Know Your Rights: A treaty primer for non-natives

Jan 14, 2013

Know Your Rights: A treaty primer for non-natives

by Dru Oja Jay

In Canada today, most people associate treaty rights with Indigenous people. And some consider treaty rights to be "special privileges," which set their recipients apart from mainstream society. In fact, the majority of people living in Canada today have treaty rights and responsibilities.

Thanks to treaties, Canadians have the ability to share the land, move freely about, conduct economic activity, govern themselves in the manner they choose, and maintain their cultural and spiritual beliefs without fear of persecution. Reserve lands remain for the exclusive use of First Nations, but in treaty territory, the rest is shared in one way or another.
In places where treaties are in effect, every building, business, road, government, or other activity is made possible by of a treaty. There are numbered treaties in Ontario, Manitoba, Saskatchewan, Alberta and the Northwest Territories, and a small part of northeastern British Columbia, the peace and friendship treaties in the maritime provinces, the Covenant Chain in Quebec and Ontario, the "Paix des Braves" in northern Quebec,  and the Nunavut Treaty, to name some of the more significant ones. The people working, driving and living (not to mention mining and drilling) in those areas are exercising treaty rights.
In areas without treaties, settler societies exist, to put it charitably, in a sort of legal limbo in relation to both Canadian and Indigenous laws.
A treaty is a mutual agreement between nations, defining their relationship and how it is conducted. Canadians have treaty rights, but those rights cannot be separated from their accompanying obligations: the conditions upon which they have agreed to share the land with the nations who were here first.
As Eskasoni-based treaty scholar Rena Gayde recently put it: "The British, the French, none of them would have entered into a treaty-making enterprise with the Mi'kmaw and Maliseets if they didn't consider us sovereign people.”
Treaties also have a more profound meaning for many nations. “When we talk about this treaty relationship," explains Membertou First Nation treaty scholar Kevin Christmas, "we're talking about the depth of the love and the commitment we have to one another and to our land. Our land defines who we are, and our land gives us what we need.”
Canadians appear to think of treaties largely in commercial terms, as an exchange of money for land that has been concluded, and can be forgotten. In this they follow their government, which has for centuries chosen to ignore its own commitments under the treaties it has signed and under its constitution.
Right up to the present day, Canadian government policy has been at odds with its laws.
The Conservative (and Liberal) Gambit
The Conservative government's recent omnibus budget bill C-45 makes changes to how treaty land is governed, specifically by changing the Navigable Waters Act. Under the law, any such changes must only be done after meaningful consultation with the affected nations. Because it ignores these obligations, parts of Bill C-45 will likely be struck down by courts in several years.
However, the goals of the bill appear to have more to do with short-term industrial development, which will be a fait accompli by the time this gets to the Supreme Court. “The new proposed amendments in Bill C-45 are proof to us that the government holds little stock in our rights and title," Chief Alan Adam of the Athabasca Chipewyan First Nation said in a statement. The Conservatives are, he added, "creating more loop holes for industry to continue annihilating our lands.”
Though Harper's Conservatives have attempted to go further, faster, this is the same gambit that every Canadian government since confederation has used. The Indian Act passed in 1876, and unilaterally made Indigenous people wards of the state. The White Paper, drafted by a Trudeau cabinet minister named Jean Chretien in 1969, attempted to eliminate the treaty relationship and unilaterally assimilate Indigenous nations. From 1876 to the present moment, the thirst of Canadian elites for exclusive access to natural resources has weighed more heavily than honour or the rule of law. 
The truly sordid history of repression by the Canadian nation in service of the dispossession of First Nations – the banning of cultural activities, suppression of economic activityphysical violence, land dispossession, forced relocation, psychological and sexual abuse in residential schools, forced sterilization, and the removal of traditional governments -- testifies to a depleted humanity, yes, but also to a rejection of treaty rights, an attempt to deny Canada's duty towards cooperation and mutual obligation as codified in the treaties.
Ancient history, right?
Treaties have a long history, and Canada would not exist in anything like its current state without them. Far from being antiquated, treaty commitments have been continually renewed since European settlers established relations with Indigenous nations centuries ago.
The peace and friendship treaty established between the British and the Mi'kmaq nation in 1752 was broken almost immediately, but court cases are still being decided on the basis of that agreement today. 
The Royal Proclamation issued by King George III in 1763 recognized pre-existing rights to the land by Indigenous nations. It established that the crown had a fiduciary responsibility to ensure that settlers did not occupy land without an agreement between the crown and the nation whose territory was affected.
Of course, the Indigenous nations didn't need a monarch across the sea to tell them that they had a right to use the land that they had in many cases subsisted from for thousands of years.
The proclamation was a significant acknowledgement of the power of Indigenous nations at the time. The British knew that they could not conquer the west militarily except by a campaign waged at great cost. British advisor Sir William Johnson explained to the Board of Trade in 1764: 
The Indians all know we cannot be a Match for them in the midst of an extensive woody Country...from whence I infer that if we are determined to possess Our Posts, Trade & ca securely, it cannot be done for a Century by any other means than that of purchasing the favour of the numerous Indian inhabitants.
It was on the basis of the Royal Proclamation as well that Canada sought to sign the numbered treaties between 1871 and 1921, though government officials quickly set about violating those treaties as well.
Legal Settlement or Relationship?
The problem seems to stem at least partially from differences in how treaties are understood. For government officials, treaties seem to be largely a matter of creating the appearance of consistency for legal purposes, after which colonial policies can continue apace.
For Indigenous nations, treaties are a ceremonial commitment to mutual understanding and co-existence. Their spokespeople may sign the treaty and participate in the ceremony, but the commitment and the relationship lives among the people. For Canadians, the opposite is the case. The ceremonial relationship and the commitment begins and ends with the treaty negotiator, and ignorance reigns among the beneficiaries. The courts handle the details, but knowledge stops with the lawyers immediately concerned, for the most part.
It's a small wonder that Canadians don't consider themselves party to treaties.
Canada's governments keep treaties in courtrooms and policy discussions, though its officials and industries are well aware of them. The central tension of Canadian aboriginal policy has been an inability to rid itself of the concept of aboriginal title, coupled with an intense desire to do exactly that.
Through a strange mix of legal precedents and fierce and principled resistance, the original agreements still stand. The spirit of the Royal Proclamation of 1763 was reaffirmed in 1982, when Canada's constitution was repatriated. Since then, the concept of aboriginal title has been upheld by Canada's Supreme Court, which stated in 1997 that Canada's constitution "did not create aboriginal rights; rather, it accorded constitutional status to those rights which were existing." 
And thus, which are existing.
Unceded land and modern treaties
As legal precedents continue to roll in, provincial and federal governments are keenly aware that something must be done where treaties have not been signed. 
The solution espoused by the government is the “comprehensive claims process.” Under this policy, the government attempts to minimize or eliminate the still-undefined rights Indigenous nations hold under the constitution, and offers cash and fee-simple land settlements (i.e. property that can be sold to anyone) in exchange. 
Many nations are not keen to negotiate away their rights just as they are being recognized. The federal government exerts continual pressure on multiple fronts. Chronic underfunding of First Nations goes hand in hand with the bureaucratic nightmare they must navigate to get anything done. Extraction and industrial projects are allowed to go forward without the consent of the communities who suffer their effects. Bureaucrats continue to foist undrinkable water systems on First Nations. Housing shortages create and exacerbate social crises. Decades-long "processes" rack up debt and enrich a tiny elite class of administrators and lawyers. 
Under the comprehensive claims process, the government has signed a few "modern treaties" with First Nations. In the best-known example, the Inuit of Nunavut agreed to extinguish their aboriginal title to the land and water in exchange for self-government and a budget to pay for services and fee-simple land in 1993. Revenues from resource extraction -- mining, oil and gas -- and other sources remains under federal control.
Although their treaty is not even 20 years old, the Inuit already have to fight for what the Canadian government owes them. In 2006, the Inuit of Nunavut filed a $1 billion lawsuit against the government, stating that they had breached 16 sections of the treaty in fundamental ways.
Modern treaties, like the older ones, inspire little confidence in Canada's willingness to honour its agreements.
Treaty rights and responsibilities
Among non-native Canadians, ignorance of treaty obligations is almost as widespread as the exercise of treaty rights. But attitudes go beyond ignorance. Through hard-hitting propaganda, imperceptible cues and everything in between, Canadians have been carefully taught to devalue Indigenous nationhood and culture. 
The ease with which assimilation -- "they should just be like everyone else" -- is advocated would be surprising if it wasn't so commonplace.
Assimilation stems from the logic of conquest. It says: violence and the ability to exercise it, not the rule of law or relational accountability, is what should govern our relationships. The attitude is never "we should create a society which welcomes and embraces Indigenous nations" but rather "we should just force them to be like us." 
It's a mental shortcut with wide appeal.
After centuries of policies based on "force them to be like us" sentiment, settlers are still regularly handed opportunities to start afresh. A recent example was the Royal Commission on Aboriginal Peoples, a sort of $50 million blue-ribbon panel which produced a five volume report and hundreds of recommendations in 1996. In their summary of findings, the commission wrote:
Canadians need to understand that Aboriginal peoples are nations. That is, they are political and cultural groups with values and lifeways distinct from those of other Canadians. They lived as nations - highly centralized, loosely federated, or small and clan-based - for thousands of years before the arrival of Europeans. As nations, they forged trade and military alliances among themselves and with the new arrivals. To this day, Aboriginal people's sense of confidence and well-being as individuals remains tied to the strength of their nations. Only as members of restored nations can they reach their potential in the twenty-first century.
So say the people appointed by Brian Mulroney's Progressive-Conservative government to study the matter. But the commission's 20 year plan for changing the relationship with Indigenous nations has been gathering dust for the last 17.
Politicians have failed to act on the bulk of the commission's recommendations, media commentators are willfully ignorant of them, and activists are too busy fighting off the ongoing government assaults to make more than a passing reference to something so aspirational.
If anyone is going to uphold treaties and cultivate a new relationship between nations, it will have to be the actual human beings who live here. And that relationship will have to be built with the knowledge that media, government and industry will be hostile to any effort that threatens their interests.
The first step for settlers is understanding our own role in colonialism and how we benefit from it. Only on the basis of a fearless reckoning with our own history can we begin to make good on our existing obligations and strengthen bonds between nations. A spirit of solidarity and a willingness to take action to stop the government's assault on agreements is what is immediately required.

The payoff goes further than a clear conscience for Canadians and justice for Indigenous nations. With the Harper government aggressively pursuing tar sands exploitation, much more is at stake. As founder Bill McKibben recently put it:

burning that [tar sands] bitumen on top of everything else we're combusting will mean it's "game over for the climate." Which means, in turn, that Canada's First Nations are in some sense standing guard over the planet.
There has never been a better time for Canadians to understand that we're all treaty people.