Category Archives: Indigenous Treaties

The Honour of the Crown

 

I continued on my inferior trip to Lake Superior as I have called it.  I love northwest Ontario particularly with its magnificent little rocky islands. To me they express the wonder of this beautiful country. I saw a few fine ones on this little jaunt and could not stop myself from stopping to photograph them. Some people say this country is just rocks and trees. They find them boring. Friends have told me this. I think only boring people could be bored by the stunning beauty of the country.

 

Some people think the government should renege on contracts (treaties) it has made with First Nations even though it continues to enjoy the benefits of those treaties. Is this a viable option?

There is a critically important concept the courts have enunciated in explaining the constitutional relationship between the federal government and indigenous peoples. That is the notion of the honour of the Crown. The crown is expected to be honourable. The crown must be honourable.

The honour of the Crown must be the basis of the relationship between the Crown (the government now) and the First Nations? Would failure to honour our obligations to first nations people not amount to the erosion of the rule of law in this country? Is that really what we want?

People often ask me why does the government give so much money to First Nations? Well, in large part, because they entered into contracts with First Nations by way of Treaties, that obligate them to do that! It is not free money Canada is giving away. It is money it owes the First Nations for sharing the land with them. Don’t we think we should pay that? Should we renege on the bargain? Would that be the honourable thing to do? Would that not require us to give our right to share the land back to the indigenous peoples?

Although each treaty is different, basically those treaties legally require the government of Canada, in return for getting to use the indigenous land, together with the first nations, to provide those first nations with schooling, housing, health care, and education. In simplified terms that is what Canada as a sovereign nation agreed to. It is bound by those treaties. The First nations are also bound by those treaties. They are considered sacred agreements by First Nations peoples.

 

f Canada walked away from its legal obligations would it not, as Professor Bohaker asked, “invalidate our legal system?” Do we want to do that? I know I don’t want to give up ownership of my house. What about my lease for our cottage on land owned by the Buffalo Point First Nation pursuant to Treaty 3? I don’t want to give that up either. I had to rush this short jaunt because my family was gathering on Thanksgiving Weekend at Buffalo Point to sand and stain our deck. I don’t yet want to give that cottage away, though I could do without the work.

In the film Colonization Road, indigenous lawyer and activist Pam Palmater said, said this about the effect of treaties made between Canada and First Nations:

 

“Even after the Royal Proclamation why were so many treaties signed? Because they had to have our consent. There was no choice by law or international law. And that’s significant. Treaties don’t take away from any of that, it actually just bolsters that. And now that the treaties are constitutionally protected it means they are. Recognition of our sovereignty and nationhood is the basis of the legal legitimacy of this country. You take away that and Canada has no legitimacy whatsoever. They need to recognize our sovereignty and nationhood in order to even exist as a state. And every other country in the world is well aware of that. And all Canada has to do is make one stupid move and look how quickly Russia or the United States comes in to claim our territory.”

 

No. I think we need to maintain our treaties. They are part of the social and legal framework of this country. We are all treaty people.

 

 

Treaty-making

 

Some people think Canada’s boreal forest is boring. Nothing but rocks and trees some of them say.  I think only boring people find this country boring. In Particular I love the small islands on tiny outcroppings.  I think that is the essential boreal forest. This is the country I love.

I wasn’t really thinking about treaties and indigenous settler relations all the time as I drove though eastern Manitoba and North-west Ontario. But I was always at the back of my mind.

The process of treaty making began shortly after 1867 with the negotiation of what came to be called numbered treaties. The first treaty successfully negotiated was right in the area I travelled through on my jaunt. This was Treaty One Land. It is beautiful land. It is valuable land. It should be cherished. I also drove through a substantial portion of Treaty 3 land where I happen to have a cottage on land the  Buffalo Point First Nation has developed and offered to people like me with a long-term lease. Thanks to the Royal Proclamation of 1763 declared by the British King George  no one could purchase land from First Nations, but one could acquire a leasehold interest like we did.

 

Treaty negotiations were a means for Canada and the First Nations to work out trade relations between them in a peaceful manner. First Nations though did not see what they had done as “ceding” land to the settlers. They saw it as a means of agreeing to share the land and thought each party would learn from the other. Neither would dominate. They would be partners on the land.

The Royal Proclamation was issued by King George III after concluding the 7 Years War with France.  As a result, he wanted to establish rules for how the land England had acquired would be governed.

As Pam Palmater, a brilliant Canadian indigenous lawyer has  said,

“All of our rights are inherent. That means they were here before anyone else came. And we had those rights because we were nations. And we had our own laws and our own territories. These things all belonged to us before anyone else came here. All the Royal Proclamation did was recognize that. If you read the Proclamation they say why they had to recognize those rights. It was the only way their colony could be secure, or have any justice, is if they recognized and protected those rights because we weren’t giving them up.”

 

Some people think Canada should just walk away from its obligations under those treaties. But those are contracts made between sovereign nations.  How can the government which is presumably law-abiding walk away from its own legal obligations? How can we even have the rule of law in this country if we did that? Would people who live here respect the law if the government didn’t? Those obligations and those rights Canada received as part of the bargains with First Nations were to exist “as long as the sun shines and the rivers flow.” Canada still has those obligations to this day pursuant to those treaties.  Many people think Canada is always “giving” money to First Nations people but to pay money Canada has promised to pay in return for substantial benefits which Canada continues to enjoy is not a gift.  It is the fulfilment of an obligation.

Does Canada want to give the right to share the land back?  I doubt that too many  Canadian would be in favour of that.

I know i am very happy the first nations of this wonderful country agreed to share it with Europeans.

 

The Doctrine of Discovery: Who owns the land?

 

As I said earlier. I stopped at Lyons Lake right on the Ontario and Manitoba border to photograph the lake, the trees, and the autumn.  This is a photograph of a mountain maple. It is a lovely little spot.  The mountain maples of Manitoba are not as spectacular as the red and sugar maples of Ontario, but I like them. It is a more plain Jane maple, so I gussied up this photograph a bit with a double exposure of the same image in the computer. With some adjustments to each photo I like the effects you can get. Reality in art at least, in the eye of the beholder.

In the documentary film  Colonization Road I saw about this area, Professor Jeff Denis explained the Doctrine of Discovery this way in the documentary Colonization Road:

in the 15th century papal decrees of the Roman Catholic Church decreed that the first European nations to discover new lands, uninhabited by civilized people, by which they meant Christian people, or people who were not using the lands in an efficient manner as determined by Europeans, that the European nations who discovered those lands would have first dibs and sovereign ownership.

 

Really this idea was not that dissimilar from Mennonites and other settlers of the land in Canada, who believed indigenous people were not using the land so they could just take it.  Plain and simple. To them the notion of land in the natural state, without subjecting it to cultivation as in the case of grasslands, or draining wetlands, was an anathema. It was their duty to change the land and make it useful. It is part of the European attitude that nature is there for humans to dominate.  It has Biblical origins and has had powerful effects on the landscape of North America as a result. That doctrine has led to a lot of ecological harm. The indigenous people of Canada had a very different attitude to nature.  I intend to blog about it.

Eventually that doctrine of discovery was disavowed to some extent by the Catholic Church, but that did not diminish its profound influence on European colonialism. It has been cited in numerous court cases in North America. Even though it made no sense.

Here is what the doctrine provided with clear references to the fundamentals of Biblical doctrine in Psalm 72:

He shall have dominion also from sea to sea, and from the river unto the ends of the earth. They that dwell in the wilderness shall bow before him and his enemies shall lick the dust… Yea, all kings shall fall down before him: all nations shall serve him.”

 

In the documentary,  Professor of History Heidi Bohaker said that this doctrine was “the source of full legal title for Canada after Confederation in 1867, the Dominion of Canada. We may have forgotten in the secular age just how predominantly Christian, overwhelmingly Christian, Canada was.”And some parts of that Christianity Canada inherited was downright ugly. There really is no other way to describe it.

For 4 days on this jaunt, from Manitoba to North-west Ontario,  I drove through and photographed this land I love—Canada. It struck me that this doctrine was a pretty wobbly foundation for claiming dominion over the country over the objections of people who inhabited the land before the first Europeans arrived. Later King George III in England claimed a large portion of this land for the English crown in 1763 through a Royal Proclamation, (now called “The Royal Proclamation) but admitted indirectly that the rest of this land, basically all the land west of the Mississippi and outside of land already occupied by Europeans in 1763, belonged to indigenous people. He also said no Europeans could acquire title without acquiring it by way of agreement between the first nations involved and the English crown.  All people could then only acquire land from the Crown and were forbidden to buy land directly from indigenous people.

 

It is also a fundamental principle of English law, inherited by the country of Canada when it became an independent country in 1967, that no one could convey better title to land than he or she had. That has been a fundamental principle of Common law for centuries. So what really is the basis for Canada claiming dominion over this wonderful land? I submit the basis is shaky, except to the extent that title was obtained from the people who owned it by voluntary agreement with them. This is thorny stuff.

Yet as Professor Denis said, “That is really at the root of the Canadian legal system, the American legal system, the Australian legal system, any of those former British colonies.” I taught real estate transactions for 10 years at the Law School, and always felt the legal basis of our title at least when not based on treaties was shaky. Surely just taking it was not enough?

The fact is that Canada realized all along that this root of title in Canada on which it was relying was dubious. It was not a sound basis of developing Canada.  Canada needed a firmer legal foundation for its society. Canadian government officials saw how the Americans were struggling with this problem too and basically how they decided to base their claims on power. That is how Americans have traditionally operated. Canadians saw how that led to Indian wars in the United States. They saw how at one time that country was spending 25% of its annual revenue on these Indian wars. Canada thought it could not afford to spend so much as its wealthier neighbour to the south could spend. So, Canada sought a better way. They decided to negotiate treaties with indigenous people as a sounder and firmer foundation for title to the land. Frankly, this made a lot of sense, but there were problems with this approach as well.

The land I drove through on this trip was subject to Treaty No. 1 and Treaty No. 3 the first and third treaties negotiated by the new government of Canada.

Deja vu All over again: Whites and Indigenous Fighting over Lobster

 

We are experiencing another hey-rube over treaty rights and the rule of law in Canada. This time the issue is the treaty right of indigenous people to fish. The  protesters this time are white. Funny how the rule of law means something different when the protesters are white. Whenever first nations such as the Wet’suwet’en blockade access to their land, or their supporters do that same across Canada, many Canadians complain bitterly that they don’t respect the rule of law.

This is what Manitoba Premier Brian Pallister said in February of this year about the “illegal blockades” across the country that supported the Wet’suwet’en hereditary chiefs, “We respect the rights of protesters…. But laws need to be applied.” Alberta’s premier Jason Kenney was even  harsher.

What about non-natives? I have not heard either Premier complaining about the non-native fishers vandalizing the Mi’kmaw fishers’ traps in the Maritimes.

The Mi’kmaq on the east coast of Canada are again embroiled over a dispute fishing rights and treaty rights with white fishermen. This brings memories of what happened 21 years ago in Burnt Cove.

I know when I first heard about Mi’kmaw fishers fishing out of season 2 decades ago I was appalled. How could they do that? Aren’t first nation fishers concerned about maintaining the fish and lobster stock on which they rely? Later I realized things are not that simple. They seldom are.

In 1999, the Supreme Court in the Marshall case upheld the Mi’kmaw right to hunt, gather and fish in pursuit of a “moderate livelihood” as a result of those treaties. The court did not define what they meant, leaving it to the parties to settle by negotiation. They have never managed to do that. The Harper Conservatives was not interested in negotiations. The Trudeau liberal government has agreed to negotiate but as always it is moving slowly.

Recently in 2020, a number of non-native protesters removed about 350 lobster traps off the coast of southern Nova Scotia. They took matters into their own hands again by attacking the native fishers. The non-natives claimed the actions of the natives were endangering lobster stocks. As a result, they took the law into their own hands and cut lines to native lobster traps and vandalized their traps. That is certainly not lawful.

Niigaan Sinclair described the dispute this way in a Winnipeg Free Press article:

“The fishers are angry that the Mi’kmaw have a right to fish “out of season” due to the 1760-61 treaty they share with the Crown — a right recognized 21 years ago by the Supreme Court of Canada.

At issue are approximately 350 lobster traps — which Mi’kmaw from nearby Sipekne’katik First Nation say gives them a barely liveable income. More traps would be set but Canada has used “conservation” as an argument to limit Mi’kmaw rights and impose a quota.

It’s a sham argument. Commercial Nova Scotia fishermen are allowed more than 325,000 traps during fishing season — and most companies break the law and overfish.”

 

Canadians claim the rule of law is sacred.  It should be. As Sinclair said, the rule of law

“The “rule of law” is universally loved by Canadians, politicians in particular. It’s evoked every time there is an Indigenous “protest,” march or action that expresses Indigenous and treaty rights and disrupts the comfort of Canadians.”

It seems the only ones who respect the law are the indigenous fishers. The Supreme Court of Canada, the highest authority in Canada when it comes to the law, declared the Mi’kmaw have the right to obtain a moderate living from fishing. The non-natives and their supporters across the country refuse to follow that law. The non-natives are the ones who are lawless, not the poor Mi’kmaw fishers.

Premiers Pallister and Kenney, if they want to be credible, should speak up for them too.

 

Mi’kmaw, Treaties, and the Rule of Law

 

The Mi’kmaq indigenous people on the east coast of Canada were among the first to make a treaty with Canada, and among the last to go to the Supreme Court and yet, as I write in 2020 their treaty rights are still not as clear as they should be and there is another dispute in the Maritimes.

 

The first Mi’kmaq treaty (though some say this was more of a Maliseet treaty, their cousins) was agreed upon in 1713. That treaty was called the Treaty of Portsmouth and was made in New Hampshire. It was followed by a second treaty in 1752 basically reaffirming what had been agreed upon. At that time of course, there was neither a country of Canada nor a country of the United States. It was a treaty between some of the east coast indigenous people and Great Britain. It was referred to as a treaty of “peace and friendship.” It permitted the indigenous people (as if they needed permission) the “free liberty for Hunting, Fishing, Fowling, and all other their Lawful Liberties and Privileges.” But what did that mean? Did provincial fishing laws apply to them?

 

In early cases that treaty was held to require certain actions on the part of the Mi’kmaq, such as obeying provincial  laws, but there was no mention of the obligations of the British. Those were conveniently forgotten. Funny how that happens. In 1984 the “other side” of the agreement was “discovered” in the public archives. Then it became clear that the British (now Canada) had to respect the right of the Mi’kmaq to hunt and fish. Before then the Canadian courts held that they did not guarantee aboriginal rights at all.

This matter was heard by the Supreme Court in 1985 in the case of R. v. Simon, where the court held that the law recognized that the treaty took priority over provincial hunting laws. This is what the court said,

“In my opinion both the Governor and the Micmac (as their name was spelled at that time) entered into the Treaty with the intention of creating mutually binding obligations that would be solemnly respected. The Treaty was an exchange of solemn promises between the Micmac and king’s representatives entered into to achieve and guarantee peace. It is an enforceable obligation between the Indians and the white man and, as such, falls within the meaning of the word “treaty” in s. 88 of the Indian Act. (emphasis added)”

 

But as so often happened the “white man” forgot about this again. In 1988 14 Mi’kmaq were arrested by a Nova Scotia Lands and Forests officer charging them with hunting illegally contrary to provincial legislation.

The charges against the Mi’kmaq were dismissed after the Supreme Court held that the Mi’kmaq did have the aboriginal right to hunt and fish for food and were exempt from provincial regulations when they were doing that. That was a right given to the Mi’kmaq by a Treaty freely negotiated with the British Crown in the 18th century and was still binding law in Canada. That is how Treaties work. They were not gifts granted to them by the crown, they were negotiated agreements  that resulted in a treaty that had the force of law. Ordinary provincial laws could not just override those treaty rights.

Again, non-native fishers were not done trying to overcome these rights. In 1996 in a case that made international news when white fishermen destroyed some of the boats of the Mi’kmaq fishers. Donald Marshall, Jr. who was also the subject of another famous case in which he had been wrongfully convicted and imprisoned for 11 years, was now convicted of catching eels out of season. This case also went all the way to the Supreme Court of Canada where the court declared that the treaty right “…is not a right to trade generally for economic gain, but rather a right to trade for necessities.” The court also determined that catch limits could be imposed on the Mi’kmaq by the province provided they allowed for a moderate livelihood for individual Mi’kmaq families. The treaty rights did not give absolute right to disobey provincial laws.

When this decision was made the lobster season was starting and the Mi’kmaq began to set up lobster traps. Many non-native lobster fishers objected vehemently as they felt this would threaten their livelihoods. At first the white protesters relied mainly on harsh words but then moved up to destructive actions. They destroyed more than 3,500 Mi’kmaq lobster traps and processing plants that were believed to be processing Mi’kmaq caught lobsters were vandalized. 3 Mi’kmaq were injured and a Mi’kmaq arbour used for sacred ceremonies was burned. These non-native fishers were not too keen on the rule of law. The rule of law was for natives, not them. Some of the Mi’kmaq also retaliated by burning some trucks of the non-native protesters as well as an Acadian flag. Neither side was perfect.

33 of the 35 Mi’kmaq communities agreed to a 30-day moratorium to allow negotiations to proceed but 2 did not. One of those was at Burnt Cove in New Brunswick. At that site there was a major confrontation and was watched by a large contingent of international press. Canada was in the news. I remember hearing about that case and wondering why indigenous fishers would be damaging their own fishery. I was ignorant in other words.

Later I learned that the reaction of non-native fishers, besides ignoring the law, was out of all proportion to the numbers of lobsters caught by the Mi’kmaq. At the time in the Maritimes about 2 million lobster traps were set. After the Supreme court decision the Mi’kmaq added about 12,000 traps. Burnt Cove, with a population of between 1,200 and 1,300 people was allowed 600 traps. The second Mi’kmaq community Shubenacadie Nova Scotia with a slightly larger population was permitted to have 800 traps. The non-native fishers however treated this as a flagrant attempt to decimate the lobster fishery on the east coast. As John L. Steckley and Bryan Cummings reported, “Generally, commercial lobster fishermen are permitted 300 traps each.”

The non-natives broke various laws to support their crybaby protest. The Mi’kmaq complied with the laws. Their Treaty rights by law gave them the right to fish for a moderate living. There can be no doubt that their actions were moderate. Hardly destructive of the fishery.

Of course the issue was never finally resolved. The federal government was given the right to regulate the fishery by the Supreme Court. As usual, as soon as the press left, and people stopped reading about the issue, successive federal government chose to do nothing more to avoid problems in the future, leaving the problems to reoccur again, as it did recently in 2020.