Over the years, court cases have established the following principles of interpretation:
Restrictions to Aboriginal rights, and extinguishments (termination) of those rights under a treaty, must be narrowly construed. These should not be rights that are easy to get rid of.
Treaties should be liberally construed, and ambiguities resolved in favour of Aboriginal signatories.
“Extrinsic” evidence of the historic and cultural contexts in which a treaty was made can be offered.
The onus of proving an Aboriginal right is restricted or extinguished under treaty, falls to the party making this claim.
Aboriginal treaties are a sacred undertaking, an exchange of solemn promises between the Crown and Aboriginal nations. The courts must hold those promises in high regard.
Treaties must be interpreted in a manner that preserves the honour of the Crown.
Oral promises made during the making of treaties are part of those treaties. The oral history of Aboriginal signatories has weight when figuring out what those oral promises were.
A static approach to treaty rights should be avoided and these rights may be exercised in contemporary ways. (For example, fishing with a rod and reel instead of gill nets.)23
All of this sounds pretty promising, but it hasn’t exactly resulted in the recognition that Indigenous peoples hoped for when the Constitution was repatriated in 1982.
NOTES
1.John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002); John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010); John Borrows, Drawing Out Law: A Spirit’s Guide (Toronto: University of Toronto Press, 2010); John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016). John Borrows (Kegedonce) is an Anishinaabe law professor specializing in Indigenous legal rights and comparative constitutional law. Basically, he studies and explains Indigenous law – the legal orders of Indigenous peoples rather than Canadian law as it relates to Indigenous peoples. If you are interested in such things, you should read his books (and other things he has written).
2.Shiri Pasternak, “The Fiscal Body of Sovereignty: To ‘Make Live’ in Indian Country,’” Settler Colonial Studies (2015), 1–22, http://www.shiripasternak.com/category/academic/. Seriously, you should read her work.
3.Ed Bianchi is a settler program manager for KAIROS, an ecumenical movement for ecological justice and human rights. KAIROS created a really fantastic (free) tool called the “Blanket Exercise,” which helps “share the historic and contemporary relationship between Indigenous and non-Indigenous peoples in Canada.” It has been used in many classrooms and professional settings, and I cannot recommend it highly enough as an educational tool: http://kairosblanketexercise.org/.
4.Chelsea Vowel, Niigaan: In Conversation, discussion with Peter Larsen, July 11, 2013, http://niigaan.ca/tag/chelsea-vowel/.
5.Royal Commission on Aboriginal Peoples, “Stage Two: Contact and Co-Operation,” vol. 1, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Queen’s Printer, 1997), 99–130, accessed November 23, 2015, http://www.collectionscanada.gc.ca/webarchives/20071124124640/http://www.ainc-inac.gc.ca/ch/rcap/sg/sgm5_e.html.
6.“The Inherent Right to Self-Government Timeline,” fngovernance.org, accessed December 3, 2015, http://www.fngovernance.org/timeline/inherent_tline. This is a wonderful interactive timeline looking at self-governance among Indigenous peoples in Canada.
7.RCAP, vol. 1, 101.
8.Tom Porter (Sakokweniónkwas), And Grandma Said: Iroquois Teachings As Passed Down Through the Oral Tradition (Bloomington: Xlibris Corp, 2008); Paul Wallace, White Roots of Peace: Iroquois Book of Life (Santa Fe: Clear Light Publishing, 1990); Tekaronianeken Jake Swamp, “Tekaronianeken Jake Swamp – Peacemaker, Part 1,” YouTube video, First Nations Technical Institute, WINHEC Conference, 2009, https://www.youtube.com/watch?v=ghlqlhs0CnU; Tekaronianeken Jake Swamp, “Tekaronianeken Jake Swamp – Peacemaker, Part 2,” YouTube video, First Nations Technical Institute, WINHEC Conference, 2009, https://www.youtube.com/watch?v=zfDRMgrBzgU. These are videos in a series featuring Tekaronianeken Jake Swamp, as he tells the story of the Peacemaker.
9.Robbie Robertson, Hiawatha and the Peacemaker, illustrated by David Shannon (New York: Abrams, 2015).
10.Neighbours of the Onondaga Nation, “Two Row Wampum Renewal Campaign,” honorthetworow.org, accessed December 2, 2015, http://honorthetworow.org/learn-more/history/. The year 2013 marked the 400th anniversary of the Two-Row Wampum, and a number of resources were compiled to give context to the original agreement.
11.Onondaga Nation People of the Hills, “Timeline – Onondaga Nation,” onondaganation.org, accessed November 2nd, 2015, http://www.onondaganation.org/history/timeline/. A timeline of events pertinent to the Haudenosaunee, from a specifically Onondaga perspective, can be found above.
12.Jon Parmenter, “The Meaning of Kaswentha and the Two Row Wampum Belt in Haudenosaunee (Iroquois) History: Can Indigenous Oral Tradition be Reconciled with the Documentary Record?” Journal of Early American History 3, no. 1 (2013): 82–109, http://honorthetworow.org/wp-content/uploads/2012/01/The-Meaning-of-Kaswentha-and-the-Two-Row.pdf. This article cites an incredible amount of sources for further study, if this is something you’d like to know more about.
13.Robert W. Venables, “Polishing the Silver Covenant: A Brief History of Some of the Symbols and Metaphors in Haudenosaunee Treaty Negotiations,” part 1 (2008), http://honorthetworow.org/wp-content/uploads/2013/03/Venables-on-the-Covenant-Chain-of-Treaties.pdf; Venables, part 2, http://honorthetworow.org/wp-content/uploads/2013/03/Venables-on-the-Covenant-Chain-of-Treaties-part-2.pdf; Venables, part 3, http://honorthetworow.org/wp-content/uploads/2013/03/Venables-on-the-Covenant-Chain-of-Treaties-part-3.pdf; Venables, part 4, http://honorthetworow.org/wp-content/uploads/2013/03/Venables-on-the-Covenant-Chain-of-Treaties-part-4.pdf. This is an article in four parts that discusses the Covenant Chain treaties in great detail.
14.Ibid., parts 1, 3, accessed December 2, 2015.
15.See note 5, 123.
16.Alain Beaulieu, and Roland Viau, The Great Peace: A Chronicle of a Diplomatic Saga, illustrated by Francis Back (Ottawa: Canadian Museum of Civilization, 2002).
17.The Wabanaki Confederacy is comprised of the L’nu (Mi’gmaq/Micmac/Mi’kmaq), Wolastoqiyik (Maliseet/Malicite), Pestomuhkati (Passamaquoddy), Abenaki, and Penawapskewi (eastern Abenaki/Penobscot).
18.Canadian Heritage, “Speaking About Our Land-Treaty Relationship,” aboutourland.ca, accessed December 2, 2015, http://www.aboutourland.ca/sites/default/files/files/resources/treaty%20relationship_0.pdf; Canadian Heritage, “Speaking About Our Land-Treaty Relationship,” aboutourland.ca, accessed December 2, 2015, http://www.aboutourland.ca/search-resources/results/taxonomy%253A218. The first source is a high-resolution map with excerpts from the various Peace and Friendship Treaties and the second offers high-resolution texts of the various treaties, which can be downloaded and printed.
19.Thomas Isaac, Aboriginal Law: Commentary, Cases and Materials, 3rd ed. (Saskatoon: Purich Publishing, 2004). Aboriginal case law continues to evolve, so you may need to catch up on more recent decisions.
20.Indigenous Affairs and Northern Development Canada, “Historical Treaties of Canada,” accessed December 3, 2015, http://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/htoc_1100100032308_eng.pdf.
21.Anthony J. Hall, “Aboriginal Treaties,” The Canadian Encyclopedia, June 6, 2011, http://www.thecanadianencyclopedia.ca/en/article/aboriginal-treaties/. This is a good resource for a fairly quick, yet comprehensive, overview of the historic context of various treaties I haven’t covered.
22.The Constitution Act, 1982, Schedule B to the Canada Act, 1982 (UK), 1982, c. 11.
23.University of British Columbia Faculty of Law, “Primer: Canadian Law on Aboriginal and Treaty Rights,” accessed December 3, 2015, http://www.allard.ubc.ca/sites/www.law.ubc.ca/files/uploads/enlaw/
pdfs/primer_complete_05_10_09.pdf.
28
The More Things Change, the More They Stay the Same
Numbered Treaties and Modern Treaty-Making
Aboriginal law is very frustrating to study and practice. Despite the name, Aboriginal law is not the study or practise of Indigenous legal traditions; rather, it is the way in which the Canadian state mediates its relationship with Indigenous peoples. Aboriginal law exists squarely within a legal paradigm defined solely by the Canadian state. If Canada deigns to include its interpretation of aspects of Indigenous legal traditions, then it will do so according to its own legal principles, further warping what is almost always already a poor translation to begin with.
If all this were obvious right away, then Aboriginal law would probably not be so frustrating. If it were exceedingly clear to everyone that Aboriginal law is all about a colonial nation retaining its claim to sovereignty – dedicated to shoring up its claim to title in lands throughout Canada – then that understanding alone would be a great improvement. All of us could acknowledge Canada’s entire “legal” approach is based on self-interest, and certain core principles will never truly be up for negotiation as far as Canada is concerned. Those would be very important things to recognize.
It is not the case, however, that this fact is widely understood. That is because Aboriginal law is couched in liberal terms of respect and rights; and, to be fair, I think many of the lawyers and bureaucrats administering the Indian Act (and various other legislative or procedural regimes related to Indigenous peoples in Canada) truly believe they are doing their utmost to make things right. After all, have we not moved far beyond the day of smallpox blankets, forced relocations, military force, residential schooling, and interference?
Ha! Hahahahahahahahahahahaa….ahhhh.
The rhetoric has changed somewhat from the days when men rode around the west carrying boilerplate treaties for signing – but it hasn’t changed that much. Right now, hundreds of settlements are being negotiated across the country to end various claims by First Nations over stolen lands, broken promises, damages, and so on – claims that sometimes go back hundreds of years and have been pursued doggedly by those First Nations to no avail. The way in which these settlements are being negotiated does not involve a substantially different approach from the one Canada took back in the grand old days of historic treaty-making.
The Litigation Management and Resolution Branch
If you ever get the chance to take a look at even a single claim’s history, please do. It is an eye-opening experience. The Department of Justice, in cooperation with Indian Affairs, has a Litigation Management and Resolution Branch (LMRB) that conducts a risk analysis of claims against the Crown by Aboriginal peoples. This analysis often contains a lot of historical research if the claim goes back any length of time. What these documents almost invariably show is that the claim has been pursued almost without pause since the problem first arose.
In legal-sized binders, you will see copies of Band Council Resolutions sent to Ottawa to petition a resolution to the conflict; letters sent by individual chiefs or members of the community; correspondence between Indian Agents and other agencies on the matter; descriptions of protests, actions, negotiations, meetings, promises, studies, more meetings, more resolutions. Hundreds and hundreds of written documents outlining just what the community has done to press its claim, year after year, decade after decade, and, yes, sometimes century after century. It is un-fricking-believable, if you can pardon my language.
This research is undertaken in order to assess what risk Canada faces if the issue were to go to court. When it is complete, Canada may choose to negotiate a settlement, or it may decide it has a good shot at winning the case if it proceeds to litigation. The research done is not necessarily going to be handed over to you without a struggle, but many bands have copies of these document sets pertaining to their own claims, and the research is certainly reproducible if one were to try to follow the threads themselves. Of course, the Department of Justice has a lot more money and resources than the average researcher, but the documents are out there in various archives.
I bring this up because it has really brought home for me how long the struggle has gone on, to no avail. I think there is a perception out there that communities just wake up one day and decide to sue the Government for this thing or the other, but that is not reality. Most communities have long-standing grievances that simply have not been settled. Why?
For a long time, a 1927 amendment of the Indian Act prohibited bands from raising money or using band funds in order to pursue these claims.1 They could not hire lawyers. They could only send letters and try to get someone’s attention. Treaty 11 was signed in 1921, marking the end of the signing of the Numbered Treaties. A great many claims of treaty violations were starting to come forth, and Canada legislated away our ability to seek any recourse. The pass system, enacted in the Prairies but not written into law, helped prevent Indigenous peoples from “collaborating” to pursue grievances, as well. The pass system worked somewhat akin to a “hall pass,” wherein any Indigenous person wishing to leave the reserve had to first ask the local Indian Agent for written permission, and woe to whomever was caught outside the reserve boundaries without one!2 This provision was not repealed until 1951.
The federal government also liked setting up various new hoops to jump through: a Land Claims Commission here, a new specific claims process over there – processes so labyrinthine that even the people running things didn’t quite know how they worked; processes that sometimes spanned decades and often came to uncertain or discredited conclusions. All that work and effort – the research and community consultations – down the tubes, and, “Hey, here’s a new process, wouldn’t you folks like to try out our new and improved way of screwing you for another few decades?”
Surrender clauses
The Numbered Treaties (also sometimes just referred to as historic treaties) were full of surrender clauses. These clauses “surrender” lands and rights, giving them up in exchange for other things offered by the Crown. Here is the text of Treaty 6, which says:
The Plain and Wood Cree Tribes of Indians, and all the other Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors forever, all their rights, titles and privileges, whatsoever, to the lands included within the following limits….3
Signed between 1871 and 1921, every single one of the 11 Numbered Treaties has a similar clause.4 Surrender, cede, release, yield – give up your land forever and ever, and that land now belongs to Canada; thank you very much. The entire purpose of these treaties was to open up land for settlement; so, for Canada, the issue of land became paramount.
Of course, First Nations perspectives, based on the extensive oral negotiations that went on when these treaties were made, differ considerably.
At no time did Treaty First Nations relinquish their right to nationhood, their Inherent Right to determine their own destinies, nor did they allow any foreign government to govern them.
Treaties are not static nor can they be unilaterally defined. They evolve and will continue to evolve for “…as long as the sun shines, the rivers flow, and the grass grows….”5
After the Delgamuukw case was heard by the Supreme Court, the Crown suddenly realized that vast tracts of lands – including almost all of present-day British Columbia, as well as huge swaths in the north, and pretty much everything east of Ontario – probably did not belong to Canada.6 What?!
Since then, a process of modern treaty-making has swung into high gear, not just in British Columbia, but all over the country. Russ Diabo calls these the “termination tables,” and for good reason, as they all seek to terminate outstanding claims.7 In addition, there are specific claims processes, which are different from litigation negotiations, which are different from comprehensive claims, which are different than Tre
aty Land Entitlement processes, and so on. I am not going to explain the differences between all of those; just know that the claims landscape out there is vast, difficult to understand, and not very effective.
There are also other outstanding claims that do not quite fit into any of these categories that may still be under negotiation with Canada. Very, very few of these agreements go to court or get seen widely, but it is a process occurring in deadly earnest in the background.
Anyway, the Government of Canada claims it’s moved beyond surrender clauses in its modern treaties and settlement negotiations. I suppose even they realize it’s too much to say, “If you want us to finally address your longstanding concerns, you have to promise us that this land is ours forever, okay? Okay, so it might not have been up until now, but, whatever, just sign this and surrender it for all eternity so that issue can be settled. By the way, we need to extinguish all your other Aboriginal rights, too.”
Does that mean the Feds have stopped trying to make sure they can say they own all the land in Canada and extinguish Aboriginal rights whenever possible? Pffft. There were surrender and extinguishment clauses in Settlement Agreements even in 2007, like this one from the Metepenagiag Mi’kmaq Nation:
The First Nation hereby absolutely surrenders to Canada, pursuant to the provisions of sections 38 and 29 of the Indian Act, all rights and interests of whatsoever kind and nature which the First Nation and its members and their heirs, descendants, executors, successors and assigns, past, present and future, may have had, or may now have, in the lands described as follows….8
Na. The “kinder, gentler” negotiations are very recent.
Indigenous Writes Page 31