Anatomy of a Treaty

Before Canada was a country, treaties dominated the landscape. Between Anishinaabeg and Haudenosaunee, or Nêhiyaw and Dakota, or Muskego and Inuit, formal arrangements to share the land and undertake peaceful relations were common. We have stories of the very first treaties — treaties with the land itself (with the bear, the deer, the waters and so on) — that stretch back thousands of years.

When settlers eventually arrived in this part of the world, they were greeted by treaty-makers.

The French were brought into the Mi’kmaq political economic sphere, the Dutch and the English into the Haudenosaunee, and so on. Later there would be Confederation-era treaties and the so-called modern treaties. Indeed, the central custom that defines us is the treaty. More than mere documents or transactions, treaties shape our relationships as Canadian and Indigenous peoples. A treaty is not merely a document — certainly not to First Nations. Treaty is a practice. A practice that endures over time. That is: a custom. And Canadian governments’ track record with them may be an indication of why the country is so warped.

Treaties past: First contact, Confederation and the Indian Act

After the near century-and-a-half of early, contentious relationships that followed the arrival of colonizers, the English formalized their framework for treaty-making in 1763 with King George’s Royal Proclamation, solemnized a year later in the Treaty of Fort Niagara. This proclamation stipulated that if the English wanted to move west of the Great Lakes, they would require the permission of the First Nation landowners who lived there. This set the stage for Confederation-era treaty-making, which started in earnest with the Numbered Treaties — 11 of them — negotiated between 1870 through to 1921, which captured most of the country from northwestern Ontario to the Rocky Mountains. Aside from a number of other small treaties — the Douglas Treaties — on southern Vancouver Island, the colonial government decided to stop there.

This hesitation (or neglect) resulted in vast areas of the country — the North and almost all of British Columbia and Quebec —going without treaties.

Where treaties were made, they immediately were broken — or, rather, interpretation issues immediately surfaced. Canadians viewed the 11 Numbered Treaties as transactional: negotiations of cash for land and sovereignty. First Nations, however, viewed treaties as long-term pacts of peace, friendship and mutual support. This disagreement was manifest most acutely in relocation schemes organized by the Canadian government, interventions in Indigenous community affairs, the overthrow of First Nation governments, restricting access to resources, and other forms of interference in Indigenous life. As Cree legal scholar Sharon Venne notes, none of these measures were agreed to in the First Nation interpretation of treaties.

All of the above actions were taken via powers Canada granted itself in the Indian Act, the legislative framework that sought to both standardize and enforce Canada’s narrow view of treaties. When First Nations protests of these actions didn’t subside, the federal government amended the Indian Act in 1927 to outlaw First Nations from sharing their opinions publicly or organizing politically. This meant the Canadian interpretation prevailed, in the public square and in courts. First Nations had few avenues to even articulate the sort of agreements they presumed treaties to be.

This ban is an important part of the story. Resistance to it mounted, and in 1951 the act was amended to remove many of its restrictive features, including the suppression of political organizing.

As a result, those concerned about settlers on land without treaties flooded the system with complaints. In 1973 Frank Calder, on behalf of the Nisga’a Nation in British Columbia, argued before the Supreme Court that Nisga’a title to land existed and had not been extinguished. While it was a split decision, the court agreed. As a consequence the Crown is required to address Aboriginal title claims where there are no treaties. Canadians living and working on those lands are effectively illegal squatters.

Around the same time, the James Bay Cree learned of Quebec’s plans to flood thousands of square kilometres of Cree land for a hydro power project — non-treaty land the Cree had not agreed to share with Quebeckers and Canadians. They sought to prevent the development and assert their rights in the courts. With a Cree victory in Quebec Superior Court and a savvy public relations campaign (in addition to Calder’s efforts), Canada began to consider a new policy for Aboriginal title lands. In other words, Canada was pushed to begin making treaties anew.

Treaties present: A renewed legal process

The modern treaty era began in 1973, when the federal government opened an Office of Native Claims to initiate a revised treaty-making process for First Nations in Canada. Two years later the James Bay Cree and province of Quebec negotiated the James Bay Northern Quebec Agreement. An Aboriginal self-government policy was drafted soon after, and applied to the modern treaty negotiations that would come.

According to Indian Affairs Canada, since then 26 arrangements — including treaties; umbrella agreements (treaty frameworks); agreements-in-principle (AIPs), which can last for decades; and sectoral self-governing agreements — have been completed, with another 100 modern treaties currently under negotiation between federal, provincial/territorial and Indigenous governments. These include treaties with a dozen Yukon First Nations reached between 1993 and 2005; the aforementioned Nisga’a Nation’s treaty, reached in 2000; and the Tsawwassen treaty in 2009. Entire territories, including Inuvialuit (in 1984), Nunavut (in 1993), Nunatsiavut (in 2005), and Nunavik (in 2008) have all been created as a result of modern treaties and self-government agreements.

This year, the Deline Got’ine finalized their agreement with Canada and the Northwest Territories, and the Algonquins of Eastern Ontario have accepted an agreement-in-principle for a treaty expected to be finalized within the next five years.

While there has been some variation, the model for contemporary treaties has generally remained the same: In exchange for extinguishing (or modifying) Aboriginal title to 90 per cent of their surface territory and 99 per cent of their sub-surface (and potentially mineral rich) territory, First Nations or Inuit receive hundreds of millions in cash, local or regional self-government independent of the Indian Act, and a consultative stake in developments in their now-ceded territories. While in practice these treaty terms are a great deal more complicated, this is the basic exchange.

Treaties future: Fixing a flawed system?

But even though treaties continue to be negotiated today, there are still challenges with the process. Agreements often take an extremely long time to negotiate, usually decades, and the negotiation process is costly — sometimes prohibitively so. By the time a treaty is finalized, First Nation signatories often owe tens of millions in accrued legal debt to Canada, which comes off the top of their cash settlement.

There is also a power imbalance in negotiations that take place within a Canadian legal framework, with Canadians setting the terms of negotiation.

Further, modern treaties universally have implementation problems. The Land Claims Coalition of Canada was formed in 2003 and today counts every single First Nation or Inuit modern treaty signatory among its members. Its purpose is to lobby the Canadian federal, provincial and territorial governments to honour their sides of the treaties they’ve signed, which they routinely fail to do.

Finally, those old interpretation problems about the spirit of a treaty remain. In each northern jurisdiction today, the nature of modified Aboriginal rights and title is before the courts. Can the Yukon government pass a regional land use plan without considering modern treaty signatory input? Can the government of the Northwest Territories unilaterally change the terms of a constitutionally entrenched treaty? Do the Inuit have a right to say no to seismic testing in their waters? These won’t be the last disputes.

Because of these challenges, the future of our treaty system today is uncertain. Last year, the British Colombia government temporary suspended its participation and some First Nations, such as the Tsilhqot’in and Heiltsuk, are exploring non-treaty approaches to asserting their jurisdiction on title lands. They may never sign a treaty. Yet for others, modern treaties are a fact of life. As my colleague Frances Abele says, some Gwich’in and Eeyou Istchee generations today simply know nothing else.

Perhaps their descendants can avoid the betrayal that typically comes with treaties in Canada.