This anthology of essays on historical and contemporary treaties (the title’s focus on historical treaties is somewhat misleading, since it also covers recent treaty-making) is edited by the Anishinaabe legal scholar John Borrows and Settler (if he identifies that way) law professor Michael Coyle. It’s a big book, and because some of the essays are more applicable to my specific interests (the numbered treaties on the prairies) than others, I won’t discuss all of them in this summary. However, it’s worth pointing out that the introduction, written by Borrows and Coyle, begins with a statement of what I’ve come to see as the consensus, at least among historians, about the historical treaties:
For many Canadian government officials, the implications of those treaties are nicely contained within written documents drafted by Crown negotiators. However, for their Indigenous counterparts, who often spoke little English, the real importance of treaties was the relationship to which both sides had agreed. This relational aspect of the treaty-making venture is irrefutably manifested by the frequency with which, across the country, both sides’ negotiators used language of kinship in describing the intended goal of the treaty process. (3)
Again we see the distinction between treaty-making as relationship-building, and treaty-making as the production of a written text. Borrows and Coyle then lay out the four major questions the essays they have collected discuss: What role should history and historical promises play in shaping modern treaty relationships? If we seek healthy treaty relationships, what should the role of the courts be in resolving disputes, and what is their role in relation to political and public dialogue? What role, if any, should be played by Indigenous values and legal traditions in informing treaty implementation? And, finally, should we look to other forums—other than the courts, that is—to resolve treaty disputes? (5). The questions, Borrows and Coyle write, “go to the heart of Canada’s national identity,” and “will have to be addressed if Canada is to live in accordance with its highest aspirations as a country built on respect for the rule of law and democratic self-governance” (5).
In “Canada’s Colonial Constitution,” Borrows explores a variety of stories about Canada—stories which have legal and constitutional significance. For example, one story, which was told by the Supreme Court of Canada in R v Sparrow (1990), was that underlying title to the territory occupied by Canada is vested in the Crown, because Indigenous peoples have an inferior legal status (18). “If Canadian law flows from this view, it revolves around a loathsome core,” Borrows writes, a core defined by discrimination, coercion, and inequality (18). “This story tells Canadians that our deepest political values are ultimately traceable to a denial of fairness, equality, and mutual respect,” he continues. “This builds Canada on a dishonourable foundation” (18). However, that story is also a lie, according to Borrows:
The truth is that Canada’s formation does not just rest on racism, force, and discrimination. Canada is also rooted in doctrines of persuasion, reason, peace, friendship, and respect. While Canada’s ongoing creation is deeply flawed, it also contains various positive qualities which enhance many lives. These influences mingle together in complementary and inconsistent ways throughout our legal system. (19)
For instance, the Supreme Court of Canada’s decision in Tsilhqot’in Nation v British Columbia (2014) denies the validity of the doctrine of discovery, and its decision in Haida Nation v British Columbia (2004) repudiates the notion that Canada was built on conquest (20). In addition, the treaties, and the principles they represent, create this country “on a foundation of mutual regard and respect” (21). The numbered treaties on the prairies are a particular example, and First Nations Elders speak of those agreements in sacred terms, as blessed by the Creator (22).
But, for Borrows, the preeminent example of what he calls “treaty federalism” (21) is the 1764 Treaty of Niagara, which promised First Nations that political dealings with settlers would be mediated by the Crown (22). “Throughout Canadian history, First Nations have largely held on to this idea,” Borrows writes. “In this view, First Nations’ political and legal life has been built around one central fact—colonial, and later, provincial governments were forbidden from legislating in their interests” (23). That story, however, is not entirely correct, because in fact the provinces have been instruments of colonization. “By dividing the Crown into constituent parts,” Borrows writes, referring to the federal and provincial Crowns, “the Privy Council eroded the promises of the Proclamation”—that is, the Royal Proclamation of 1763—“and Treaty of Niagara” (24). A number of Supreme Court decisions have continued down that path, including Grassy Narrows First Nation v Ontario (Natural Resources) (2014), which Borrows discusses in detail as a rejection of the principles expressed in the Royal Proclamation of 1763 and the Treaty of Niagara. The Court, he writes, did not look at Treaty 3 as the Anishinabe First Nations whose chiefs signed the agreement would “naturally understand it” (31), something earlier decisions oblige it to do. “The legal and political bedrock which orients First Nations’ political life is savaged by this decision,” Borrows writes (31). In such a context, reconciliation means reconciling with colonialism, “hardly a cause for celebration” (33). Nevertheless, Grassy Narrows also creates a test as to whether provincial actions are unreasonable, cause undue hardship, or deny First Nations the preferred means of exercising their rights (33-34), and this constraint “might result in better outcomes for First Nations than federal interposition could accomplish,” Borrows states. “This narrative should not be overlooked” (34).
In his conclusion, Borrows returns to the idea of stories. “Any future,” he writes, “will be like our past: impure, conflicted, sullied, and imperfect. However, my point in this paper is to illustrate that some stories are better than others. We should seek to enhance those accounts which constrain the offensive uses of power most fully” (37). Canada’s “so-called evolution” from the Royal Proclamation of 1763 and the Treaty of Niagara has led to “a more deeply discriminatory and colonial state,” he concludes, although the point of his essay is to search for positive nuances even within what he describes as our country’s “dark story” (38). That “dark story,” I think, is the story of settler colonialism as described by Emma Battell Lowman and Adam J. Barker.
Michael Coyle begins his essay, “As Long as the Sun Shines: Recognizing that Treaties Were Intended to Last,” by noting that Canadian law governing treaties is in its infancy, and that it allows federal and provincial governments to interfere with treaty rights, although they have a duty to consult before doing so (41). Nevertheless, “huge gaps remain in our understanding of the legal principles that should be applied by Canadian courts to claims for remedies under historical treaties” (41-42). Coyle outlines at least three of these gaps: courts have tended to interpret treaties as not significantly different from contracts between individuals; they have not acknowledged Indigenous perspectives on the treaties; and they have yet to develop “clear remedial principles” to guide the treaty partners (45). For Coyle, the relational aspect of the treaties is crucial: that is the Indigenous understanding of their purpose, and without that understanding, they will be misinterpreted as contracts (47-51). But how can disputes between the treaty partners be remedied? For Coyle, clues can be found in the treaty-making process itself, which suggests the creation of a new normative order that all parties in the negotiations were capable of respecting (53-54). The symbolism of the Gus-Wen-Tah, or the Two Row Wampum, which was reaffirmed by the Treaty of Niagara, “can be understood as an effort to institutionalize relations between the Crown and its Indigenous allies” (55-56).
Coyle discusses the so-called “taking-up” clauses in the Robinson Treaties and the numbered treaties as examples of the distinction between treaties as contracts and as statements of relationships that create a new normative order between the treaty partners:
A literal, contract-based approach to the clause would favour the conclusion that one party to the treaty, conscious that the treaty relationship would last “as long as the sun shines,” was agreeing that the other party would ultimately have the exclusive power to eliminate, over time, their entire means of subsistence and to sever completely their social, cultural, and spiritual connection to virtually all their traditional lands. To adopt such an interpretive approach to the treaty arrangement would be to assume that the Indigenous partners in each of these treaties were utterly irrational. It would be to assume that the Indigenous treaty negotiators were not interested in protecting their economy and their spiritual home. (56-57)
On the other hand, one might think of the treaties as institutionalizing relationships between the treaty partners. Coyle’s example, again, is the Treaty of Niagara (57). “Our starting point must be that treaty-making was seen by both Indigenous peoples and the Crown as a worthwhile enterprise aimed at advancing both peoples’ interests through agreement, and not a meaningless charade intended only to deceive and mollify Indigenous peoples,” he writes. Coyle goes on to develop four principles that are “foundational elements of the new institutional legal order that was created through the historical land treaties” (65), and those principles are central to his argument about how those documents (oral and written) are to be interpreted. Those principles are:
- Both treaty partners possess an inherent and historically recognized right to make governance decisions in connection with, at the very least, the subject matter of the treaties;
- Both treaty partners would cooperate to ensure that there would be effective recourse should disputes arise about what had been agreed or what actions would amount to full compliance with the spirit of the treaty relationship;
- Both historical treaty partners to the historical land treaties are required to sit down in the fact of significant changes in circumstances over time to negotiate, in good faith, a new consensus as to how their treaty understandings should be renewed to address both sides’ contemporary needs and interests in relations to the treaty lands; and
- The historical land treaties shall not be interpreted or implemented in such a way as to render them an improvident arrangement for either partner. (65)
Of course, the way that Canadian courts have been interpreting these treaties has little to do with these principles, which Coyle describes as the minimum standards for the implementation of historical treaties (68), and there is nothing in the past century and a half of Canadian history that would suggest that these principles might be adopted. What should be, then, is not what is, and unfortunately Coyle doesn’t explain how the Crown might be persuaded to adopt these principles.
In “Bargains Made in Bad Times: How Principles from Modern Treaties Can Reinvigorate Historic Treaties,” Julie Jai argues that principles from modern treaties—that is, from the agreements that are being negotiated through the comprehensive land claims process—should be “read into historic treaties as implied terms based on the Crown’s legal obligation to act honourably” (109). The historic treaties were negotiated under duress, she argues, citing James Daschuk’s contention that hunger played a role in the completion of Treaty 4 (see Daschuk 95), and the imbalance of bargaining power between the parties to the historical treaties could now be remedied by borrowing from modern treaties (116-17). One of the key failings of the historical treaties, according to Jai, is that both parties to their negotiation had differing understandings of what they had agreed to. The Crown’s understanding is stated in the written texts of the agreements. The Indigenous negotiators, on the other hand, believed the principles to which they were agreeing were very different. They included:
- mutual respect between peoples;
- a relationship of peace;
- understanding that the treaty was a sacred covenant with the other government and the Creator and all parties recognize the divine sovereignty;
- recognition of First Nations’ right to maintain their relationship with the Creator, including the laws given by the Creator, which include the right to self-government, the right to use the lands and resources, harvesting rights and the right to maintain their way of life;
- ongoing familial relationship—according to Indigenous traditions, entering into a treaty means entering into a relationship with your treaty partner and bringing them into a relation of kinship;
- mutual sharing of resources;
- continued right to livelihood and way of life; and
- sharing—not surrender—of land. (128-29)
Those principles are important, Jai argues, and they are the reason the chiefs would have signed the historical treaties, and they are also the reason why Elders are proud of them now (130). Moreover, those principles are consistent with the Royal Proclamation of 1763 and the Treaty of Niagara (130).
So, how could the principles articulated in the modern treaties help to reconcile such vastly different conceptions of the historical treaties? First, Jai describes the agreements she helped to negotiate in the Yukon and their underlying principles: the need for reconciliation, which she defines as “the understanding that collectively, all parties need to work together to reconcile their differing needs and interests and build a new kind of society”; mutual consultation; recognition of co-management and reciprocity as a way to make sure that the perspectives of both parties to the agreement are considered; conservation; sustainable development; respect for all living things; the interdependency of all things; and, finally, “the spiritual and economic relationship of Indigenous people with the land, reflecting a holistic world view” (133-34). Co-management boards established by the Yukon agreements are one way to manage the ongoing relationships between the parties and encourage dialogue between them (134). The implementation of the agreements allows First Nations to gradually draw on self-government powers (134). The agreements recognize the distinctiveness of First Nations societies (134). And, unlike the historical treaties, the modern variety are carefully drafted and ratified by the communities they affect (134-35). Jai acknowledges that some First Nations people believe the modern treaties are actually worse than the historical ones, but she still contends the modern ones are superior, because the parties have similar understandings of what they are agreeing to; the written text accurately reflects the key terms of the agreement; and the agreements come closer to meeting the interests of both parties (135-36). The modern treaties, she continues, are more successful at fostering relationships between the parties (137-38).
Jai identifies three principles that could be drawn from modern treaties and applied to historical treaties. First, the historical treaties could be seen as a framework for maintaining relationships of mutual respect and mutual benefit through, for example, the use of co-management bodies and impact-benefit agreements (138-40). So-called “most favoured nation clauses” (141) could be read into historical treaties, so that First Nations who negotiated treaties at times of minimal political and demographic power would benefit from improvements in treaties negotiated by First Nations at times of more equitable power (141-43). And, finally, a dispute resolution process, like the arbitration boards of modern treaties, could be established (143). Jai notes that the Royal Commission on Aboriginal Peoples recommended that such a step be taken (144). Like Coyle’s essay, however, Jai does not explain how one might get the federal government to take up these ideas.
In “What Is a Treaty? On Contract and Mutual Aid,” Aaron Mills/Waabishki Ma’iingan, an Anishinaabe PhD student at the University of Victoria, embarks on a lengthy and deeply philosophical discussion of the treaties from an Anishinaabe perspective. He rejects the notion of the social contract, as articulated by Thomas Hobbes and John Rawls, and of treaties as contracts, because these interpretations voice “a shared commitment to violence,” and argues that institutions based on notions of social contract, including the Crown and the Supreme Court of Canada, are “structurally committed to violence” (212). Instead, he argues that Anishinaabe constitutionalism and conceptions of treaty as relational rather than contract, as articulated by the Treaty of Niagara, suggest a different way of thinking about the link between treaty and constitutionalism, one based on mutual aid (211-21). He sees that Covenant Chain as an example of mutual aid that connects us and links us together, unlike the violence of contract (215). According to Mills,
the cry of Indigenous peoples has consistently been that treaty is the only legitimate justification for the constitution of shared political community on Turtle Island. Treaty, we are breathless from saying, constitutes political community without predication on violence. Why wouldn’t settlers choose treaty over social contract as the foundation for our shared political community? (219)
The answer to that question, Mills writes, is fear: a fear of acknowledging the history of violence and dispossession to which settlers are heirs (219).
For Mills, then, treaties are, or ought to be considered as, first-order constitutional matters (220). Because they aren’t—because they are seen as second-order matters of distributive justice—Canada is founded on domination over Indigenous persons, peoples, and lands (220-21). That’s because Canada continues, despite its participation in modern treaty processes, to claim “radical title to all of Turtle Island, knowing full well that Indigenous peoples were already living on it as persons, peoples, and confederacies of distinct constitutional orders before settlers arrived”—a claim supported by the Supreme Court of Canada in the Tsilhqot’in Nation case (222). Canadian courts are simply incapable of building a doctrine around treaties that would reflect a translation of Indigenous understandings, he writes, and rather than attempt this, the Supreme Court of Canada “consistently chooses to account for the unique political status of Indigenous peoples within the contract-confederation story,” instead of “situating treaties as the very things which empower settler legitimacy,” which is assumed without justification (224). “From an Anishinaabe constitutional standpoint,” he writes, “this is outrageous,” because treaties are the way “we constitute ourselves as communities of communities, across our difference” (225).
For Mills, then, the change that needs to happen in the relationship between settlers and Indigenous peoples must be structural: “We have to transform that very structure to allow Indigenous legal traditions to stand within their own constitutional worlds, not contain and re-express them post-fact within the existing terms of the settler contract,” he argues (229). To accept Anishinaabe constitutionalism, he continues, would be to accept a sense of interdependence between individuals and the importance of mutual aid, which replaces the need for a theory of obligation (as articulated by the theory of social contract (230-36). For Mills, the Treaty of Niagara represents the intercultural achievement of an understanding of harmony as right relations, and a commitment to a relationship based on practices of mutual aid represented in the Covenant Chain wampum belt (237-38). The Treaty of Niagara, he continues, articulates a vision of a shared political community, of a living relationship between settlers and Indigenous peoples that creates a foundation for settler citizenship (241). That vision is what Canada needs to return to, he suggests, and the fact of Canada’s construction on the basis of domination needs to be abandoned.
Mills’s take on these questions is radical, but it seems clear that if one is to abandon the doctrines of discovery and terra nullius, some other explanation for the presence of settlers on this land must be articulated, and that explanation will necessarily, I think, be a radical shift from domination to something else—perhaps the notion of mutual aid and right relations Mills advocates. I don’t know. As with other essays in this volume, I don’t see a path forward to making the radical and, to use his word, “unsettling” changes he is calling for (225). For Mills, “Canadians enjoy the incredible level of privilege they do because Indigenous peoples remain colonized. Indigenous suffering is the cost of the settler benefit that Canadian citizenship allows to be taken for granted” (245). If that’s true, and I think it is, then morally or ethically I cannot accept that situation. And yet, my sense is that most of my fellow citizens are far less squeamish about the domination that subtends their privilege, or their “benefits,” to use Lowman’s and Barker’s term. Perhaps I’m wrong about that; I certainly hope I am.
In “(Re)Defining ‘Good Faith’ through Snuw’uyulh,” Sarah Morales takes a more jaundiced look at modern treaties than Jai. For Morales, Canada is negotiating the modern treaties in bad faith—at least in the example of the negotiations between Canada and the Hul’qumi’num people, who are asserting their fundamental rights under international law—and what is needed is a process that engages the legal traditions of both sides (279-80). The federal government is negotiating in bad faith because it is disregarding the impact of colonialism on the Hul’qumi’num people and their land base (85 per cent of their traditional lands were expropriated without consent and granted to the Esquimault and Nanaimo Railway in 1884). Instead, the Crown wants to confirm that expropriation by obtaining “the complete extinguishment of Indigenous title over all but a few thousand hectares of their ancestral territories, where Hul’qumi’num people would have municipal-style Indigenous governance and limited authorities to administer some social services,” Morales writes (280-81). Both the federal and provincial governments are refusing to recognize or discuss Hul’qumi’num claims to restitution or compensation (281), and by allowing logging and mining in Hul’qumi’num territory, the environment there has been destroyed so that the Hul’qumi’num people cannot use their lands for subsistence hunting, fishing, and gathering; importance ceremonies; and other customary practices (282-83). “Is it good faith to speak of reconciliation, when one party is knowingly left without an effective remedy for the majority of its interests?” Morales asks (283).
For Morales, the only way forward would be to recognize Hul’qumi’num legal traditions, including their definition of good-faith negotiations, dispute-resolution processes, and teachings about restitution (292-98). The goal of these legal traditions is to foster harmony within the community (298), which is very different from the BC treaty process, where governments have immovable mandates and power imbalances affect the negotiations. “As the Hul’qumi’num experience illustrates,” Morales concludes, “the British Columbia treaty-making process has become a tool for governments to expedite and extinguish land claims while overlooking the deeper issues surrounding Indigenous/non-Indigenous relations in Canada” (301). By comparing Morales with Jai, one comes to understand that the modern treaty negotiation process can be seen in very different ways, and that it may be the involvement of (or interference by) the province of British Columbia that is the crucial difference between the experiences of First Nations in British Columbia and the Yukon. However, it may also be the specific historical facts—facts which apparently the federal and provincial governments wish to ignore—that are making the Hul’qumi’num negotiations so difficult. I’m not sure, but clearly Jai’s optimism about what can be accomplished through the modern treaty negotiation process needs to be taken with a grain of salt.
Finally, Shin Imai argues in “Consult, Consent, and Veto: International Norms and Canadian Treaties” that “the Crown should obtain the consent of the First Nations concerned before authorizing extractive activity on traditional territories” (371). She notes that the private sector is in favour of the consent standard because community conflict creates significant costs (382), and that the “consult standard” leaves communities powerless (385). “It is through recognition of the necessity of consent that the Indigenous community will have the power that can be a balance to the superior economic power of the mining company and the superior political power of government,” she writes (385-86). Imai notes that recent Supreme Court of Canada decisions about the duty to consult have been contradictory and confusing, and that because the Canadian approach focuses on the Crown, it fails to provide sufficient agency and recognition to Indigenous peoples (391-92). Adopting the standard of consent, as first mentioned in Delgamuukuw (1997), rather than consultation, would enable courts to develop a way out of “this morass,” she argues. “At the present time, courts in Canada are lagging behind international and private industry standards, as well as practice on the ground,” she concludes. “Rather than focusing on the fact that Indigenous parties do not have a veto, courts should focus on the development of the concept of consent” (408). Of course, the numbered treaties make no allowances for consent or consultation on land that has been purportedly surrendered to the Crown, as Coyle notes, and the courts are obviously reluctant to impose the concept of consent, preferring the woolier concept of consultation. Again, what “should” happen is not necessarily what will happen, given the realities of power and colonial history in this country.
What I take away from The Right Relationship is just how imperative it is to recognize Indigenous perspectives on treaties and legal traditions if anything resembling reconciliation is to happen in this country. And yet, at the same time I wonder if Canadian courts or (especially) governments are willing to take that step. For that reason, The Right Relationship is, for me, a profoundly discouraging book. At the same time, its footnotes are a fantastic source of material on the treaties, and I look forward to reading more from Borrows, particularly his essay on the Treaty of Niagara. Every writer who mentions the Treaty of Niagara hails it as a model for the relationship between settlers and Indigenous peoples, and perhaps Jai is correct when she suggests that such a relationship was only possible because the two parties had relatively equal levels of demographic, economic, and political power at the time (116-17). The political reality now, of course, is that First Nations appear to lack the power to get a fair deal from governments, if Jai’s analysis is correct. (On the other hand, perhaps the federal government lacks the ethical grounding to negotiate fairly with First Nations.) The description of the Hul’qumi’num people’s experience trying to negotiate with the federal and provincial governments is frankly shameful, and I would venture to bet that experience is closer to the normal way of conducting modern treaty negotiations in Canada than it is an aberration. It’s hard to believe, then, that Canada is likely to do the right thing, as that is described by the authors included in The Right Relationship. Perhaps if the decolonizing revolution that Lowman and Barker call for were to take place, then our governments–assuming they still existed after such a dramatic change–might behave in a good way. But right now, when they do, it’s a surprise. And, to be honest, that’s just not good enough.
Borrows, John, and Michael Coyle, eds. The Right Relationship: Reimagining the Implementation of Historical Treaties, University of Toronto Press, 2017.
Lowman, Emma Battell, and Adam J. Barker. Settler: Identity and Colonialism in 21st Century Canada, Fernwood, 2015.