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Treaty Reconciliation - Kiiway-Dibamahdiiwin1

Introduction:

In this paper I hope to convey some understandings of Treaty as regarded by First

Nations.2 And it is daunting to attempt to bring discussion to the Treaties which is

acknowledged to rest between the First Nations peoples’ signatory to Treaty and the

Crown as parties to Treaty. This presentation3 is not based solely on one Nations’ legal

traditions and seeks to provide a discussion of the complexity of Treaty as promises –

“for as long as the Sun shines, the Grass grows, and the Waters flow.” The Indigenous

peoples’ perspective is often stated to be a Treaty relationship founded on a nation to

nation basis and by its “consensual treaty relationship”4 obligates mutual responsibility

and respect. Wahbung Our Tomorrows, 1971 5 said it best:

“We would emphasize for the purpose of clarity and to avoid any misunderstanding that the Indian tribes of Manitoba are committed to the belief that our rights, both aboriginal and treaty, emanate from our sovereignty as a nation of people. Our relationships with the state have their roots in negotiation between two sovereign peoples. “There can be no delegation of authority or responsibility by the federal state to the province without our consent. There can be no deviation or alteration in this relationship without mutual consent. The Indian people enjoy “special status” conferred by recognition of our historic title that cannot be impaired, altered or compromised by federal-provincial collusion or consent. We regard this relationship as sacred and inviolate.”

1 Treaty: settlement of debt obligation, interpretation of Pikangikum /Little Grand Rapids Anishinaabeg. 2 The constitutional/legal term “Aboriginal” or “Indian” is used in reference to Statutes, Court cases or reference sources. Indigenous peoples, First Nations and Anishinaabeg are applied interchangeably. 3By Irene Linklater, B.A., LL.B, Executive Director/in-house legal advisor Assembly of Manitoba Chiefs Secretariat Inc., for CBA-National Aboriginal Law Conference “Perspectives on Treaties between Aboriginal Peoples and the Crown”, April 28-29, 2011, in Winnipeg, Manitoba. 4See James (Sa’ke’j) Youngblood Henderson, “Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition” (Saskatoon: Purich Publishing Ltd., 2008). 5 Wahbung Our Tomorows: By the Indian Tribes of Manitoba, (Winnipeg:1971, Manitoba Indian Brotherhood; Reprinted , Manitoba Indigenous Cultural Education Centre, 2011) response to the Government of Canada’s “White Paper 1969, to eliminate Treaties, at 40.

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I will be presenting the approach that Treaty reconciliation is achieving

understandings to interpretations and implementation of Treaties, rights and obligation,

with acknowledgment, respect and good faith, to learn from past mistakes. Above all, it

must uphold the Original relationship and promise for regeneration of the relationship on

an annual basis for future generations and for all time. The approach proposed to getting

to this goal is to follow a negotiated process that would incorporate both Crown laws and

Indigenous law traditions based on consensual relations.

It is well documented and known to oral tradition and history that immediate

challenges to interpretation and implementation of the Treaties arose by surrounding

political, legal and societal developments leading to breaches of Treaty, with some either

still to be acknowledged or at implementation stages. From 1871 to 1906, the Crown and

the First Nations entered into Treaties that encompassed territories within the current

boundaries of the Province of Manitoba. Treaty 1, was entered into in 1871, as the first

of the Numbered Treaties with Treaty 2, in 1872, Treaty 3, in 1873, Treaty 4, in 1874,

Treaty 5, in 1875 Treaty 6, in 1876 and Treaty 10, in 1906.

Several Government mandated Commissions have studied and made

recommendations to address the Treaty based grievances of First Nations to the injustices

experienced including more recently the Aboriginal Justice Inquiry in Manitoba (1991)6

on the “administration of justice and Aboriginal people” and the Report on the Royal

Commission on Aboriginal Peoples (1996)7 concerning “government policy with respect

to original historic nations in this country.”

6 Report on the Aboriginal Justice Inquiry of Manitoba, 2 Volumes (1991), under the Public Inquiry of the Manitoba Government into the administration of justice and Aboriginal people in response to the trial of two men in 1987 on the 1971 murder of Helen Betty Osborne citizen of the Opaskwayak Cree Nation in The Pas, and the death of J.J. Harper Executive Director of the Island Lake Tribal Council in Winnipeg by a police officer. In 1999 the Aboriginal Justice Implementation Commission was established to review the AJI recommendations tabled its Final Report 9June 2001) noting ten priority areas around three themes in Aboriginal rights, reform of the justice system and the need for preventative measures. 7 Report of the Royal Commission on Aboriginal Peoples (RCAP Report, Vol. 1, Looking Forward, Looking Back (Ottawa: Supply and Services Canada, 1996)

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With the spread of Newcomer settlements across the territories the Crown entered

into Treaties with the original inhabitants occupying these lands now named Canada.

The written terms of the Treaties speak of the Indigenous peoples ‘surrendering lands’ to

the Crown, and this has been interpreted to have freed up of surrendered lands for New

comer settlement and development, the people of the Settler nation. The St. Catherine’s

Milling case8 addressed this matter which had a major impact on all Treaties, and all

without the participation of the First Nations of Treaty where the dispute raged between

the Federal government and the Province of Ontario. The Privy Council decided in favour

of the Province ruling it held exclusive jurisdiction over resources based on an

interpretation of section 109 of the British North America Act, 1867.9

The interpretation and implementation of British legal traditions have been

challenged by the First Nations dating as far back as to colonial times well before western

situated Treaties. The Crown governments and Courts have relied on a literal

interpretation of the written version of the Treaty and related documents denying any

commitments to Treaty obligations beyond the express wording.

The principles for any acquisition of Indian lands provided only the Crown could

acquire Indian lands and only by voluntary cession made by the Indians by consent. The

insistence of a consensual transaction10 on the part of the Crown at the time was due to

the recognition of the military strength of the Indian and the security of the colony

necessitated fair dealing. A point of clarification here is that the “reserved lands”

recognized by the Royal Proclamation of 1763 (any unceded lands in Indian possession)

8 St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.) at 652 states “By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purposes as to Her Majesty might seem fit, “to the Government of the Dominion of Canada.” for the Queen and Her successors for ever….and the surrender is in n substance made to the Crown….it is abundantly clear that the commissioners who represented Her Majesty, whilst they had full authority to accept a surrender to the Crown, had neither authority nor power to take away from Ontario the interest which had been assigned to that province by the Imperial Statute of 1867.” 9 British North America Act, 1967 (Constitution Act, 1867 (UK), 30 & 31 Vict. C.3, reprinted in R.S.C. 1985, App. II No. 5. 10 See Darlene Johnston, The Taking of Indian Lands in Canada: Consent or Coercion? (Saskatoon: University of Saskatchewan Native Law Centre, 1989): and RCAP Supra Note 6, 119-79.

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are not the same as the meaning of “reserves” in the Indian Act11. The Proclamation

recognized all unceded Indian lands as being reserved for Indian use and possession.

Alexander Morris, Treaty Commissioner who negotiated several of the numbered

Treaties writes:

“One of the gravest of the questions presented for solution by the Dominion of Canada, when the enormous region of the country formerly known as the North West Territories and Rupert’s Land, was entrusted … to her rule, was securing the alliance of the Indian tribes, and maintaining friendly relations with them.”

It is no longer disputed by the successors of the colonial governments or countries

of the United Nations that Indigenous nations existed on the lands and territories now

referred to in the international world as Canada. Further more, it is recognized that

Treaties existed amongst and between the First Nations peoples prior to the arrival of the

Settler nation from Great Britain, during the colonial settlement and to present times.

In R. v. Sioui 12Justice Lamer in his judgment citing Worcester v. Georgia13,

reconciled that the Royal Proclamation of 176314 established the acknowledgment of the

nation to nation relations between the Crown and First Nations. The ruling confirmed that

the period prior to the proclamation:

“… [B]oth Great Britain and France felt that the Indian nations had sufficient independence and played a large enough role in North America for it to be good policy to maintain relations with them very close to those maintained between sovereign nations. The mother countries did everything in their power to secure the alliance of each Indian nation and to encourage nations allied with the enemy to change sides. When these efforts met with success, they were incorporated

11 Ibid, Darlene Johnston. 12 R. v. Sioui,[1990] 1. S.C.R. 1025 13 Worcester v. Georgia, 31 U.S. 515 (1832) 14 Issued on October 7, 1763, by King George III, and reproduced in R.S.C. 1985, App. II, No. 1. [Royal Proclamation]

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in treaties of alliance or neutrality. This clearly indicated the Indian nations were regarded in their relations with the European nations which occupied North America as independent nations.”

Confederation of the four colonial provinces by the British North America Act,

1867 formed an earlier geographic Canada as an independent nation from British rule.

Section 91 (24) of the Constitution Act, 1867 confers exclusive jurisdiction over “Indians,

and Lands reserved for the Indians” to Parliament.

The other matter related to exercising jurisdiction or constitutional responsibility

is obligation and authority. The evolution of the ‘fiduciary’ relationship between the

Crown and First Nations is historical and also finds expression in the Royal Proclamation

1763 and common law court judgments. In particular, the obligations transferred to

Canada from Rupert’s Land and the North West Territory in 1870 and the impact of the

Numbered Treaties. The agreement between Britain and Canada that transferred the

Crown’s interest in Rupertsland was an undertaking by Canada that it would treat the First

Nations living in the area covered by the Hudson’s Bay Charter fairly and equitably.15 This

agreement places a constitutional duty on Canada regarding its relations and treatment of the

First Nations.

On their part, the First Nations today contend there was no surrender of lands and

resources or interest in the lands and dispute go further to dispute the legitimacy of the

Natural Resources Transfer Agreement.16

15 Schedule A - Rupertsland & Northwestern Territory Order, June 23rd 1870, “That in the event of your Majesty’s Government agreeing to transfer to Canada the jurisdiction and control over the said region, the Government and Parliament of Canada will be ready to provide that the legal rights of any corporation, company, or individual within the same shall be respected, and placed under the protection of Courts of competent jurisdiction. And furthermore, that, upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines” 16 Preamble - Manitoba Memorandum of Agreement, Natural Resources Transfer Agreement, December 14th, 1929 “ a transfer would be made by Canada to the Province of the unalienated natural resources within the boundaries of the Province subject to any trust existing in respect thereof and without prejudice to any other interest other than that of the Crown in the same.”

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If the First Nations did not cede or surrender all of the interests they had in the

land then this constitutional undertaking of fairness and equitability will have been

breached. This breach would have occurred first at the treaty negotiations where it is

documented in the records of Parliament and records of Treaty Commissioner, despite

lengthy elaborate negotiations and participating in the ceremonies brought by the

Indigenous peoples, the Dominion negotiators had the First Nations acknowledge or sign

documents by ‘markings’ even though the terms and conditions were often drafted well

before the treaty negotiations.

Measures, through negotiation or litigation are still being taken by First Nations to

seek redress in the outstanding implementation of Treaties and filing claims. The Treaties

entitled the members of each First Nation treaty signatory to a tract of land for their use

and benefit and occupation with certain allocation of acres for each Band member or

family head. However, the acreage set aside by the Crown in each Treaty did not reflect

the actual populations which resulted in outstanding land entitlements.

Aboriginal title is based on the continued occupation and use of the land as part of

the aboriginal peoples’ traditional way of life. This sui generis interest is not equated

with fee simple ownership nor can it be described with reference to traditional land law

concepts. It is an interest collectively held and is inalienable except to the Crown and, in

dealing with this interest, the Crown is subject to a fiduciary duty to aboriginal peoples17.

Delgamuukw also affirmed the principle that Aboriginal and Treaty obligations and rights

are collectively held by all citizens of First Nations. This entitlement vests to the future

generations of each Indigenous Nation and to the present generation, which has a sacred

trust to protect and preserve the obligations and rights and interests of future generations.

This case provides an approach for the Treaty signatories to take to achieving

understanding of the spirit and intent of Treaty. Perhaps this respects a view of Treaties

17 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

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that;

that supports their existence as living agreements founded on the principles of respect,

mutuality within a consensual relationship.

Royal Proclamation, 1763 – Treaty Making Process: Foundation for Reconciliation:

Treaties and aboriginal title and pre-existing sovereignty of the Indigenous

peoples of these territories on this continent were recognized by the Royal Proclamation

of October 7, 176318. This proclamation set out a constitutional arrangement for new

territories and governance under British Imperial policy for settlement in North America

by newcomers, free land grants to soldiers, and the protection of unceded Indian lands

and prohibitions on private purchase. It also set out the Treaty making process which

serves as the foundation for treaty reconciliation. It has received judicial recognition as

being the force of statute and still remains relevant today enshrined in the Constitution

Act, 198219 section 25 that recognizes that dealings with the Indigenous peoples remains

through the treaty making process, reading in part:

25. The guarantee of the Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October, 7, 1763; …

The Proclamation was an Executive Order having force and effect of an Act of

Parliament and described in St. Catherine’s Milling20 as the “Indian Bill of Rights”

noting

“In respect of this Proclamation, it can be said that when other exploring nations were showing a ruthless disregard of native rights England adopted a remarkably enlightened attitude towards the Indians of North America. The Proclamation must be regarded as a fundamental document upon which any just determination of original rights rests.21

18 Royal Proclamation note 7 19 Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 Section 25. 20 St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.) at 652 21 J. Judson in Calder v. Attorney General of British Columbia (1973), 34 D.L.R. (3d) 145 (S.C.C,)

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To reconcile by way of the Treaty relationship is as basic as reinvigorating the

principles of the treaty making and establish nation to nation relationship founded on the

spirit and intent of the Treaties as set out in the Royal Proclamation of 1763 and

entrenched by s. 25 of the Constitution of Canada, 1982.

First Nations contend that certain principles regarding understandings of access to

natural resources and revenues is contained in their inherent right that survived in

Treaties and that Treaties principles include; Treaties are bilateral between the Treaty

Signatories, the First Nation and the Crown; Sharing of land, not surrender, which did not

severe relations with the lands or resources; Assert first rights of benefit and

responsibility that were not extinguished either by Treaty or the Natural Resources

Transfer Act, 1930 and as such cannot be diminished the Act or the Province; given it

was created by the Crown without consultation to or consent of First Nations.

RCAP states the first objective to fulfillment of the Crown’s obligation through

Treaty implementation as the achievement of ‘justice.’ Secondly, to set a foundation

through ‘recognition of the spirit and intent’ of the treaties as fundamental to reconciling

the nature and content of the Treaties as understood by each Treaty party. Thirdly, on the

basis of common ground established by the solemnity of the treaty making and mutual

respect and honor to the Treaties, to revitalize Treaties for implementation. The report

recommends four key principles to guide the Treaty parties: “renewed relationship,

mutual recognition, mutual respect, sharing and mutual responsibility”.22

In 1876 the consolidated Indian Act came into force and included the surrender

requirement in section 25

22 Supra note 6, See RCAP (Vol.1. Chpt. 16)

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25. No reserve or portion of a reserve shall be sold, alienated or leased until it has been released or surrendered to the Crown for the purposes of this Act,”

Control over westward expansion by 1867 drove the colonial government to

annex Ruperts Land and the North Western Territory as central to empire-building for the

new Confederation as well as taking control of the question of how to deal with Indians

relations. The British North America Act, 1867 provided for annexation by section 146:

“146. It shall be lawful for the Queen, by and with the Advice of Her Majesty’s Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, or any of them, and British Columbia, to admit to those Colonies and Provinces, or any of them into the Union, and on the Address from the Houses of the Parliament of Canada to admit Rupert’s Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.”

The nature of the consent principle has been gradually eroded and by the 1951

Indian Act revision, although the surrender requirement included consent of the Band

council in many cases it allows for the Minister to dispose of lands ever increasing

categories of exceptions, from wild grass and dead timber to taking up for public

purposes, without Indian Band council consent. In addition, the regulation powers of the

Governor in Council extended to disposals of surrendered mines that included granting of

surface rights without Band council consent. In addition, where the policy had required

“a majority of the electors of the band” consent, the revised Act granted power to the

Minister to call a second surrender meeting and obtained a majority of the electors who

cast their vote as the first meeting – this second vote is deemed to constitute consent the

assent of the majority of the Band electors and remains in effect to date.23

23 Supra Note 10 Darlene Johnston.

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A greater departure to the dual consent principle is found in the expropriation

clauses or “Taking Provisions” for purpose-specific “for the purpose of a railway, road,

public work, for work designed for any public utility.” states:

“35. (1) Where by an Act of the Parliament of Canada or a provincial legislature His Majesty in right of a province, a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein.”

The legal approach to understanding the rights of Indigenous peoples in Canada

relies on the common law which views lands as either being in the possession of an

‘organized society’, and if no organized society is deemed to have pre-existed on the

lands then it is open for newcomers or settlers to claim the territories. As time went by

the newcomer societies assumed sovereignty over the territories they claimed as having

been settled. The earliest case examining the legal basis for the recognition of aboriginal

rights was Calder24 which began as a land claim later entered litigation in 1968. The

Nisga’a peoples’ case was lead by Frank Calder against the Attorney General of British

Columbia. Six of the Supreme Court of Canada judges decided the indigenous peoples

inhabiting the disputed territories (now referred to as the Province of British Columbia)

had occupied and lived on the lands as an organized society and acquired rights in their

traditional territory - and held aboriginal title to their traditional territories as aboriginal

rights at the time of the arrival of newcomers. Three judges determined the Nisga’a’s

aboriginal rights had been extinguished since the time of contact by colonial land

enactments, and three decided these rights had not been extinguished. The seventh judge

turned to a procedural technicality that the A.G.B.C could not be sued until the Attorney

General first granted fiat to the Nisga’a to then sue.

24 Calder v. Attorney General of British Columbia [1973] S,C,R, 313

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Oral Traditions, Oral Histories and Documented Societies: Reconciliation

Indigenous peoples generally share a common oral society system connected to

institutions which is in contrast with the newcomer Settler nation25 society as primarily

reliant on the documented written ways related to institutions to evidence their peoples

knowing. Knowledge and understandings of Treaties are carried and transmitted by

many Indigenous peoples in various forms through customs, traditions, practices,

ceremonies, oral tradition, oral knowledge and markings. There exists an

interconnectedness of the teachings and traditional knowledge transmission, with the

Indigenous languages, way of life, beliefs, and human beings relation to the lands and the

universe as spiritual

First Nations perspectives and accounts on Treaties convey an understanding that

is fundamentally a sacred trust relationship founded from the Indigenous people’s

perspective in relation to Creation the universe, territories lands and waters with special

localities or points of connection in the region or territories experienced as a balanced

orderly system. The regard to the centrality of ceremonies to four directions, upward to

the skies and downward to the earth and to the centre as right as peoples to self-

determination that is Creator given. The telling of Treaties is made to present views in a

manner that respects the diversity of First Nations perspectives, goals and priorities.

Conventional oral history research practices and theory development must be

mindful of the cautions raised by First Nations Elders and spiritual teachings. First

Nations protocols of oral history and recounting of the treaty process to the making of

Treaties are enveloped with a transfer of the knowledge to carriers entrusted over the

generations on the ways of their peoples. This presents conflicts against the current

Canadian institutions and gatekeepers of academic theories and the judicial institutions

that are based on written record. The responsibility for safeguarding a good faith

25 Settler Nation refers primarily to the societies of the British Crown-English settlement and partly to French settlement and later the Government of Canada.

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approach for achieving understandings of the Treaties lies with each beneficiary of the

Treaty.

The different ways of communication, records and history keeping of each Nation

to retain understandings of Treaty remains to be fully reconciled. The failure to

acknowledge the legitimacy of First Nations oral tradition and oral knowledge by

governments and until recently the judiciary has created barriers on the exercise of

authority and jurisdiction over their lands, resources and populations. These measures of

control were created without consent or consultation of the First Nations which served to

disposes their political, military, economic, social and legal traditions thorough colonial

and current policy, statutes and laws.

Indigenous peoples have their way of defining and classifying knowledge.

Indigenous knowledge shared by Elders teachings does not separate law from spirituality,

politics, economics and social relations. In the research partnership between the

Assembly of Manitoba Chiefs and the Treaty Relations Commission of Manitoba on an

Oral History Project, the draft writings of the Elders speak to spiritual principles

underlying all knowledge.26

The First Nations Elders have cautioned that an understanding of the meaning of

the terms ‘spirit and intent’ must not be defined or be singularly based on western legal

terminology but must be respectful of the understandings from the Indigenous collective

perspective and legal traditions and laws. Elders of many forums have consistently

expressed the view that the Treaties are not those defined by the Canadian government

written text. They speak of the written version or the ‘papers’ as the Government view.

They urge for a review to an understanding of the totality of the oral agreements made

between the Crown and First Nations to add to the true intent and spirit of those Treaties.

Elders have spoken of the Treaties, not as a ‘surrender of lands’ but agreement to ‘share

26 Treaty Relations Commission of Manitoba created by federal Order in Council in 2005 was renewed for a three year term in April 2011. The Oral Histories Project began in 2008 and is pending publication release of the first of four volumes by April 2011.

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the lands’ to a certain depth of the earth and to benefit from the ‘living Treaties’ for the

continued survival of the future generations and protections to be provided by the Queen.

There remains, a difference of opinion on the interpretation of the terms of the Treaty that

has resulted in some cases bringing the Treaties to court, contrary to the Elders cautions.

There is no guarantee that a negotiation process will result in better outcomes.

Indigenous scholars have a different way of defining and classifying knowledge.

Indigenous knowledge is not neatly compartmentalized in rigid disciplinary confines –

when Elders teach they do not separate law from politics, economics, social relations or

religion. Spiritual principles underlie all knowledge. Dr. Winona Wheeler, a member of

the Fisher River Cree Nation, Manitoba was hired by the Assembly of Manitoba Chiefs

and the Treaty Relations Commission at the commencement of the oral history project.

Dr. Wheeler had explained that in her expertise and experience in conducting oral

histories, the reason for concern shared by First Nations and Elders in placing oral history

and oral traditions into written form is a result of the narrow definition given to ‘oral

history’ as being personal reminiscences (life histories, eye-witness accounts, personal

stories) as ‘oral history’. She noted that all other kinds of oral narratives are seen as ‘oral

tradition’. The impact of this classification denies the historical value of stories for the

peoples affected regarding events that happened in the distant past. In the anthropological

view ‘oral tradition’ are deemed to be folklore which consists of myths, and stories about

supernatural characters and events. This approach defines Indigenous oral transmission

accounts of events and persons from the distant past as ‘legends’ not history. Legends are

generally believed to be half truths as “folk beliefs and superstitions”27

The expertise and knowledge shared by Dr. Wheeler is appreciated and it was

encouraging to the Elders to have a First Nation member providing information from an

academic basis to become aware of the pitfalls and challenges facing oral history and oral

traditions regarding Treaty knowledge and transmission. This is a critical area that

requires further research support with Indigenous Elders to continue. In addition the

27 See Serenda Nanda, Cultural Anthropology 5th ed. (Belmont, CA: Wadsworth Publishing Company, 1994), at 404.

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support of the Crown is required to obtain direct archival research and information

technology tools to Treaty documentation and other related information housed in Britain

Reconciliation of Differing Understandings:

One of the most disputed terms by many First Nations in the written version of

the Treaties as noted previously is the statement that the First Nations during the treaty

making process “ceded, released and surrendered” interests in the lands covered by the

Treaty. In return, it is written the government agreed to provide certain items in return;

annuity payments e.g., $4 or $5 a year per individual; to provide reserves based on each

head of family allocation; and the continuation of hunting trapping and fishing rights.

According to the written document these rights are “subject to such regulations as may

from time to time be made by the government of the country” and limitations to land

“tracts as maybe required or taken up from time to time for settlement, mining,

lumbering, trading or other purposes.” The legal interpretation to this clause posits that

the Indigenous peoples recognized they were ‘surrendering sovereignty’ over the lands in

question when they entered into treaty or signed the treaty documents presented by the

Crown officials.

The Crown government representation of its records generally claims the Crown’s

officials provided all the necessary interpretation and translation of the English language

including legal terminology used during the treaty process. Furthermore, that the original

intent of the negotiation or statements of the Crown representatives were well understood

by the Indigenous peoples. It is assumed the Settler nation’s sovereignty claim displaced

the Indigenous nationhood to laws and governments.

Much has been said or written by academics, archivists, scholars, to list a few, as

to differing reasons held by the First Nations and the Crown for entering into the Treaty

process as to expectations and what benefits accrued to the parties – based on the records

of government officials. In particular, given the different views as to the legitimacy or

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the outstanding business of the Natural Resources Transfer Act, 193028 and

overwhelming focus on western legal dimensions ascribed by the Imperial British

statutes, Supreme Court of Canada rulings on Treaty, Aboriginal and Title rights, and

decisions on the Crown’s honor, fiduciary and duty to consult and accommodate

Indigenous peoples.

A series of critical post-1982 Supreme Court of Canada rulings regarding the

constitutional interpretation of aboriginal rights first came in the case of Sparrow29 which

determined that section 35 rights are not absolute rights and are limited giving way for

these constitutionally protected rights to be over-ridden by laws construed as being in

conflict with them where those laws are justified as being consistent with the honor of the

Crown.

The repatriation of constitution of Canada under the Constitution Act, 1982 from

the Imperial Parliament to the Parliament and the Legislatures of Canada, also included

the placing of the Canadian Charter of Rights and Freedoms in the Constitution Act,

1982. The constitutional rights of the Aboriginal Peoples of Canada sit within section 35

and are viewed by many First Nations as the confirmation and recognition of indigenous

nationhood as stated in section 35:

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of the Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.30

28 Natural Resources Transfer Act, 1930 (Constitution Act, 1930) 29 R. v. Sparrow [1990] 1 S.C.R. 1075 30 Constitution Act Canada 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 Section 25

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The justification for infringement of aboriginal rights requires proof the over-

riding legislation has a valid legislative objective and that the Indigenous peoples have

been consulted and their rights are considered so as to limit the infringement of the

aboriginal rights, and where possible to provide for compensation for infringement.

An important judicial development arose in Delgamuukw31 in relation to the

rights of Indigenous peoples of Canada. Chief Justice Lamer’s analysis of infringement

and justification elaborated what was stated in Sparrow and Gladstone32 providing that

aboriginal rights gives rise to continuing rights of consultation and this cannot be

infringed without a form of compensation. The six judges decided the Court of Appeal

justice had erred in law in not attaching any weight to the ‘oral histories’ and testimonies

of the Gitksan and Wet’suweten elders and evidence of the “adwaak” of the Gitksan

houses and “kungax” of the Wet’suweten houses. The oral histories continuing to be told

related to their family hunting, fishing and gathering territories in accordance with their

traditional laws and practices. The case was sent back to trial. It is notable that the judges

at both the Court of Appeal and Supreme Court of Canada urged the parties that on

questions of aboriginal title and aboriginal rights, it would be best settled by negotiation

not litigation. On May 11, 2000, for the Nisga’a a treaty was achieved where the parties

in one of the preambles of the Nisga’a Treaty33 states;

“Whereas the Parties intend their relationship to be based on a new approach to mutual recognition and sharing and to achieve this mutual recognition and sharing by agreeing on rights, rather than by the extinguishment of rights;”

In Delgamuukw, the relevant time for assessing aboriginal title based on

occupation having been established was set as at the time of the assertion of sovereignty

31 Delgamuukw note 17 32 R. v. Gladstone [1996] 2 S.C.R. 723 33 See Nisga’a Final Agreement at http://www.nisgaalisims.ca/nisgaa-final-agreement; PDF version is also found on federal government website at http://www.ainc-inac.gc.ca/al/ldc/ccl/fagr/nsga/nis/nis-eng.asp.

http://www.nisgaalisims.ca/nisgaa-final-agreementhttp://www.ainc-inac.gc.ca/al/ldc/ccl/fagr/nsga/nis/nis-eng.asp

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through the Doctrine of Continuity. Earlier cases dealing with Aboriginal fishing and

hunting as sustenance rights had set the time for assessing the custom or practice as an

aboriginal custom or practice at the time of first contact between Indigenous people and

the newcomers. The aboriginal title must have existed at the time of the assertion and

first exercise of sovereignty. Delgamuukw presents encouragement to the parties to

negotiate and not litigate34 moving the parties away from adversarial positions to good

faith interests in Treaties as a means to reconciliation.

The lingering concern to the Privy Council’s interpretation in St. Catherine’s

Milling holding that by virtue of Section 109 of the British North America Act, 186735

that “aboriginal title is an interest other than that of the Province”36 is said to have been

affirmed by Lamer CJ in Delgamuukw.37 Section 109 reads:

“All Lands, Mines, Minerals, and Royalties belonging to the Several Provinces of Canada, Nova Scotia, and New Brunswick a the Union, and all Sums then due and payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.”

The Delgamuukw decision has a fundamental impact on the interpretation of

treaties – supporting the contention the First Nations “did not cede or surrender their title

and rights of the lands and other resources in the territories affected by Treaties” so that

these rights could not be transferred to the province through the Natural Resources

Transfer Act, and also recognizes the value of oral testimony in establishing Treaty First

Nations rights. One other arena for addressing Treaties reconciliation is at the

international level.

34 Delgamuukw note 17 35 Supra note 8 36 Supra note 11 at 58 37 Supra note 7 at para. 175

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International Basis and Treaty Reconciliation:

The United Nations Charter38 created after World War 11 sets out the obligations and

entitlement to rights of the member states that reads in part:

“[We] the people of the United Nations … to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained … united to form a better world.”

Another source for the Treaty parties to be guided is the Government of Canada’s

adoption of the United Nations Declaration on the Rights of Indigenous Peoples39 – the

UN General Assembly states and provides;

“Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character. “Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened relationship between indigenous peoples and States, Article 13 Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons. Article 37 Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive agreements

38See: Charter of the United Nations, www.un.org/en/documents/charter/index.shtml 39 United Nations General Assembly Resolution of 13 September 2007 adopted the “United Nations Declaration on the Rights of Indigenous Peoples. “This followed more than twenty years discussion within the UN system.” The UN Permanent Forum on Indigenous Issues is an advisory body to the Economic and Social Council, with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights.

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concluded with States or their successors and to have States honour and respect such treaties, agreements ad other constructive agreements.

The drafting of the Declaration began through the diligence of the Permanent

Forum on Indigenous Issues to defend the human rights of Indigenous Peoples which is a

consequence of colonization, colonialism, including the dispossession of lands territories

and resources and the imposition of unjust laws and policies. The international advocacy

on the Declaration spanned from 1982 to 1993 and in 1994 to 2006, the United Nations

General Assembly adopted the Declaration on September 13, 2007. It is a

comprehensive affirmation of the collective and individual rights of Indigenous peoples.

Another recent report of UN Secretariat of the Permanent Forum, State of the

World’s Indigenous Peoples40 portrays dire circumstances with regard to economic,

social and cultural conditions. It reports that Indigenous Peoples in the ‘developed’ world

states such as Canada, Australia, New Zealand and the United States ‘live shorter

lifespans, have substandard health care and education, experience higher unemployment

rates than the non-Indigenous society, (highest levels of suicide, incarceration, violent

crime, obesity, type 2 diabetes, tuberculosis and their lands and waters and health care are

negatively by mining and other resource extract industries.)41

Treaty reconciliation provides a leverage for First Nations to be part of the

domestic and global economies to improve the quality of life for the First Nations, in

various ways e.g.; economies building through infrastructure, transportation, energy and

communication systems.

One region, occupied by Indigenous people when the Europeans arrived is

modern day British Columbia where the practice of treaty-making did not occur but

nonetheless settled by British and other European settlement. Although a treaty process

40 The State of the World's Indigenous Peoples is the result of a collaborative effort, organized by the Secretariat of the United Nations Permanent Forum on Indigenous Issues. The Chapters were written by independent experts. See, www.un.org/esa/socdev/unpfii/en/sowip.html. 41 See, www.un.org/esa/socdev/unpfii.

http://www.un.org/esa/socdev/unpfii/en/sowip.htmlhttp://www.un.org/esa/socdev/unpfii

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was put into place this did not result in a treaty result and the First Nations in those

territories pursued litigation in the courts to protect and define their rights.

For reconciliation of a longstanding dispute between the Nisga’a and Canada, the

parties turned to negotiation to resolve the dispute where agreement was reached in a land

claim negotiation with the signing of the Nisga’a Treaty42 (classified by Canada as a

“Modern Day Treaty”). It may be of interest to First Nations to review the Modern Day

Nisga’a Treaty and the function of its elements as one approach to moving to Treaty

reconciliation. Perhaps the Nisga’a experience may serve the Original Treaties a sound

guide as to process and negotiations challenges for interpretation and implementation

matters.

The British North America Act, 1867 assigned exclusive legislative jurisdiction

over Indian reserve lands and resources to Parliament, the federal government is in

42 Supra Note 33. Nisga’a Treaty- Some of the elements of this Treaty includes: land is held in fee simple and not reserve lands under the Indian Act; lands are not lands reserved for Indians under the Constitution; the Canadian Charter of Rights and Freedoms applies to the Nisga’a Government; the Criminal Code of Canada applies; federal and provincial laws of general application continue to apply to the Nisga’a and Nisga’a lands; Nisga’a Government holds jurisdiction over Nisga’a citizens on Nisga’a lands; Indian Act will not apply to Nisga’a except for determining who is a status Indian as defined by the statute; Nisga’a aboriginal rights under section 35 of the Canadian Constitution are recognized as treaty rights; these rights are defined in the Nisga’a Treaty; any rights that may exist in the future are released by the Nisga’a; ownership of lands includes forest and subsurface resources; existing traplines, guide outfitter and angling guide tenures on Nisga’a lands remain under provincial jurisdiction; lands that are outside the Nisga’a Lands are owned by the Nisga’a Government but will be subject to provincial laws; the Nisga’a lands are brought into the Provincial land title system where the Land Title Act will apply; the Province retains full ownership and regulatory authority over water and have a water allocation for domestic, industrial and agricultural needs; all forest resources on Nisga’a lands are owned by Nisga’a and may purchase timber licenses with approval of the provincial Forest Act; annual fishing allocation of salmon of the Nass River and sales are subject to laws of general application; a treaty entitlement to harvest wildlife species and migratory birds with hunting being subject to conservation; Nisga’a have a central Government (Nisga’a Lisims Government) and four village governments; a Constitution, can make laws and provide health, child care and education services and may choose to make laws in these areas that are to be concurrent with the laws of Canada and British Columbia; Nisga’a do not hold exclusive powers; non-Nisga’a citizens can live and participate in elected bodies; policing with the approval of Cabinet and meet provincial requirements; continue to receive fiscal transfers from Canada and British Columbia to provide government services with ability to raise revenues and fiscal arrangements negotiated every five years; a capital transfer from Canada and B.C. to be paid over fifteen years; authority to levy direct taxes, Indian Act tax exemption eliminated over periods of time; Nisga’a enrollment and register of names; dispute resolution provision and if it fails, a recourse to the B.C, Supreme Court.

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91(24) “Indians, and Lands reserved for the Indians.” However, this power is restrained

by section 35 of the Constitution Act, 1982 section 35 provides protection to First Nation

reserve lands from expropriation post 1982.

This Proclamation came about as a result of the conclusion of the Treay of Paris

in 1763 where the British Imperial Crown claimed sovereignty over territories of the New

World. This document incorporated the principle of voluntary consent requirement of

Indian Bands to unceded lands. British colonial government established statutory regime

in the Confederation provinces, Atlantic region, Quebec and Upper Canada (Ontario) and

Lower Canada (Quebec) to govern Indian lands under the Indian Act.

A promise of change was seen in the new Constitution Act, 1982 with the

inclusion of s. 35 whereby the Supreme Court of Canada in two decisions allowed for

flexibility in the Treaty interpretation deeming that otherwise an injustice would result –

“… [T]treaties and statutes dealing with Indians should be given fair, large and liberal construction and doubtful expressions resolved in favour of the Indians, in the sense in which they be naturally understood by the Indians.”43

In his judgment in Delgamuukw, Chief Justice Lamer stated:

“Finally, this litigation has been both long and expensive, not only in economic but in human terms as well. By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts. As we said in Sparrow, at p. 1105, s.35 (1) “provides a solid constitutional base upon which subsequent negotiations can take place”. Those negotiations should also include other aboriginal nations which have a stake in the territory claimed. Moreover, the Crown is under a moral, if not a legal duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet, supra, at

43 Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at para 186.

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para. 31, to be a basic purpose of s.35(1) – “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. Let’s face it, we are all here to stay.” [Emphasis added]

Delgamuukw and Treaty Reconciliation:

A vision of change for reconciliation through implementation of Treaties and

recognition of Aboriginal rights and title must be open to both written documentation and

non-written forms that includes oral traditions. It must be consensual. A movement to

record oral history that began with many Indigenous populations has become

synonymous to a correction occurring, part of which is to rewriting history and a rightful

balance to the place of First Nations based on Treaty in the resource rich traditional

territories in the homeland and to the global market.

The Supreme Court of Canada Delgamuukw44 acknowledged there were

evidentiary difficulties posed by the use of oral history but important still in the

adjudication of aboriginal rights and decided that;

“Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.”

The Court reaffirmed the special evidentiary principles judgment must accord to

oral history which were set out in it decision in Van der Peet45. Trial courts must accord

independent weight to oral history, while recognizing the evidentiary difficulties in

adjudicating First Nations claims”

44 Delgamuukw Note 18 at para 87. 45 R. v. Van der Peet, [1996] 2 S.C.R. 507 at para 98.

23

[T]he trial judge gave no independent weight to these special oral histories because they did not accurately convey historical truth, because knowledge about those oral histories was confined to the communities whose histories they were and because those oral histories were insufficiently detailed….The implications of the trial judge’s reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation. I fear that if this reasoning were followed, the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system….”

Oral history would not need to provide definition and specific evidence of pre-

sovereignty First Nation occupation on the territory in question and need only

demonstrate that current occupation has its origins prior to sovereignty. In addition, the

interpretation of the evidence must give independent weight to the First Nations

perspective regarding practices, customs, traditions and their relationship to the land.

The Court placed oral history on an equal footing with historical documentation

and highlighted the value of oral history as an independent source of proof. Proof of pre-

sovereignty occupation does not require strict adherence to the Rules of Evidence. The

Indigenous peoples are viewed as having written records similar to the Europeans at the

time of British claims to sovereignty. As such Indigenous peoples account of history

contained in their “oral histories and legal traditions” were passed down from generation

to generation orally.

During the period of European settlement, the doctrine of inalienability was a

safeguard against unfair dealings by settlers attempting to acquire aboriginal land and this

made way for treaty-making. This meant that aboriginal title was inalienable except to the

Crown and the Crown had the burden to act as the protectorate between the First Nations

and third parties. In order for title to pass to a third party, the indigenous owners were

required to first surrender the land to the Crown. This created a fiduciary duty upon the

Crown to act on the best interests of the First Nations who entered into Treaty and said to

have surrendered portions of their lands. This obligated the Crown to ensure that

adequate compensation is provided to the Original land owners. The doctrine is relied

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upon by the European nation and later Canada to provide certainty to land titles in

Canada through land grants as the source of proof of title for non-Indigenous

people/Settler society to hold what became the dominion lands held by the Crown.

The First Nation lands are considered collectively held. Lamer C.J.C. decided that

aboriginal land can only be held communally.

“Aboriginal title cannot be held by individual aboriginal persons; it is the collective right to land held by all members of an aboriginal nation.”

The same is understood for Treaties.

Conclusion:

First Nations peoples have had significant successes in major court challenges

although it bears an enormous unnecessary human and financial burden. A direct and

proactive approach that respects the consensual principle and mutuality of benefits and

responsibilities needs to be instilled in the Canadian systems and institutions that seek

renewed Treaty reconciliation and negotiation. There must be the creation of a new

dispute and reconciliation tribunal. This tribunal must be established with a process and

structure without the filter of pre-conditions in policy and narrow interpretations of case

law and Treaties. Foremost, as noted by the Supreme Court of Canada it is for the Crown

and First Nations to seek reconciliation of the pre-existing sovereignty of the Indigenous

peoples and the assumed sovereignty of the Crown articulated in Delgamuukw.46

Guidance by First Nation people’s understandings of the spirit and intent of

Treaties, the United Nations Declaration on the Rights of Indigenous Peoples and

Supreme Court of Canada decisions allows room to ensure that federal polices,

legislation and practices affecting Aboriginal title and rights and Treaty rights are to be

consistent with the laws of each Nation. This underpinning is based on implementing the

46 Supra at note 18

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spirit and intent of Treaties, preservation and enforcement of First Nation rights to the

lands and resources within each First Nations respective traditional territories. To be

exercising powers and authorities over First Nation traditional lands and resources for

present and future generations. Coexistence of Aboriginal title and Crown title demands

that negotiations should be to reconcile pre-existing Aboriginal title with the Crown’s

presence and to ensure the mutual benefit accrues to each of the Treaty parties.

--------------------------------------------------------

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Bibliography

Texts and Studies:

Johnston, Darlene: The Taking of Indian Lands in Canada: Consent or Coercion?

(Saskatoon: University of Saskatchewan Native Law Centre, 1989)

Henderson, James (Sa’ke’j) Youngblood: “Indigenous Diplomacy and the Rights of

Peoples: Achieving UN Recognition” (Saskatoon: Purich Publishing Ltd., 2008).

Serenda Nanda: Cultural Anthropology 5th ed. (Belmont, CA: Wadsworth Publishing

Company, 1994)

Wahbung Our Tomorrows; By the Indian Tribes of Manitoba, (Winnipeg:1971, Manitoba

Indian Brotherhood: Reprinted, Manitoba Indigenous Cultural Education Centre, 2011)

Report on the Aboriginal Justice Inquiry in Manitoba (1991)

Report of the Royal Commission on Aboriginal Peoples (RCAP Report, Vol. 1, Looking

Forward, Looking Back (Ottawa: Supply and Services Canada, 1996)

Cases:

Calder v. Attorney General of British Columbia (1973), 34 D.L.R. (3d) 145 (S.C.C,)

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

Nowegijick v. The Queen

R. v. Gladstone [1996] 2 S.C.R. 723

R. v. Sioui, [1990] 1. S.C.R. 1025

R. v. Sparrow [1990] 1 S.C.R. 1075

R. v. Van der Peet, [1996] 2 S.C.R. 507

Worcester v. Georgia, 31 U.S. 515 (1832)

27

Statutes:

Constitution Act Canada 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c.11

British North America Act, 1967 (Constitution Act, 1867 (UK), 30 & 31 Vict. C.3,

reprinted in R.S.C. 1985, App. II No. 5.

Natural Resources Transfer Act, 1930 (Constitution Act, 1930)

Royal Proclamation, 1763, Issued on October 7, 1763, by King George III, and

reproduced in R.S.C. 1985, App. II, No. 1.

Preamble - Manitoba Memorandum of Agreement, Natural Resources Transfer

Agreement, December 14th, 1929

Schedule A - Rupertsland & Northwestern Territory Order, June 23rd 1870

Charter of the United Nations www.un.org/en/documents/charter/index.shtml

Nisga’a’ Final Agreement, http://www.nisgaalisims.ca/nisgaa-final-agreement

United Nations Declaration on the Rights of Indigenous Peoples, adopted by UN General

Assembly Resolution of 13 September 2007

www.un.org/en/documents/charter/index.shtml

United Nations Indigenous Peoples Permanent Forum: The State of the World’s

Indigenous Peoples Report, 2009: www.un.org/esa/socdev/unpfii/en/sowip.html.

http://www.un.org/en/documents/charter/index.shtmlhttp://www.nisgaalisims.ca/nisgaa-final-agreementhttp://www.un.org/esa/socdev/unpfii/en/sowip.html