreements between sovereign peoples. They covered everything from trade arrangements to the settlement of conflicts, with specific consequences for their breach, and specific ways in which these treaties would be renewed.
Renewal of treaty relationships is very much a core aspect of Indigenous treaty-
making. When I talk to people about Indigenous treaties, I liken them to any other sort of relationship: you do not enter into a relationship and then simply ignore the other person afterwards; this is simply not how effective relationships work!. Relationships must be renewed with constant care, negotiation, and openness to change. So, too, treaties.
Early European arrivals understood this, and renewal was an important part of maintaining good treaty relationships with Indigenous peoples. Europeans brought their own protocols, one of which involved written documents, but they also respected Indigenous protocols. The treaty process was carried out in a way that blended Indigenous and European traditions, resulting in great diversity of process, as each Indigenous nation had its own specific procedures for making these agreements.
From the Two-Row Wampum to the Great Peace of 1701
The first formal treaties between Indigenous peoples and settlers were focused on peaceful co-existence, trade, and dispute resolution processes such as the exchange of prisoners. Europeans, at this point in history, were in an almost perpetual state of warfare with one another, competing to claim the most land and resources possible. Securing alliances among the Indigenous nations was vital to this struggle. Colonies were small in size, and vulnerable to attack and privation.
The Haudenosaunee entered into a treaty known as the Two-Row Wampum with the Dutch in 1613.10 This was not a written treaty, but rather one that was symbolized and commemorated by a wampum belt made of quahog shells. The Two-Row Wampum is considered by the Haudenosaunee to be a foundational treaty, which remains the basis for all relationships with European powers since.11 That relationship, which is an ongoing negotiation, not a settled issue, is captured by the term kaswentha (guswenta):
Kaswentha emphasizes the distinct identity of the two peoples and a mutual engagement to coexist in peace without interference in the affairs of the other. The Two Row Belt, as it is commonly known, depicts the kaswentha relationship in visual form via a long beaded belt of white wampum with two parallel lines of purple wampum along its length – the lines symbolizing a separate-but-equal relationship between two entities based on mutual benefit and mutual respect for each party’s inherent freedom of movement – neither side may attempt to “steer” the vessel of the other as it travels along its own, self-determined path.12
Mutual respect, peaceful coexistence, and non-interference – these are the principles at the heart of kaswentha, and at the heart of many other Indigenous nations’ treaty-making process.
The Haudenosaunee went on to make a series of Covenant Chain treaties.13 In all, between 1613 and 1842, the Haudenosaunee engaged in over 400 negotiations with other Indigenous nations, the Dutch, the English, the French, and later, the United States.14 European nations were very familiar with Haudenosaunee protocols surrounding negotiations and treaty-making at this point in history. Annual meetings to renew alliances were seen as vital by the Haudenosaunee, and, though the British acquiesced, there were differences in opinions on the necessity of how to maintain treaty relationships:
The British view of treaties was that once a treaty was signed it would remain in effect – more or less in a steady state – until definite action was taken by one or both sides to change it. In contrast, the Iroquoian view was that alliances were naturally in a constant state of deterioration and in need of attention.15
The French allied themselves with the Innu (also known as the Montagnais), Wendat (Huron), and Algonquin in mutually beneficial commercial and military relationships against the Haudenosaunee, and later, the British, who were seeking to expand their own colonies. These alliances came about through oral treaties between the parties, respecting protocols such as gift-giving, which was a way in which the alliance was renewed over time. The fact that these treaties were not written down made them no less binding.
Written treaties between the French and Indigenous nations began as nonaggression pacts among former enemies, such as a series of agreements between the French and Haudenosaunee. These treaties were not as successful, and conflict between the French and the Haudenosaunee continued for nearly a century until the Great Peace was signed in Montreal in 1701.16 The Great Peace of 1701 established Haudenosaunee neutrality in conflicts between the French and English for a time, ushering in a period of peace that allowed French communities in particular to flourish and grow.
Peace and friendship treaties
After 1701, the L’nu (Mi’gmaq/Micmac/Mi’kmaq) and Wolastoqiyik (Maliseet/Malecite) who were part of the Wabanaki Confederacy, entered into a series of Peace and Friendship Treaties with the British.17 These treaties were not land surrenders, but rather established commercial trade arrangements and reflected a desire on the part of the British to have military alliances with the L’nu and others, or at least neutrality in conflicts with France. A number of these treaties were signed between 1725 and 1776.18 Sometimes, disputes arose after a treaty was concluded, and another treaty would be negotiated to address outstanding concerns. Often, subsequent treaties were reaffirmations of issues settled in previous treaties. Despite the name, things were not all close and cozy; this was a time of great conflict and turmoil as Europeans brought their internecine warfare to the Americas.
It is important to understand that armchair interpretations of treaties are not advisable nor likely to provide you with any real understanding of the treaties. Treaties have always been more than what was written on paper, and the courts have battled mightily to interpret them over the years. If you really want to learn more about any of these treaties, you should pick up Aboriginal law texts, which include relevant court decisions, as well as commentary on how these decisions impact the understanding of the various treaty rights under discussion.19 Keep in mind that the courts favour Canada’s view of the treaties over Indigenous peoples’ understandings, so you aren’t exactly going to get the whole picture this way.
Treaty-making took a definite turn once the British had established supremacy in North America. Don’t get me wrong. There had been differences of opinion all along as to what treaties really meant and which promises were actually binding. European powers, as they gained more of a foothold in North America, began to assert that Indigenous peoples were submitting to European rule when engaging in treaty-making. This was certainly not a point of view shared by Indigenous peoples themselves. Renewal of treaty via annual gift giving and ceremonies was seen by Indigenous peoples as central to the relationship, whereas some colonial authorities took a pragmatic approach to “humouring the Natives,” without really seeing the value in these practices. Nonetheless, treaties began to be more explicitly about opening up land for use by settlers.
Pre-Confederation treaties
The pre-Confederation treaties include the Upper Canada Land Surrenders and the Robinson and Douglas treaties.20
The Upper Canada treaties were made to open up land for British colonists to settle. They cover very small areas of Canada, mostly in (as the name implies) Upper Canada. Between 1764 and 1783, treaties were still focused more on trade and security than on the tiny parcels of land involved. The pace of land surrenders sped up, however, and a number of treaties were negotiated between 1783 and 1812 in order to settle Loyalists after the American Revolution. The documents involved described the lands, the Indigenous peoples involved, and compensation to be received in exchange.
These were massively tumultuous times, by the way, and I am glossing over them very, very quickly.21
After the War of 1812, European immigration increased rapidly, and soon British attitudes toward Indigenous peoples shifted from trade, security, and land surrender for settlement to “civilizing” programs carried out by Indian Affairs.
Reserves started in 1850 with the Robinson-Huron and Robinson-Superior treaties, which created 21 reserves and opened up chunks of land for settlement. Annual annuities were established (treaty payments), and Indigenous peoples were promised they would continue to have hunting and fishing rights in the area – the first time this had
been addressed in a treaty. This issue hadn’t really come up before because there wasn’t a question that Indigenous peoples would continue to support themselves on the land.
Treaty-making during this period was incredibly acrimonious and shady as heck. The relationship between Indigenous peoples and the British was increasingly one of conflict rather than cooperation: intrusive settlement, land speculators, disruption to traditional trade routes, relocations of entire communities (such as many Mohawk after the American Revolution), Indian Affairs asshattery – not good times at all.
Constitutional recognition
Treaties gained Constitutional recognition with their inclusion in the Constitution Act, 1982.
According to Section 35(1), “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”22
So, treaty rights that already existed before 1982, as well as any treaties signed afterwards, are recognized and affirmed by the Constitution in section 35. This means that simply scrapping them isn’t actually an option. If Canadians wanted to completely get rid of the treaties, they’d have to change the Constitution itself. No easy task, as we saw in Meech Lake and then Charlottetown.
But, fear not! The courts, while at times taking an expansive approach to treaty interpretation, have also been steadily eroding treaty rights since 1982.
Interpretation of treaties
Case law has fleshed out the way in which treaty interpretation should be carried out in Canadian law. Too many Canadians believe these are simply contracts, and the only binding aspects of treaties are the words written on paper. Though the Canadian courts do not fully accept Indigenous peoples’ interpretation of the treaties, it is at least clear treaties must be understood outside of the four corners of a signed document.
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