Aboriginal treaties across Canada.
(courtesy Victor Temprano/Native-Land.ca)

Aboriginal treaties in Canada are constitutionally recognized agreements between the Crown and Aboriginal peoples. Most of these agreements describe exchanges where Aboriginal groups agree to share some of their interests in their ancestral lands in return for various payments and promises. On a deeper level, treaties are sometimes understood, particularly on the Aboriginal side, as sacred covenants between peoples that establish the relationship linking those for whom Canada is an ancient homeland with those whose family roots lie in other countries. Thus, treaties form the constitutional and moral basis of alliance between Aboriginal peoples and Canada.

Introduction

Aboriginal treaties in Canada are constitutionally recognized agreements between the Crown and Aboriginal peoples. Most of these agreements describe exchanges where Aboriginal groups agree to share some of their interests in their ancestral lands in return for various payments and promises. On a deeper level, treaties are sometimes understood, particularly on the Aboriginal side, as sacred covenants between peoples that establish the relationship linking those for whom Canada is an ancient homeland with those whose family roots lie in other countries. Thus, treaties form the constitutional and moral basis of alliance between Aboriginal peoples and Canada.

On the Aboriginal side, the sacredness and binding character of treaties is not found primarily in the documents’ legalistic language. Instead, the true force of treaties is rooted in what was actually said, often in Aboriginal languages, at the time of the negotiations when treaty deliberations were frequently accompanied by ceremonial conventions such as the smoking of sacred pipes (calumet) or an exchange of symbolically significant presents (e.g., wampum belts). Accordingly, many contemporary Aboriginal peoples look to their elders who are schooled in the oral histories as the highest authorities on the spirit and intent of the treaties.

On the Crown side, the principles for treaty making with Aboriginal peoples were articulated by King George III in the Royal Proclamation of 1763, which established the constitutional foundations of Canada after the government of France withdrew its claims to North America. The constitutional character of past and future treaties between Aboriginal peoples and the Crown was renewed in the Constitution Act of 1982, which describes itself as "the supreme law of Canada." Section 35 of that document both recognizes and affirms "existing Aboriginal and treaty rights."

In 1990, the Supreme Court of Canada in the Sioui case determined that "treaties and statutes relating to Indians should be liberally construed and uncertainties resolved in favour of the Indians." In that case, the court introduced into Canadian jurisprudence a principle adopted from a 19th-century ruling in the United States that such treaties "must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians."

In spite of the constitutional character of treaties, these deals were often viewed cynically by those non-Aboriginal people responsible for both making and implementing them as cheap and expedient ways to strip Aboriginal title from most of the lands in Canada so that resources could be exploited by other groups.

The tendency on the part of federal and provincial governments has been to continue to interpret treaties as legalistically as possible, while holding to the position that Aboriginal peoples "ceded, surrendered, and yielded" all their Aboriginal rights and titles to their ancestral lands through treaties.

This narrow view of treaties essentially as real estate deals by which Aboriginal groups sold all their interest in vast parcels of land in exchange for reserves, small one-time payments and small continuing payments (usually five dollars per Treaty Indian per year) has produced a huge schism. On the one hand is the view of treaties as legal instruments that extinguished Aboriginal rights. On the other is the view of treaties as instruments of relationships between autonomous peoples who agree to share the lands and resources of Canada. Seen from this latter perspective, treaties did not extinguish rights but rather confirmed rights through recognizing that Aboriginal peoples have the capacity to act as self-governing participants on the international stage. Bridging the gap between these two views of treaties poses a huge challenge to the people and lawmakers of Canada.

Treaty Traditions

Covenant Chain Treaties

The conventions and protocols of treaty making that are, and were, being applied to the largest part of Canada have their origins in the old Covenant Chain. The Covenant Chain refers to an elaborate diplomatic relationship developed after 1676 between several Anglo-American colonies and various Aboriginal nations in northeastern North America. At the council grounds near Albany, officials from the colony of New York regularly negotiated with representatives of the League of the Haudonosaunee, otherwise known as the Longhouse League, the Haudenosaunee, or the Five, and later, Six Nations Confederacy. By developing treaty relationships with the League members, but especially with the powerful Mohawk, Crown officials began developing the largely mythical legal presumption that their government's jurisdictional reach extended through the Haudenosaunee deeper into the Aboriginal territories of Canada.

Treaties and Wampum

When Crown officials spoke of renewing treaty relationships with their Aboriginal allies, a usual metaphor would refer to polishing the links of the Covenant Chain. It would be almost unthinkable for those Aboriginal and non-Aboriginal diplomats schooled in the Covenant Chain tradition to make treaties without signifying their major features on wampum belts composed of shell beads woven into appropriate symbolic representations. To accept a wampum belt in formal council was to agree to adhere to the principles embodied in its woven design. The wampum thereafter served to help perpetuate the memory of the treaty. The use of wampum as an instrument of treaty relationships spread widely throughout eastern North America in the 17th, 18th and early 19th centuries.

Maritime Treaties

There is another tradition of treaty relations sometimes also described as the Covenant Chain. This tradition links the British Crown to Mi’kmaq and Maliseet peoples whose ancestral lands cover most of the Maritimes, plus parts of the Gaspé Peninsula. Unlike those treaties flowing from the principles in the Royal Proclamation, the Maritime treaties do not directly deal with the apportionment of land title. Instead, these agreements, whose keystones are the Boston Treaty of 1725 and the Halifax Treaty of 1752, were primarily mutual promises of peace and friendship. The agreements also guarantee Aboriginal right to trade without hindrance, the right to fish and hunt in their customary manner, and the right to receive annual supplies of food, provisions and ammunition from the Crown.

In this era, the Mi’kmaq and Maliseet were overwhelmingly Roman Catholic. They were often deeply attached to their priests, as well as to their French-speaking Acadian neighbours, with whom they intermarried. As a result, occasionally they opposed the British, but this stance was modified somewhat through the treaty-making process.

In 1985, the Supreme Court of Canada affirmed the continuing force of the Treaty of 1752 by reversing a conviction for hunting out of season against James Simon of the Shubenacadie reserve. In spite of the Simon case, provincial governments in the Maritimes, like elsewhere in Canada, have difficulty accepting that treaties between the Crown and Aboriginal peoples limit provincial jurisdiction in Crown lands.

1754–1814: The Zenith of Treaty Making

Overview

The most volatile era in the history of treaty relations between Aboriginal peoples and the Crown occurred between the outset of the Seven Years’ War in 1754 and the close of the War of 1812 in 1814. During this period, North America was the scene of intense warfare: first between imperial France and Great Britain; then between American revolutionaries and the loyalist proponents of a united empire; and finally between the armies of the United States and British imperial Canada. In all these conflicts, Aboriginal nations wielded considerable influence because of skilful diplomacy and because their fighting forces could effectively battle in conditions that were extremely difficult for European and Euro-North American soldiers.

Consequently, in the decades before the conclusion of the War of 1812—before relative peace descended on the new border separating British North America and the emergent American republic—various Aboriginal confederacies rose to prominence on the world stage. They made treaties, waged war and advanced their self-interests through foreign policies that affect the geopolitical shape of North America to this day. Researchers seeking to understand the contemporary constitutional meaning of Aboriginal and treaty rights, as recognized and affirmed in the country's supreme law, therefore must look to this era with particular care.

Treaties and the Seven Years' War

Responding to the power of the French-Aboriginal alliance, the British imperial government in 1755 took away the responsibility for Aboriginal treaty making from the colonies. Instead, a northern and southern branch of the British imperial Indian Department were created as extensions of the military and placed directly under the king’s authority. The northern branch, with Covenant Chain expert Sir William Johnson at its head, was essentially the first seed of government for English-speaking Canada. There is a direct line of administrative continuity between Johnson's department, which polished and extended the old Covenant Chain, and Canada's modern-day Ministry of Aboriginal Affairs and Northern Development. Sir William Johnson, with the help of his Mohawk consort and adviser, Molly Brant, successfully neutralized the old French-Aboriginal alliance during the Seven Years' War through a series of treaties that guaranteed the protection of Indigenous lands from acquisitive Anglo-American colonists.

After the British victory over the French in 1759 on the Plains of Abraham, Johnson made further agreements with the seven nations of Canada who inhabited Catholic missions near Lake Ontario and along the St. Lawrence Valley (see the Treaty of Oswegatchie 1760). These transactions promised the Aboriginal peoples security in regards to their lands, trade and religion. One of the transactions, the Murray Treaty of Longueuil (1760), was the subject of litigation that resulted in the groundbreaking 1990 Supreme Court ruling on the Sioui case.

The Royal Proclamation of 1763

Once the French army had been defeated in North America, the British government faced the question of how to conduct relations with the Aboriginal peoples who still dominated most of Canada. An emerging Aboriginal confederacy (spearheaded by the Odawa leader Obwandiyag, also known as Pontiac) captured nine British posts in Canada in the spring of 1763 and made this question even more pressing.

Sir William Johnson was pivotal in formulating the Royal Proclamation of 1763, which, in theory, created clear borders for the new British province of Québec and for the 13 Anglo-American colonies, and reserved the vast territory beyond the Appalachian Mountains for Aboriginal peoples.

The proclamation also laid out a procedure for the future opening of portions of Aboriginal territory for colonization and settlement by the Crown's non-Aboriginal subjects. That procedure established the basic principles for the negotiation of Crown-Aboriginal treaties in British North America and, after 1867, in the Dominion of Canada. The king decreed that no individual person or colony could purchase territory from Aboriginal peoples; instead, the British Crown was to be an essential actor in negotiating treaties.

Affirmed by Section 25 of the Constitution Act of 1982, the Royal Proclamation forms the constitutional basis for Aboriginal treaties. These principles are still being applied in modern-day treaties being made with Aboriginal peoples in, for instance, British Columbia (see Nisga’a).

The Treaty of Fort Stanwix, 1768

When the major fur-trade companies of Pennsylvania made claims against the British government for damages incurred during Pontiac's stand, Indian Department officials moved to compensate them through a major land transfer. The Fort Stanwix Treaty, the first major transaction negotiated according to the terms of the Royal Proclamation, moved the border between Aboriginal territory and the Anglo-American colonies significantly westward to the banks of the Ohio River. This led to the emergence of hard-line Shawnee leaders in the debate among the Aboriginal peoples of the Great Lakes–Ohio Valley area about who was authorized to cede land in treaties.

Treaties and Land Speculators

Sir William Johnson, who was a land speculator himself, hoped that the Fort Stanwix Treaty would satisfy the entrepreneurial wants of the business community in both the Thirteen Colonies and Britain. However, the deal only fed the speculators’ acquisitiveness.

Some of those speculators, whose political representatives included Benjamin Franklin in Pennsylvania and Lord Shelburne in Great Britain, attempted to counter the Royal Proclamation by insisting that Aboriginal nations could make land-ceding treaties directly with private colonization companies. Just when it seemed these powerful business interests were about to prevail, however, the British government responded in 1774 with the Québec Act, which favoured the fur-trade interests of Montréal over the land-speculation interests of Philadelphia and the treaty rights of Aboriginal peoples over the expansionistic aspirations of Anglo-American settlers. This act was a major factor in the outbreak of the American Revolution in 1776.

British Betrayal of Aboriginal Allies in the Treaty of Paris, 1783

While many Aboriginal peoples tried to avoid getting mired in the American Revolution, many others believed that a British victory would be the least threatening outcome. After all, it was the frustrated proponents of western expansionism who had driven the American Revolution forward. Those Mohawk who followed Joseph Brant had been especially active allies of the British. In spite of Indigenous peoples’ important role, the diplomats who redrew the map of North America after the war paid no heed to the heritage of Crown treaties with the Aboriginal peoples. In the Treaty of Paris, 1783, a new international border was created along the Great Lakes that ignored both the Covenant Chain and the Treaty of Fort Stanwix. Indigenous nations were not invited to the Paris negotiations even though it was their lands that were traded back and forth.

Many Indigenous peoples, together with officials of the British army in North America, were thunderstruck at this betrayal. To meet the resulting crisis, Québec Governor Frederick Haldimand made treaties in 1784 with the Mississauga north of Lake Ontario to open two large plots for those Six Nations people who opted to migrate rather than live under the jurisdiction of the United States and New York State.

In the years ahead, Brant chose to sell individual parcels of his people's Grand River lands, which were part of the Haldimand Grant. He based this right to sell lands directly (at full market value) to non-Aboriginal buyers on the claim that his community was not limited by the Royal Proclamation, which prohibited transfers of Aboriginal territory to anyone but the British sovereign.

Greater Canada and the Crown-Aboriginal Alliance

Haldimand also prevailed in the decision of the British to retain possession of the military posts south of the Great Lakes as support for the Montréal-based fur trade, whose hinterland continued to include the northern Mississippi Valley. Similarly, retention of southernmost posts of greater Canada signalled to the Aboriginal peoples west of the Ohio River continued imperial support for resistance to the US government’s agenda of westward expansion.

The system of treaty alliance between the Crown and the Aboriginal peoples of Canada briefly recovered from the diplomatic setback of 1783. Indeed, on the commercial level the alliance expanded and flourished as never before. That expansion was marked in the growth and prosperity of Montréal whose leading entrepreneurs organized the North-West Company (NWC). Not only did the NWC hold and develop its trade network throughout the northern Mississippi Valley and thereby strengthen the Crown's alliances with Aboriginal peoples there, the NWC's agents were also led by Aboriginal guides to the West Coast and the northwesterly reaches of present-day Canada.

In so doing, these NWC geographers, traders and diplomats, including Peter Pond, Alexander Mackenzie and David Thompson, expanded the influence of British imperialism and Canadian commerce throughout wider expanses of Aboriginal territory. They competed against the Hudson’s Bay Company (HBC), who since 1670 had developed an extensive commercial presence among the Aboriginal peoples of what was then called Rupert’s Land and the North-West Territories. Elaborate protocols of diplomatic and economic relations — visible manifestation of treaty relations — developed between Aboriginal peoples and HBC officials. These ceremonial aspects of Aboriginal-HBC negotiations came into play later in the 19th century when Crown officials negotiated the Numbered Treaties to facilitate the expansion of the Dominion of Canada.

Treaties and Aboriginal Title

Aboriginal peoples refused to accept the new international boundary that cut their ancestral territory in half, or that their lands south of the new border now belonged to the United States. Officers of the British Imperial Indian Department, many of whom had Aboriginal ancestors, wives and mixed-ancestry children, tended to share this consternation. Under their urging, the British government developed the official position that Britain had not actually ceded to the United States the lands north of the Ohio River and south of the Great Lakes. All that had been transferred was the British sovereign's exclusive right to purchase land from Aboriginal peoples through treaties according to the principles outlined in the Royal Proclamation.

Not surprisingly, the US government resisted this interpretation. In 1790 and 1791, however, the small and ill-organized army of the weak federal government were twice defeated by the well-armed fighting forces of a resurgent Aboriginal confederacy, also known as Tecumseh’s Confederacy.

In 1793, the US president, George Washington, accepted that Aboriginal nations retained the great country west of the Ohio River. This acknowledgement has major constitutional implications to this day, when there is still considerable argument about whether Aboriginal title is merely a right to occupy and use land, or whether this right runs deeper to, for instance, ownership of subsurface mineral rights.

A Sovereign Aboriginal Nation-State

Aboriginal victories over the American army prompted the British government to adopt a new strategy that was the most ambitious expression of the treaty alliance system between the Crown and Aboriginal peoples. The imperial government planned to encourage the confederacy to the point where that polity could assert international sovereignty over the lands between the Ohio River and the Great Lakes. The envisaged country, which would probably have been called Indiana, was also known as the Indian Buffer State.

In the eyes of British imperialists, this sovereign Aboriginal nation-state would have shielded what remained of British North America from the expansionistic designs of the new American republic, whose most aggressive ideologues increasingly viewed North America through the lens of manifest destiny and imagined that the entire continent was the United States' God-given inheritance.

Jay’s Treaty, 1794

The prospects for creating the new Aboriginal nation-state became dim when the confederacy suffered defeat at the Battle of Fallen Timbers. As a result, British officials agreed to abandon the posts south of the Great Lakes. The terms of this 1794 agreement, known as Jay’s Treaty, also stipulated that Aboriginal peoples could freely cross the international border. This stipulation was included largely so that the Montréal fur-trade would not be cut off from its commercial relations with Aboriginal peoples in the northern Mississippi Valley.

Although Jay’s Treaty is not technically an Aboriginal treaty, its terms have had important ramifications. The US government has honoured the agreement to the extent that Registered Indians from Canada have been able to live and work in the United States without restriction. The treaty is not recognized as binding by Canada — a position that is periodically challenged, especially by those Aboriginal nations such as the Six Nations, Ojibwa and Blackfoot peoples, whose lands are bisected by the border.

Tecumseh and Indian Treaties as Instruments of International Law

The prospects of a sovereign nation-state for the confederacy re-emerged in the first decade of the 19th century as relations between Great Britain and the United States deteriorated. At the movement’s heart were two Shawnee brothers who urged Aboriginal unity to defend their dwindling lands.

At first, the religious visionary Tenskwatawa was the more influential of the siblings. When he related his prophetic revelations to others, Algonquian-speakers of several nationalities flocked to his side, creating the new community of Prophetstown, south of Lake Michigan.

Tecumseh, the Shawnee prophet's brother, gave the movement political direction. As war between the United States and Britain became imminent, Tecumseh advocated coordinated action. Tecumseh aimed to elevate Indigenous treaty-making authority above the level of domestic contract to the level of full-fledged international relations. To assert this degree of sovereignty, the confederacy would need a central government, a strong fighting force and a powerful ally. Great Britain could be that ally, though it fell primarily on Aboriginal peoples to generate the unity that was needed to counter the American plan to absorb Aboriginal territory.

The War of 1812

The Shawnee strategists' independence was compromised in 1811 after General William Henry Harrison’s American forces overran the confederacy's capital at Tippecanoe. This forced Tecumseh to form closer links with the British Imperial Indian Department, and Tecumseh accepted a commission as brigadier general of the British army.

When trade embargoes and conflicts at sea finally sparked the War of 1812, the rapid mobilization of the confederacy's fighting forces were a deciding factor in the early course of the conflict. Especially decisive was the role of the Aboriginal peoples in the British takeover of Michillimackinac and Detroit. The events of 1812, therefore, vindicated, for the British, the utility of the treaty system.

Other Consequences

For those on the Aboriginal side of the alliance, the outcome was more tragic. After Tecumseh was killed in battle in 1813, the confederacy largely disintegrated. In the years that followed, the Americans largely destroyed the Aboriginal territory east of the Mississippi. Rather than move West, however, many Indigenous people from south of the Great Lakes migrated across the border that was established in 1783 but not solidified until 1814, when the Treaty of Ghent ended the War of 1812.

Pre-Confederation Treaties

The Mississauga and Other Upper Canadian Treaties

When the Loyalists moved to Québec in the years after the American Revolution, the provisions of the Royal Proclamation were loosely applied in obtaining permission of the Mississauga peoples for this influx. This migration resulted in the division of Québec into two jurisdictions, Lower and Upper Canada.

Canadian Governor General Lord Dorchester attempted to correct the Crown's sometimes careless approach to treaty making in 1794. In preparing to move the capital of Upper Canada from Niagara-on-the-Lake to York, now the site of Toronto, it was discovered that there was little evidence to prove the Crown had properly documented the purchase of the site. Lord Dorchester directed that a new agreement be made with the Mississauga. Realizing the importance of the Crown-Aboriginal alliance to Canada’s security, he directed that all future treaties should be conducted "with great Solemnity and Ceremony according to the Ancient Usages and Customs of the Indians."

These instructions renewed a tradition that, with a few notable lapses, was generally followed in the making of subsequent treaties, and included a strict prohibition on distributing alcohol during negotiations. This contrasts with the United States, where the practice was relatively common.

Before the end of the War of 1812, treaties with the Mississauga north of the Great Lakes were negotiated with the Aboriginal confederacy’s diplomats, whose objective was to secure recognition of their nation-state. After 1814, Aboriginal peoples’ bargaining power diminished, although the martial character of the old alliance was renewed until the late 1850s, at annual ceremonies at British posts on the Great Lakes, where Crown officials distributed presents to Aboriginal veterans and their families.

By the mid-1830s, treaties covered most of the arable lands in Upper Canada. These treaties involved an initial distribution of goods and money with promises of small annual payments. Only gradually did the principle develop that agreements should include allocation of reserves.

The Bond Head Treaties, 1836

In 1836, Lieutenant-Governor Sir Francis Bond Head dramatically shifted Aboriginal policy. He negotiated treaties with a variety of Aboriginal groups, including the Wyandot ( or Huron) near Windsor, Ontario, the Saugeen Anishnabek, and a group of largely Protestant Anishinabek who had established a transportation company along the strategic old Toronto Portage route between Lake Simcoe and Georgian Bay. Bond Head's objective was to cancel all efforts to remake Aboriginal peoples in the image of Christian Euro-Canadian farmers. Instead, he wanted to move farming Aboriginal peoples to Manitoulin Island, where they could hunt and fish in isolation from the corrosive forces of “civilization” — and also fulfil the lieutenant-governor’s stereotype of noble savagery.

Manitoulin was designated permanent Aboriginal territory in a treaty at the gift-distribution ceremonies at Manitowaning in 1836. The plan was to use Manitoulin to receive not only the displaced Aboriginal agriculturalists from Upper Canada, but also the expected Aboriginal refugees from south of the Great Lakes, whose lands the American government now claimed.

Because Bond Head's plan seemed consistent with the rudimentary apartheid then being advanced by the British government in South Africa, the plan was initially accepted by the British Colonial Office. Soon, however, Bond Head's dubiously transacted treaties attracted the ire of the Aborigines' Protection Society, a Protestant coalition in Britain. Largely because of this activism, the Colonial Office reverted to the policy first adopted in 1830 of encouraging Aboriginal peoples to adopt the ways of their Euro-Canadian neighbours. Imperial authorities, however, never annulled the Bond Head treaties, which the Aborigines’ Protection Society considered unjust land deals aimed at satisfying the land hunger of the lieutenant-governor's political friends.

Bond Head never succeeded in persuading Aboriginal peoples in the more arable southern lands to move to Manitoulin. In fact, in negotiating with the Saugeen people, he found they mostly wanted a commitment that the Crown would protect their ancestral land from squatters. In response, Bond Head promised the Saugeen that "proper Houses shall be built for you, and proper Assistance given to enable to become civilized and cultivate Land, which your Great Father engages for ever to protect for you from the Encroachments of Whites."

These words capture the trade-offs involved in this and many subsequent treaties. In many treaties, Aboriginal peoples agreed to open the majority of their lands for non-Aboriginal settlement in return for secure tenure in smaller areas. In addition, in many treaties, the government promised sufficient resources and education to adapt to the new economic and social modes of life.

The Robinson Treaties

Robinson Treaties.
(courtesy Victor Temprano/Native-Land.ca)

The concept of reserves was advanced in 1850, when Crown representative William Benjamin Robinson secured agreement from Aboriginal leaders to "cede, grant, and convey unto Her Majesty" about 50,000 square miles (129,500 km2) north of the upper Great Lakes. These transactions, known as the Robinson-Huron and Robinson-Superior treaties, provided for the creation of 21 new reserves, each to be held by the Crown for the "use and benefit" of the groups whose leaders' names and marks were on the agreements.

Also part of the bargain were initial payments worth £4,000, plus "perpetual" annuities valued at £1,100. Officials of what was by then called the Province of Canada had been pressured to authorize treaty negotiations by both Governor General Lord Elgin and Chief Shinguakouce and his followers. In a relatively minor 1849 confrontation given the overblown title of the Michipicoten War, the latter had asserted their uncompromised interest in Precambrian Shield, where Canadians had already begun minor mining operations.

In the Robinson Treaties, the Crown promised that Aboriginal peoples could hunt and fish throughout the ceded territory "as they have heretofore been in the habit of doing." This promise, the first of its kind in an Aboriginal treaty, was made, Robinson explained, so that Aboriginal peoples could not make future claims in return for loss of "their usual means of support."

Saugeen and Manitoulin Treaties

Manitoulin Treaty.
(courtesy Victor Temprano/Native-Land.ca)

The two final major pre-Confederation treaties were signed in 1854 and 1862. They cover the Saugeen Peninsula north of Owen Sound and part of Manitoulin Island on Lake Huron. By the terms of the 1836 Bond Head treaties, both of these regions had been reserved for Aboriginal peoples, which heightened the acrimonious atmosphere that generally characterized the remaining pre-Confederation treaties.

In both instances, Aboriginal sanction was secured under sordid and somewhat dubious legal circumstances. Crown regard for Aboriginal interests seemingly had diminished along with Aboriginal military significance.

The Saugeen and Manitoulin treaties stipulated that the Aboriginal peoples involved would be paid regular interest on funds from all Crown sales of the ceded territories. This promise, a future subject of controversy, proved insufficient to win the participation of an entire community of Roman Catholic Odawa on the eastern portion of Manitoulin Island. With support from their Jesuit missionaries, these Odawas successfully resisted signing the Manitoulin treaty. To this day, Wikwemikong, Ontario, remains an unceded Aboriginal reserve.

Post-Confederation Treaties

The Numbered Treaties

The Numbered Treaties.
(courtesy Victor Temprano/Native-Land.ca)

The 11 Numbered Treaties were negotiated between 1871 and 1921 as the Dominion government sought to extend its sovereignty over western (and portions of northern) Canada. Confederation in 1867 set the stage for Canada's purchase, from the Hudson's Bay Company, of Rupert's Land and the North-West Territories. As a result of the transfer, the Canadian government legally assumed responsibility for the "protection" and "well-being" of the region's Aboriginal peoples.

The duty of compensating Aboriginal peoples for their interest in the annexed territory also fell to Canada. Hence, the treaty-making system that had evolved in Upper Canada was exported westward. Further development of the treaty system was based as much on economic pragmatism as it was on any conception of Aboriginal rights. During the 1870s, the US government spent over $20 million a year fighting Plains peoples. This amount was larger than the entire budget of Canada, and so federal officials relied on treaties to ensure a relatively peaceful acquiescence to Euro-Canadian settlement from the territory’s 35,000 Aboriginal inhabitants.

Crown officials negotiating the first Numbered Treaties were instructed to offer terms similar to those in the Robinson Treaties. The Aboriginal delegations in these and subsequent bargaining sessions, however, made it clear that more was expected. Aboriginal participants were navigating increasingly circumscribed options. Aboriginal peoples sought to cope with the destruction of Indigenous economies — notably, the decimation of the buffalo on the prairies — through treaties. The spirit and intent of 19th- and early 20th-century treaties, from some Aboriginal peoples’ perspectives, thus includes a commitment from the Canadian government for the instruction and material aid necessary for transitioning to a new way of life.

Métis Scrip

The Canadian government attempted to acknowledge the special relationship of the Métis to the treaty proceedings, by paying “half-breeds” for their Aboriginal inheritance with dollar-valued land certificates known as scrip. Efforts to implement this program were often undermined by the largely fraudulent activities of "jobbers," who amassed the majority of the resources originally earmarked for the Métis communities.

The North-West Mounted Police

The newly formed North-West Mounted Police (NWMP) became an important factor in the negotiation process. Following their arrival in 1874 in present-day southwest Alberta, the NWMP became influential among the Siksika, Piikuni, Kainai, Tsuu T’ina, and Stoney-Nakoda. The police force earned esteem by protecting Aboriginal peoples from American whisky traders. In this atmosphere of relative law and order, Crowfoot, Red Crow and other leaders signed Treaty No 7.

Modern Treaties

It was in Ontario and the Prairie provinces, then, where the development of a system of land tenure was most firmly founded on Aboriginal treaties. Elsewhere in the country (i.e., most of British Columbia, the Yukon, the Northwest Territories, Québec and the Maritimes), non-Aboriginal settlement proceeded without purchase of Aboriginal title. Even so, reserves were allocated that became the home of registered Aboriginal peoples who, while lacking treaties, nevertheless fell under the direct administrative control of Aboriginal Affairs and Northern Development.

This ministry has felt itself more governed by the federal Indian Act than by Aboriginal treaties. Hence, the fine legal distinctions between Treaty Indians and registered Aboriginal peoples not covered by treaties have blurred under the standardizing regime of the Indian Act. As well, throughout most of the 20th century there has been little inclination on the part of the majority population to grapple with the legal fact that Aboriginal title has never been extinguished over large parts of the country.

Aboriginal peoples from British Columbia were largely responsible for breaking through the weight of political inertia that had set in around Aboriginal land question since the early 1920s. Although some treaties had been made in the 1850s on Vancouver Island, officials since then have consistently resisted the view that Aboriginal peoples in the province have inherent Aboriginal rights. The Nisga’a people of the Nass River Valley have long opposed this position. Their activism eventually resulted in the Supreme Court of Canada’s split 1973 decision that suggested Aboriginal title endures throughout most of British Columbia. This ultimately resulted in the successful Nisga'a land claim—the first treaty in British Columbia since 1899.

The Nisga'a case was one of several key developments that helped cast Aboriginal rights into the spotlight in Canada during the 1970s. The pivotal event had been the publication in 1969 of a federal White Paper on Aboriginal policy, which reflected the ideology of Prime Minister Pierre Trudeau. He advocated ending treaties and thereby removing special status for Aboriginal peoples.

To Trudeau, who also opposed special constitutional status for the Province of Québec, it was an "anomaly" to have treaties between groups within Canada. Aboriginal peoples strongly opposed the White Paper, and became far more organized and vocal as a result. Their bargaining was strengthened in 1973 by the Supreme Court's Nisga'a decision. The result was a change in federal policy.

An Office of Native Claims (ONC) was established to resolve Aboriginal land disputes. The ONC defined two types of claims, specific and comprehensive; the latter, in essence, are modern-day treaties. The Specific Claims Tribunal (2008) has since supplanted the ONC. A comprehensive claim can be made for any part of Canada where Aboriginal title has never been ceded.

James Bay and Northern Quebec Agreement.
(courtesy Victor Temprano/Native-Land.ca)

The 1975 James Bay Agreement could be described as a modern-day treaty. As in earlier times, a move to open up a new resource frontier — in this case, the hydroelectric potential of the rivers flowing into the eastern half of James Bay — led to the negotiations with Aboriginal peoples. Although the enormous hydroelectric project was initiated in the early 1970s without their sanction, the area's Cree and Inuit asserted their unceded Aboriginal rights through the courts and the media.

In the complex settlement that resulted, new features were added to the older treaty template. Most significantly, the agreement established a basis for various institutions of Cree and Inuit self-government, such as school boards, and health and social service agencies. In 1978, the Northeastern Québec Agreement was concluded with the Naskapi band of Shefferville. It is basically an adjunct of the James Bay Agreement.

The negotiation of modern-day treaties stagnated during Prime Minister Brian Mulroney’s first term. Relegating Aboriginal affairs to a low priority between 1984 and 1988, however, backfired during Mulroney's second term. In June 1990, Elijah Harper, an Oji-Cree MLA from Manitoba, blocked a sweeping revision to the Canadian Constitution negotiated at Meech Lake (see also Meech Lake Accord: Document) by the 11 first ministers without Aboriginal representation. The next month, an argument between the Mohawk of Kanesatake and the town council of Oka over a proposed golf course flared into an armed standoff (see Oka Crisis).

These tumultuous events led to the infusion of new political capital into Aboriginal affairs. In 1991, a Royal Commission on Aboriginal Peoples was created just as a surge of political will was invested into modern-day treaty making.

Nunavut, Gwich'in, and Sahtu Dene and Metis land claim agreements.
(courtesy Victor Temprano/Native-Land.ca)

This surge was mostly evident in the territories north of the 60th parallel, where bilateral negotiations led to the making of the Gwich’in Comprehensive Land Claim Agreement in 1993, the Nunavut Land Claims Agreement in 1993, the Sahtu Dene and Métis Comprehensive Land Claim Agreement in 1994, and the Umbrella Final Agreement with the Council for Yukon Indians, also in 1994.

Building on the James Bay Treaty (1975) and the Inuvialuit Treaty (1984), more recent treaties enable Aboriginal communities to set up municipal and corporate structures to provide services and to participate as shareholders in the exploitation of natural resources.

Nisga'a territory included in their 1996 agreement with British Columbia.
(courtesy Victor Temprano/Native-Land.ca)

The negotiation of modern-day treaties has been especially difficult in the Canadian provinces, where three rather than two kinds of government must agree in order to reach resolution. Nevertheless, in 1992 negotiations with some BC Aboriginal nations began. That led to the basic outlines of an agreement in 1996 with the Nisga'a people. The deal puts the Nisga'a in control of 5,180 of the 62,160 km2 of their ancestral territory.

Territory included in agreements between British Columbia and the Tsawwassen and Maa-nulth.
(courtesy Victor Temprano/Native-Land.ca)

In keeping with the historic role of the Nisga'a in forcing the issue of unrecognized Aboriginal title, their treaty sets precedent. Behind the Nisga'a are over 50 other BC Aboriginal nations negotiating similar agreements (the final agreements for the Tsawwassen First Nation and the Maa-nulth First Nations have taken effect as of April 2009 and April 2011, respectively). All of these nations together might end up with title to about five per cent of British Columbia, an amount that roughly corresponds with the Aboriginal proportion of the overall BC population.

In a historic decision on 26 June 2014, the Supreme Court of Canada granted the Tsilhqot’in Nation title to 1,700 km2 of land in BC. With the ruling the Tsilhqot’in have exclusive rights to the land and any associated benefits and profits, and must grant their consent before any economic development occurs.

Significantly, the ruling clarifies the meaning and criteria for establishing Aboriginal title. In order to establish title, an Aboriginal group must prove continual and exclusive occupation. In addition, Aboriginal groups with legitimate claims — whether ongoing, settled, or merely possible — must be consulted and grant consent before economic development may proceed.

Conflicting Views

British Columbia treaties have been criticized by both Aboriginal and non-Aboriginal people. Some non-Aboriginal critics charge that modern treaty making puts too much emphasis on race and ethnicity. Echoing the 1969 White Paper, members of the Reform Party of Canada tended to lobby against the treaty system, arguing that it undermines individual equality and one law for all Canadians. This political position is expressed by the BC Foundation for Individual Rights and Equality, an organization partially modelled on groups in the United States that advocate for non-Aboriginal people who own plots amid American Indian reservations.

Aboriginal activists in British Columbia and elsewhere have also criticized the Nisga'a treaty. The critique tends to focus on concessions the Nisga'a have made in regards to federal and provincial taxation. An extreme form of protest was manifest at the armed stand made by the Defenders of the Shuswap Nation at Gustafsen Lake in the summer of 1995. This group, whose members drew their ideas and style partially from the American Indian Movement, questioned the legitimacy of a process that they said used the imagery of treaty making to cover over the old patterns of colonization: co-optation of Aboriginal elites; dispossession through the extinguishment of Aboriginal rights; and cultural genocide through the assimilation of Aboriginal peoples into the Euro-Canadian mainstream.

Another Aboriginal critique of treaties involves concern that modern-day treaties should not use the language of surrender and extinguishment. As the Nisga'a Tribal Council asserted in a submission to the federal government, "Extinguishment severs a First Nation's link with our past… Canadians must come to understand that our enjoyment and use of our lands and resources in the years to come is based not on a grant from the Crown, but is a vital part of our ancestral inheritance."

Any debate over surrender and extinguishment must grapple with the federal government’s fiduciary obligation towards Aboriginal peoples. This obligation, which was given clear judicial articulation by the Supreme Court in the 1984 Guerin case, derives from the Royal Proclamation of 1763 and other legal instruments. At its most extreme, this trustee-like role of Aboriginal peoples turned them into wards of the state.

The question arises of how the government of Canada could fulfil its fiduciary responsibility in treaties in which Crown officials had Aboriginal negotiators sign documents that extinguished Aboriginal rights. How could the Crown be the chief beneficiary of treaties that formalize the surrender of these rights? Were Crown officials in a position of conflict of interest?

Manitoba Judge A.C. Hamilton addressed these issues in a 1995 report to the minister of Aboriginal Affairs and Northern Development entitled A New Partnership. He wrote: "It appears to me that the demand that one party sign a surrender of rights recognized and affirmed by the Constitution is a flagrant breach of the Crown's fiduciary obligation." Judge Hamilton proposed several options on how modern-day treaties might be worded to avoid the pitfalls of extinguishment while providing non-Aboriginal interests with assurances that their land titles would be safe from challenge.

Excluded Groups

There are still Aboriginal groups whose representatives were not present at treaty negotiations. The most famous such group is the Lubicon Cree, whose ancestors were not present in the making of Treaty 8 in 1899. The reserve-less Lubicon, whose territory is in the midst of Alberta's lucrative oil patch, have faced tremendous resistance, both politically and in the courts, in their search for a settlement. They have been frustrated in their efforts to find a secure niche through a modern-day treaty.

Other Aboriginal groups excluded from the treaty system include the Teme-Augama Anishnabai, the people of the tiny overpopulated Long Lake 58 reserve, and the people of the Pic-Heron Bay reserve. These communities were passed over in the 1850 negotiation of the Robinson Treaties.

Ntesinan

After extensive international lobbying, the Innu of Labrador finally entered into treaty negotiations in 1996 with Canada and Newfoundland. The major motivation beneath the negotiations is the discovery and purchase by Inco of a huge nickel deposit at Voisey's Bay in Labrador. Before the discovery, the Innu had successfully drawn attention in Europe to their assertion of Aboriginal title in their lands, which they call Ntesinan. The Innu particularly resisted the low-level jet training facility in Goose Bay. This criticism gained the attention of peace activists and environmentalists, who used their influence to publicize the effect of NATO’s war preparations on Innu hunting culture. In appealing to international public opinion, the Innu employed tactics similar to those of the Lubicon Cree in their (ultimately frustrated) efforts to make a modern-day treaty as a means to survive as a distinct Aboriginal society.

Treaties in Canada's Constitutional and International Law

Patriation and the Constitutional Conferences

Aboriginal and treaty rights have been a controversial and difficult issue during the patriation of the Canadian Constitution with a Charter of Rights and Freedoms.

On 5 November 1981, nine provincial governments (excluding Québec) entered into the federal government's patriation plan on the condition that Aboriginal and treaty rights be stripped from the draft constitution.

However, a compromise was soon reached. Section 35 of the Constitution Act recognizes and affirms existing Aboriginal and treaty rights. Premier Lougheed of Alberta was instrumental in inserting the word "existing," expecting this would lead to a more limited judicial interpretation of Section 35.

Aboriginal peoples argued that Canada lacked authority to sever the relationship between Aboriginal peoples and the imperial Crown without consent. Their challenge to the legality of patriation ultimately led to Chief Justice Lord Denning’s judgement of January 1982, in which he confirmed that treaty relationships entered by Indigenous peoples in Canada before 1923 had indeed been with the Crown in respect of the United Kingdom. Through constitutional evolution, however, the treaty rights of Aboriginal peoples had come to be vested with the Crown in the right of Canada. "No parliament," proclaimed Lord Denning, "should do anything to lessen the worth of these guarantees."

Aboriginal peoples held to their conviction that Aboriginal self-government is an inherent right, and must be constitutionally recognized as such. In the 1987 Meech Lake Accord, the first ministers, while recognizing Québec as a "distinct society," failed to recognize this right. This failure led to Elijah Harper’s stand on the floor of the Manitoba legislature, which contributed to the Meech Lake Accord’s demise and the armed standoff at Oka.

The Charlottetown Consensus Report

Four Aboriginal organizations, including the Assembly of First Nations, were included in the next round of constitutional deliberations. These deliberations culminated in the Charlottetown consensus report, which was subjected to a national referendum in 1992. The Charlottetown document, which was approved by the federal and provincial governments of Canada, included a proposed addition to Section 35 stating, "the Aboriginal peoples of Canada have the inherent right of self-government within Canada." The word "inherent" was intended to demonstrate that the right was derived not from the Crown but rather from the histories, distinct identities and self-determination of Aboriginal peoples whose existence predates that of Canada.

The Charlottetown document was rejected as a basis for constitutional amendment by a majority of Canadians in all jurisdictions except Ontario. While most Inuit voters happily sanctioned the deal, Aboriginal voters largely rejected it. This rejection marked a lack of confidence at the grass-roots level in the Assembly of First Nations. In the Prairie provinces, the Aboriginal rejection was also an expression of unhappiness with the format of multilateral negotiations. By its very nature, this federal-provincial-Aboriginal format undermined the integrity of bilateral, nation-to-nation treaty making with the Crown that in the view of many Aboriginal peoples still defines their alliances with the Canadian state.

Treaties and Québec

The provincial election of the Parti Québécois government (1994) and the referendum on sovereignty (1995) highlighted treaty issues in a debate about partitioning Québec if Québec declares independence.

One of the key participants was Mathew Coon Come, Grand Chief of the Cree (of Québec). In a Cree referendum during the Québec sovereignty referendum, 95 per cent of Chief Coon Come's people voted to maintain their alliance with Canada even if the government of Québec declared independence. A referendum of the Québec Inuit had similar results. Chief Coon Come then asserted that if Canada is divisible, so is Québec.

Coon Come based his position largely on the James Bay and Northern Québec Agreement of 1975. He explained, "Only sovereigns have the Treaty making power, and Québec as a province and not a State, does not have this power. The Treaty making power rests exclusively with Canada and the Aboriginal peoples."

Treaties and International Law

In 1987, the United Nations Working Group on Indigenous Populations began a global study of "treaties, agreements and other constructive arrangements between states and Indigenous population." The government of Canada attempted to derail the study, arguing that an international "focus on Treaties distorts the debate about Aboriginal peoples, whose plight today stems in most cases not from treaties or from a lack of treaties, but rather from their systematic exclusion from the economic, social, cultural and political life of the countries in which they live."

In spite of Canada's intervention, the UN treaty study continued under the direction of Cuban Special Rapporteur Miguel Martinez. In 1989, he visited the Onion Lake reserve in Saskatchewan to hear testimony from Treaty Indians. He issued a progress report in 1992, and his final report was published in 1999. His work influenced the UN’s Declaration on the Rights of Indigenous Peoples, adopted on 13 September 2007, Article 37 of that declaration reads: “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.”

Treaties and NAFTA

In spite of Aboriginal peoples’ efforts to gain recognition of their treaties as proof of their capacity to act as equals in international relations, the Government of Canada continues to maintain that these agreements lie exclusively within domestic law. This position was demonstrated in 1993 and 1994, when the Governments of Canada, the United States and Mexico instituted a new treaty that remade the commercial map of North America as a cohesive trading block. The negotiations that led up to the North American Free Trade Agreement (NAFTA) included no place for Aboriginal delegations. This sparked an uprising in Chiapas, Mexico, on 1 January 1994, the day the treaty came into force.

The politics of exclusion in NAFTA echoes the assumptions manifest in the making of the Treaty of Paris in 1783, in the transfer of the HBC titles to the Dominion of Canada in 1869–70, and in the making of the Meech Lake Accord in 1987.

Summary

Treaties constitute a thread of continuity woven through the earliest beginnings of the Canadian state until today. According to words spoken at some negotiations, they are to last "as long as the sun shines and the water flows."

The ornate script covering the older treaties expresses the British legalistic and imperialistic frame of mind. On the documents, Aboriginal leaders often marked their approval by drawing a picture of the animal totem of their clan. In these designs, different attitudes towards law, government, nature and society have been incorporated, however imperfectly, within the institutional structures of Canada.

Treaties have been viewed as everything from domestic contracts to international treaties between sovereign powers. In spite of inadequacies in the negotiation, maintenance, and renewal of Aboriginal treaties, the process itself demonstrates that Canada has grown and developed according to constitutional principles wherein recognition of Aboriginal rights is essential. These founding agreements between peoples constitute fundamental features in the unfolding drama of Canadian federalism. As Canada becomes home to an increasingly diverse population, the task of interpreting the significance of Aboriginal treaties for new generations of Canadians becomes ever more challenging.