Indigenous treaties in Canada are constitutionally recognized agreements between the Crown and Indigenous peoples. Most of these agreements describe exchanges where Indigenous nations 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 by Indigenous people, as sacred covenants between nations that establish a relationship between those for whom Canada is an ancient homeland and those whose family roots lie in other countries. Treaties therefore form the constitutional and moral basis of alliance between Indigenous peoples and Canada.
(This is the full-length entry about Treaties with Indigenous Peoples In Canada. For a plain language summary, please see Treaties with Indigenous Peoples in Canada (Plain Language Summary).
For Indigenous peoples, the sacred 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 Indigenous languages, at the time of the negotiations. In addition, 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 Indigenous peoples look to their elders who are schooled in oral histories as the highest authorities on the spirit and intent of the treaties.
For the Crown, the principles for treaty making with Indigenous 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 treaties between Indigenous peoples and the Crown was renewed in the Constitution Act, 1982, which describes itself as “the supreme law of Canada.” Section 35 of that document both recognizes and affirms “existing Indigenous and treaty rights” (see Rights of Indigenous Peoples.)
Court rulings since then have continued to shape treaty relations between the federal government and Indigenous peoples. For example, in the Sioui case (1990), the Supreme Court of Canada 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 a principle adopted from a ruling in the United States in 1899 that 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, the non-Indigenous peoples who made and implemented them tended to see them as self-serving deals rather than sacred pacts between independent nations. Historically, non-Indigenous treaty negotiators believed treaties were inexpensive and convenient ways to strip Aboriginal title (i.e., ownership) from most of the lands in Canada so that resources could be used by settlers (see Indigenous Territory.) Even in modern times, the federal and provincial governments tend to interpret treaties in legalistic terms, contending that Indigenous peoples “ceded, surrendered, and yielded” their ancestral rights and titles through treaties. In other words, treaties can be seen as real estate deals by which the Crown purchased Indigenous lands and provided them with reserves and one-time or continual payments in return (see Treaty Day.)
This narrow view of treaties has produced a huge divide between the Canadian government’s perspective and that of Indigenous peoples. On the one hand is the government’s view of treaties as legal instruments that surrendered Indigenous rights. On the other is the Indigenous view of treaties as instruments of relationships between autonomous peoples who agree to share the lands and resources of Canada. Seen from the Indigenous perspective, treaties do not surrender rights; rather, they confirm Indigenous rights. Treaties recognize that Indigenous peoples have the capacity to self-govern. Bridging the gap between these two views of treaties poses a huge challenge to people and lawmakers in Canada.
The complex history of treaty making in Canada can be explored by examining four significant eras: early treaties made before the Conquest, those signed between 1763 and Confederation, treaties made between 1867 and the first modern treaty in 1975, and those negotiated from 1975 to the present. A close look at treaties in the context of constitutional and international law also reveals much about the place of treaties in Canada’s domestic and international affairs.
There is another tradition of treaty relations which has also been described as the Covenant Chain. This tradition links the British Crown to Mi’kmaq, Passamaquoddy and Wolastoqiyik (Maliseet) peoples, whose ancestral lands cover most of the Maritimes, as well as parts of the Gaspé Peninsula. Unlike treaties made after the Royal Proclamation, the Maritime treaties do not focus on the question of land ownership. Instead, these agreements, whose keystones include the Boston Treaty of 1725–26 and the Halifax Treaty of 1752, were primarily mutual promises of peace and friendship. The agreements also guarantee the Indigenous right to trade without hindrance and the right to fish and hunt in their customary manner. They also pledge regular supplies of food, provisions and ammunition from the Crown.
In this era, the Mi’kmaq and Wolastoqiyik were overwhelmingly Roman Catholic. They commonly had very close relationships to their priests, as well as to their French-speaking Acadian neighbours, with whom they intermarried (see Acadia.) As a result, often 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 Halifax 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 had difficulty accepting that treaties between the Crown and Indigenous peoples limit provincial jurisdiction in Crown lands.
Today, Treaty Day in Nova Scotia commemorates the special relationship between the Mi’kmaq and the Crown. Celebrated annually on 1 October since 1986 (the year after the Simon case), this day honours the signing of the 1752 treaty.
Treaties and the Seven Years’ War in North America, 1754 to 1763
The Seven Years’ War (also known as the French and Indian War) was a time of violence in North America, first between the French and British, and later between the British and the Americans. In all of these conflicts, Indigenous nations wielded considerable influence because of their skilful diplomacy and because their fighting forces could effectively battle in conditions that were often extremely difficult for European and North American soldiers.
In the years leading up to the war, the British knew that their enemies, the French, had already made strong alliances with Indigenous peoples. They too wanted to forge strategic bonds with First Nations. Therefore, in 1755, the British imperial government in London took over the responsibility of treaty making from the colonies. A northern branch and southern branch of the British Imperial Indian Department, roughly separated by the Potomac and Ohio Rivers, 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 a source of further government growth and development 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 Indigenous and Northern Affairs Canada.
Through a series of treaties, Sir William Johnson, with the help of his Mohawk consort and adviser, Molly Brant, successfully neutralized the old French-Indigenous alliance during the Seven Years’ War. These treaties guaranteed the protection of Indigenous lands from Anglo-American colonists looking to take over lands north of the border. After the British victory over the French on the Plains of Abraham, Johnson made agreements with the Seven Nations of Canada (comprising of Mohawk, Abenaki, Anishinaabeg, Huron and Onondaga peoples) who inhabited Catholic missions near Lake Ontario and along the St. Lawrence Valley (see St. Lawrence River), to provide security with regards to their lands, trade and religion. One of these treaties was the Treaty of Oswegatchie in 1760. Another, in the same year, was the Murray Treaty of Longueuil, a peace treaty signed by General James Murray that was designed to provide the Huron with military protection and other freedoms and rights after the French retreated. The Sioui case in May 1990 tested the durability of this treaty. In that year, the Supreme Court of Canada ruled in a groundbreaking decision that the Québec and Canadian governments had infringed on the Huron’s rights to their traditional territory, as established by the Murray Treaty of Longueuil. The court ruled that the occupation of the territory in question by the Crown was subject to the rights and customs of the Huron.
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 Indigenous peoples who still dominated most of Canada. An emerging loose confederacy of Indigenous nations, spearheaded by the Odawa leader Obwandiyag, also known as Pontiac, opposed British rule in what became known as Pontiac’s War (1763–66.) The confederacy captured nine British posts in Canada in the spring of 1763 and made the matter of establishing peace with Indigenous peoples even more pressing for the British.
Sir William Johnson was an active supporter of the Royal Proclamation of 1763 (precipitated by Pontiac’s War) 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 Indigenous peoples. He was also central in the signing of the part of the treaty that was ratified in Niagara in 1764.
The proclamation laid out a procedure for the future opening of portions of Indigenous territory for colonization and settlement by the Crown’s non-Indigenous subjects. Through the proclamation, the Crown claimed “dominion” and “sovereignty” over Indigenous territories and that only the Crown could make treaties with Indigenous peoples. Therefore, on the one hand, the proclamation seemingly protected Indigenous territories from encroachment by outsiders, but on the other hand, it left the possibility for just such encroachment by the Crown. The king decreed that no individual person or colony could purchase territory from Indigenous peoples; instead, the British Crown was to be the essential actor in negotiating treaties.
Affirmed by Section 35 of the Constitution Act, 1982, the Royal Proclamation forms the constitutional basis for Crown-Indigenous treaties in Canada. These principles are still being applied in the making of modern-day Indigenous treaties.
From the time of the Conquest to Confederation, British and Indigenous peoples made various alliances to secure against the Americans during the American Revolution and the War of 1812. The arrangements also provided the British with access to traditional territories for the purposes of white settlement and development. It was during this time period that the colonial government began pushing Indigenous peoples off of their homelands and onto reserves. While the earliest reserve in Canada (Sillery) dates to 1637, it was not until the mid-1800s that most reserves in Canada were created.
The Treaty of Fort Stanwix, 1768
The first Treaty of Fort Stanwix (another by the same name was signed in 1784) was the first major agreement negotiated according to the terms of the Royal Proclamation. When the dominant fur-trade companies of Pennsylvania made claims against the British government for damages incurred during the Seven Year’s War and Pontiac’s War, Indian Department officials tried to compensate them through a major land transfer. The Treaty of Fort Stanwix moved the border between Indigenous territory and the Anglo-American colonies significantly westward to the banks of the Ohio River.
The lands ceded in the treaty — most of modern-day Kentucky, Tennessee, West Virginia, Maryland and western Pennsylvania — were the ancestral homes of the Shawnee, Delaware, Cherokee, Seneca-Cayuga, Miami, Potawatomi, Mingo, Odawa and Wyandot. This led to the emergence of hardline leaders in the debate among the Indigenous peoples of the Great Lakes-Ohio Valley area about who was authorized to cede land in treaties.
Sir William Johnson, who was a land speculator, hoped that the Fort Stanwix Treaty would satisfy the entrepreneurial wants of the business community in both the Thirteen Colonies and in Britain. However, the deal only fed the land speculators’ greed. 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 Indigenous nations could make land-ceding treaties directly with private colonization companies. Just when it seemed that these powerful business interests were about to prevail, the British government introduced the Québec Act in 1774 which favoured the fur-trade interests of Montréal over the land-speculation interests of Philadelphia, and treaty agreements made with Indigenous peoples over the expansionistic aspirations of Anglo-American settlers. This act was a major factor in the outbreak of the American Revolution in 1776 (see American Revolution – Invasion of Canada.)
The American Revolution and the Haldimand Grant, 1776 to 1784
While many Indigenous peoples tried to avoid involving themselves in the American Revolution, many others believed that a British victory would be the least threatening outcome. After all, it was the proponents of western expansionism who had driven the American Revolution forward. Mohawk leader Joseph Brant led many of his people, who had been especially active allies of the British, into battle. However, in spite of Indigenous peoples’ important role in the war, the diplomats who redrew the map of North America after the revolution paid no heed to the heritage of Crown treaties with Indigenous 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 address the resulting crisis, Québec Governor Frederick Haldimand made treaties in 1784 with the Mississauga north of Lake Ontario to open land for those Six Nations people who opted to migrate rather than live under the jurisdiction of the United States and New York state (see Haldimand Proclamation.)
Established in 1974, the Office of Native Claims (ONC) defined two types of modern land claims: specific and comprehensive. Specific land claims address Indigenous grievances over the failure of the federal government to keep promises made to them in the Indian Act, historic treaties or other agreements. Comprehensive land claims deal specifically with questions about land title. A comprehensive claim can be made for any part of Canada where Aboriginal title has never been ceded. The Specific Claims Tribunal (2008) has since supplanted the ONC and is the federal body that continues to hear specific and modern land claims.
James Bay and Northern Québec Agreement, 1975
The 1975 James Bay Agreement is often considered to be Canada’s first 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 region of James Bay — led to negotiations with Indigenous peoples. Although the enormous hydroelectric project was initiated in 1971 without their sanction, the area’s Cree and Inuit peoples asserted their unceded Indigenous rights through the courts. The Cree also used the media to assert their rights (see James Bay Project.)
In the complex settlement that ensued, 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, as an adjunct to the James Bay Agreement, the Naskapi band of Schefferville concluded the Northeastern Québec Agreement with the federal and provincial governments.
The negotiation of modern-day treaties somewhat stagnated during Prime Minister Brian Mulroney’s first term (1984-88.) However, this state of affairs was to change during Mulroney's second term (1988-93.) In June 1990, Elijah Harper, an Oji-Cree MLA from Manitoba, blocked a sweeping revision to the Canadian Constitution negotiated at Meech Lake by the 11 first ministers without Indigenous representation (see Meech Lake Accord: Document.) 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.) In 1991, the government appointed a Royal Commission on Aboriginal Peoples just as a surge of new political interest was invested into modern-day treaty making. The Oka crisis and other First Nation activism helped to bring Indigenous issues to the fore.
Modern-Day Treaties in Northern Canada
This surge of political interest in treaty making was mostly evident in the territories north of the 60th parallel, where bilateral, nation-to-nation negotiations led to the making of the Inuvialuit Treaty (1984), the Gwich’in Comprehensive Land Claim Agreement (1992), the Nunavut Land Claims Agreement (1993) and the Sahtu Dene and Métis Comprehensive Land Claim Agreement (1993.)
From 1993 to 2005, the 11 First Nations of the Yukon First Nations Final Agreements also received their own modern treaties. These nations include: Champagne and Aishihik, Na-cho Nyak Dun, Teslin Tlingit Council, Vuntut Gwich’in, Little Salmon/Carmacks, Selkirk, Tr’ondëk Hwëch’in, Ta’an Kwäch’än Council, Kluane, Kwanlin Dün and Carcross/Tagish.
In 2003, the Tlicho from the central Northwest Territories celebrated the enactment of the Tlicho Land Claims and Self Government Agreement.
Following the James Bay Treaty, these agreements have enabled Indigenous communities to set up municipal and corporate structures and to allow them to participate as shareholders in the exploitation of natural resources.
Modern-Day Treaties in British Columbia
In British Columbia, there are not only two but three types of government involved in the negotiation of modern-day treaties — federal, provincial and First Nation. In 1991, treaty negotiations with some Indigenous nations in British Columbia began.
In keeping with the historic role of the Nisga’a in forcing the issue of unrecognized Aboriginal title, their treaty sets a precedent. Behind the Nisga’a are over 50 other Indigenous nations in British Columbia negotiating similar agreements in a six-stage treaty process with the British Columbia Treaty Commission. The final agreements for the Tsawwassen First Nation and the Maa-nulth First Nations (five nations in total) came into effect as of April 2009 and April 2011, respectively. The Tla’amin Final Agreement came into effect in April 2016.
In a historic decision on 26 June 2014, the Supreme Court of Canada granted the Tsilhqot’in title to 1,700 km 2 of land in British Columbia. With the ruling, the Tsilhqot’in have exclusive rights to the land and to associated benefits and profits, and must grant their consent before any economic development occurs. Significantly, the ruling clarifies the meaning of and criteria for establishing Aboriginal title: an Indigenous group must prove continual and exclusive occupation. In addition, Indigenous nations with legitimate claims — whether ongoing, settled, or merely possible — must be consulted and grant consent before economic development may proceed.
Modern-Day Treaties in Québec and the East Coast
The James Bay treaty covers much of northern and western Québec; however, there are other settlement areas in Québec and Eastern Canada. The Labrador Inuit (Nunatsiavut region) and Nunavik Inuit (northern Québec) celebrated their land claims agreements in 2005 and 2006, respectively. In the southeastern part of Hudson’s Bay lies the area covered by the Eeyou Marine Region Land Claims Agreement, signed in 2010.
The Innu of Labrador signed a modern-day treaty in 2011, after 15 years of lobbying against a company’s discovery and purchase of a huge nickel deposit at Voisey’s Bay in Labrador. Before the discovery, the Innu had asserted Aboriginal title in their lands, which they call Ntesinan. In addition, the Innu particularly resisted the establishment of a low-level jet training facility in Goose Bay. This criticism drew international attention from peace activists and environmentalists, who used their influence to publicize the effect of NATO’s war preparations on Innu hunting practices.
Conflicting Views on Modern Treaties
Some non-Indigenous 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 lobbied against the treaty system, arguing that it undermines individual equality and one law for all Canadians.
Indigenous activists have also criticized certain modern treaties. In the case of the Nisga’a treaty, for example, some contended that the Nisga’a made concessions in areas such as taxation and property rights that were to the detriment of the Nisga’a people. Indigenous people also expressed their opposition to modern treaties through an armed stand made by the Defenders of the Shuswap Nation at Ts’Peten (Gustafsen Lake) in the summer of 1995. This group questioned the legitimacy of a process that they said used the imagery of treaty making to hide old patterns of colonization including co-optation of Indigenous elites, dispossession through the extinguishment of Indigenous rights and cultural genocide through the assimilation of Indigenous peoples into the Euro-Canadian mainstream.
Another Indigenous 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 Indigenous 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 (see Gertrude Guerin.) At its most extreme, the trustee-like role ascribed to Indigenous peoples through such instruments 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 Indigenous negotiators sign documents that extinguished Indigenous rights? If the Crown was the chief beneficiary of treaties that formalized the surrender of these rights, would Crown officials not then be in a position of conflict of interest?
Manitoba Judge A.C. Hamilton addressed these issues in a 1995 report to the minister of Indian 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 in flagrant breach of the Crown’s fiduciary obligation.” Judge Hamilton proposed several options for how modern-day treaties might be worded to avoid the pitfalls of extinguishment while providing non-Indigenous interests with assurances that their land titles would be safe from challenge. Canada adopted some, but not all of, the recommendations.
There are Indigenous peoples whose representatives were not present at historic treaty negotiations, and are now seeking compensation. One 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 lies within a lucrative oil patch in Alberta, have faced tremendous resistance, both inside and outside 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 Indigenous peoples excluded from the treaty system include the Teme-Augama Anishnabai and the people of the tiny overpopulated Long Lake 58 reserve. These communities were passed over in the 1850 negotiation of the Robinson Treaties.
The Métis generally have been excluded from treaty agreements. While Métis adhesions were eventually included in some of the Numbered Treaties, the Métis still fight for title to traditional lands.
On the west coast, the Sinixt have received acknowledgment of their existence as a First Nation in Canada, as well as their traditional territories and their rights to those lands, relatively recently, in 2017.
This is not an exhaustive list of Indigenous peoples attempting to gain land claims settlements. It simply serves to show that there are communities all over Canada with various claims to traditional lands and waters.
Indigenous and treaty rights were a particularly controversial and difficult issue during the patriation of the Canadian Constitution. On 5 November 1981, nine provincial governments (excluding Québec) entered into the federal government’s patriation plan on the condition that Indigenous and treaty rights be stripped from the draft constitution. However, after widespread demonstrations and campaigning by Indigenous groups, section 35, which recognizes and reaffirms existing Indigenous treaty rights, was reinstated. Premier Edgar Peter Lougheed of Alberta was instrumental in inserting the word “existing,” expecting this would lead to a more limited judicial interpretation of section 35.
Indigenous peoples argued that Canada lacked the authority to sever the relationship between their nations 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 into by Indigenous peoples in Canada had indeed been with the Crown in respect of the United Kingdom. Through constitutional evolution, however, the responsibility to manage treaty rights had come to be vested with the Canadian government. “No parliament,” proclaimed Lord Denning, “should do anything to lessen the worth of these guarantees.”
Treaties and the Meech Lake and Charlottetown Accords
Indigenous peoples held to their conviction that 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 demise of the Meech Lake Accord.
Four Indigenous organizations, including the Assembly of First Nations, were included in the constitutional deliberations that culminated in the Charlottetown consensus report (see Charlottetown Accord and Charlottetown Accord: Document.) This report 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 from the histories, distinct identities and self-determination of Indigenous peoples whose existence predates that of Canada.
The Charlottetown document was rejected as a basis for constitutional amendment. While most Inuit voters happily sanctioned the accord, First Nations voters largely rejected it. This rejection marked a lack of confidence at the grassroots level in First Nation communities. In some parts of the country, Indigenous rejection was also an expression of unhappiness with the format of multilateral negotiations. By its very nature, this federal-provincial-Indigenous format undermined the integrity of bilateral, nation-to-nation treaty making with the Crown that, in the view of many Indigenous peoples, still defines their alliances with the Canadian state.
Québec Sovereignty and Treaty Rights
The provincial election of the Parti Québécois government (1994) and the referendum on Québec sovereignty (1995) highlighted treaty issues in a debate about partitioning the province if it were to declare independence. One of the key participants was Matthew Coon Come, Grand Chief of the Cree (of Québec.) In a Cree referendum during the Québec sovereignty referendum, 96.3 per cent of Chief Coon Come’s people voted to maintain their alliance with Canada, even if Québec declared independence. A referendum of Inuit peoples in Québec had similar results. Chief Coon Come asserted that if Canada is divisible, so is Québec.
Treaties and Canadian Citizenship
The phrase “we are all treaty people” means that everyone in Canada — settlers and Indigenous peoples alike — are in some way affected by treaties. In 2016, this phrase was given more meaning when the Trudeau government announced its plans to honour treaties in an amended citizenship oath for new Canadians. Listed as one of the 94 calls to action by the Truth and Reconciliation Commission (TRC), this proposal includes a promise to “faithfully observe the laws of Canada, including treaties with Indigenous peoples.” For many Indigenous peoples, the new oath is just the beginning of what they hope are more changes, such as revising the citizenship test to better reflect Indigenous history and ensure that citizens-to-be (or immigrants) are well-informed about Indigenous issues.
Treaties and the United Nations
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 populations.” The government of Canada attempted to derail the study, arguing that an international “focus on Treaties essentially 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 Alfonso Martinez. In 1989, he visited the Onion Lake reserve in Saskatchewan to hear testimonies from treaty peoples. He issued progress reports and his final report was published in 1999. His work influenced the UN’s Declaration on the Rights of Indigenous Peoples, which was adopted by the United Nations General Assembly 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.”
In November 2010, Canada announced its support of the declaration in principle, but did not offer a full endorsement. The government had many reservations about the way the declaration addressed traditional territories and resources thereupon, as well as the duty to consent (referring to the government’s duty to consult Indigenous peoples about any proposed developments that may affect their lands and communities.)
Five years later, Prime Minister Justin Trudeau announced plans to revoke Canada’s objector status. In May 2016, Carolyn Bennett, the Minister of Indigenous and Northern Affairs, declared that Canada had fully endorsed the declaration. Implementing the declaration will take much coordination between Indigenous peoples and the federal, provincial and territorial governments.
Treaties and NAFTA
In spite of Indigenous peoples’ efforts to gain recognition of their treaties as proof, in part, of their capacity to act as equals in international relations, the Government of Canada continues to maintain that these agreements lie within domestic law. This issue was brought to the fore in 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 to the North American Free Trade Agreement (NAFTA) included no place for Indigenous 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 echo 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.
Treaties constitute a thread of continuity woven through the earliest beginnings of the Canadian state until today. However, treaty relationships have looked different over the years. Before the Conquest, treaties helped maintain peace for the purposes of trade and war. From the outset of the Seven Years’ War to the close of the War of 1812 in 1814, Indigenous nations wielded considerable influence due to their diplomacy and skilled fighting forces as well as their knowledge of the terrain and the fact they provided Europeans access to natural resources. Consequently, various Indigenous confederacies rose to prominence on the world stage. In the years to come, however, their influence over colonial officials dwindled as Indigenous populations were reduced by disease and war, and Indigenous peoples were increasingly forced onto reserves. While many treaties were designed to offer certain government protections and assistance for “as long as the sun shines and the water flows,” many consider these broken promises. The descendants of treaty signatories are still trying to protect their territories, using the land claims process and initiating rights-based arguments in court.
Differences in the interpretation of treaties have also affected attitudes towards the Crown-Indigenous relationship over time. The scripts of the older treaties express the legalistic and imperialistic frame of mind of the British. On these documents, Indigenous leaders often marked their approval by drawing a picture of the animal totem of their clan. These designs demonstrate the different attitudes of Indigenous nations and the colonial government towards law, government, nature and society. These differences have, however imperfectly, been incorporated over the years into the institutional structures of Canada through the treaty making process.
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 Indigenous treaties, the process itself demonstrates that Canada has grown and developed according to constitutional principles wherein recognition of Indigenous 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 Indigenous treaties for new generations of Canadians becomes ever more challenging.
