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The PLEA: Treaties and the Law

The PLEA: Treaties and the Law

Treaties: In the Beginning

There are a number of different Treaties with First Nations that cover most of the territory of Canada. The Treaty-making process in what is now Canada began in the 1600s and continues even today. Each Treaty is unique in terms of the people who entered into the Treaty and the location, as well as what was agreed to by the Treaty.

The rights created by these Treaties are part of the law in Canada. The Crown, having made solemn, sacred promises and having received benefits under the Treaties, is obliged to uphold its honour by fulfilling the promises made to the First Nations. The lasting and binding nature of these Treaty promises was reinforced when these rights were made part of the highest law of the Canadian Constitution. Section 35 of the Constitution Act recognizes and affirms Aboriginal rights:

(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.

The Treaties are promises, and the importance of keeping promises is “deeply ingrained in all of us, and indeed is common to all cultures and legal systems.”1 The fact that Treaties were entered into represents “a profound commitment by both parties to the idea of peaceful relations between people.”2 Canada would not be the Canada we know today if the First Nations and those representing the British and later Canadian governments had not been committed to the Treaties as a peaceful means of deciding how they were going to live together.

While Treaties are sometimes seen as “ancient, obsolete relics of marginal historical interest,”3 during negotiations for Treaty 6 the Crown’s chief negotiator stated that the Treaty promises were “not for today but for tomorrow, not only for you but for your children born and unborn, and the promises we make will be carried out as long as the sun shines and the waters flow.”4

1, 2 Report of the Royal Commission on Aboriginal People, vol. 2 (Ottawa: Indian and Northern Affairs Canada,1996)

3 Warren J. Sheffer. “R. V. Marshall: Aboriginal Treaty Rights and Wrongs” (March, 2000). 10 W.R.L.S.I. 77. Quoting from speech of Phil Fontaine when he was National Chief of the Assembly of First Nations.

4 Sheila Carr-Stewart, “A Treaty Right to Education” (2001) 26:3 Canadian Journal of Education.

Treaties were used as a legal way of gaining consent to allow First Nations land to be opened up to settlement. Without these Treaties, the right of Britain and later Canada to settle the land could be called into question.

Just as the Canadian government over the years continues to benefit from its Treaty right to the land, the First Nations continue to benefit from the rights as outlined in the Treaties.

The Constitution Act, 1982, recognized and affirmed Treaty rights, making them constitutional rights. Section 35(1) states that “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

The Supreme Court of Canada, in Mikisew Cree Nation v. Canada, stated “This Court has repeatedly found that the honour of the Crown governs Treaty making and implementation, and requires the Crown to act in a way that accomplishes the intended purposes of Treaties and solemn promises it made to Aboriginal peoples.”

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) ensures that indigenous peoples’ rights to cultural integrity, education, health, and political participation are protected. UNDRIP also provides for the recognition of indigenous peoples’ rights to their lands and natural resources, and the observation of their Treaty rights.

Since time immemorial Indigenous peoples maintained a sacred connection to Mother Earth with political, legal, social, and economic systems developed in accordance with the laws of the Creator.

Thousands of years of Indigenous habitation in what would become Saskatchewan is evidenced in the St. Victor petroglyphs and rock carvings, and pictographs (wall paintings) along northern waterways.

Wanuskewin archaeological evidence confirms that Indigenous peoples inhabited what is now known as Saskatchewan for more than 10,000 years.

The Head-Smashed-In buffalo jump site in the prairies west of the Cypress Hills dates back to around 3,700 BCE

Treaties Over Time

Mid-1600s

Treaties of “peace and alliance” negotiated in the Maritimes to help establish British control over the export of resources.

1780-1850

Treaties entered into in what was then Upper Canada, dealing with small tracts of land needed for farming.

1850

When the Hudson’s Bay Company expanded operations to the west coast, Treaties accommodated the limited settlement needed for company operations.

1871-1921

Treaties entered into on the prairies allowed settlers to begin farming the land and prevent these lands from being absorbed into the United States.

Treaties by the Numbers

After becoming independent of Britain in 1867, the Canadian government used the already established Treaty-making tradition when negotiating with the First Nations on the prairies. Just as Britain had before Confederation, Canada benefitted from these Treaties in many lasting ways.

Treaties 1-7

Cleared the way for the Canadian Pacific Railway and agricultural settlement in the prairies and northwest Ontario.

Treaty 8

Gave access to the Yukon Territory following the start of the gold rush.

Treaty 9

Followed silver discoveries and expected hydroelectric, pulp, and paper development in Northern Ontario.

Treaty 10

Allowed for expected development in Northern Saskatchewan.

Treaty 11

Entered into after Imperial Oil’s first gusher at Norman Wells.

The value today of the land opened up for settlement via the Treaties in Saskatchewan alone is estimated at $61 billion.