Recently one of my very intelligent cousins, and as well a good friend told me more or less the same thing. My cousin said,  “This is 2024 so all people should be treated equally as Canadians. The treaty and reservation system should no longer be valid.”  My friend said no system of politics will work when one side gets special treatment or has special rights.” I agree with both of them. All people should be treated equally and none should have special status, but this does not end the matter. Other principles are at stake here too. For example, countries should their keep their promises. And countries should act honourably. Sometimes important values or principles collide and we have to deal with that.

The American Constitution is pretty old and far from perfect. Should it be abandoned too? Under that constitution slavery was acceptable and women could not vote nor Indians nor black people. That’s pretty bad. Yet, we have to be careful when we throw out constitutions because a lot will be thrown out with it. A lot is tied to that Constitution. We must be careful not to throw out the baby with the bath water.

I agree that all people should be treated equally as Canadians. Just as all people should be treated equally as Americans.  And no people should have special status as a result of their birth. But we all know that doesn’t always happen that way.  We want to get there. But we are not there yet. Discrimination and racism are real so what should we do about it?

The American Constitution tolerated for centuries a system whereby slavery was permitted, indigenous people and black people could not vote, women could not vote and white people were allowed to jerry-rig the system to effectively make their votes count more than their non-white fellow Americans. Over time, improvements were made, but the system is still not perfect.

We must also remember that remarkable change can happen.  A good example is France and Germany.  I remember on a trip in Africa when I had an interesting talk with one of our German guides. With tears in his eyes, he talked about how the German and French nations had fought and quarrelled and gone to war over centuries, and since the EU was established, they had become best of friends.  During all that time it seemed impossible. During World War II Japan and the United States engaged in a savage war. After the war they also became good, if not best friends. I hope this is what happens with the Indigenous and non-Indigenous people of Canada.

Canadians must remember that treaty rights are constitutional rights.  They are entrenched, which means it is not easy to change them. They can be changed but it difficult. This what Justice Jamal said on behalf of a unanimous Supreme Court in the 2024 the Robinson Treaties case:

“As already noted, historic Crown-Indigenous treaties are sui generis agreements protected under s. 35(1) of the Constitution Act, 1982. The constitutional nature of treaty rights demands that appellate courts be given wide latitude to correct errors in their interpretation. Historic treaties “establish or reaffirm a fundamental and enduring relationship between the Crown and an [A]boriginal people”… They are “an exchange of solemn promises between the Crown and the various Indian nations”… Since 1982, s. 35(1) of the Constitution Act, 1982 has recognized and affirmed that existing treaty rights have constitutional status and attract related constitutional protections.”

It was on the basis of those treaties that Canada gained the right to occupy and develop the land around Lake Superior and Lake Huron country. The Robinson Treaties were just one example of that.  As the Supreme Court said, as  a result of those treaties,

” since the Robinson Treaties were concluded in 1850, the Crown has derived enormous economic benefit from the ceded territories through mining and other activities. Meanwhile, as the Court of Appeal noted, the Anishinaabe treaty partners have experienced many deprivations in their communities, such as “substandard housing and boil water advisories” …One treaty partner has thrived, while the other has often experienced immense hardship.’

Can the party who got all the benefits now renege and say, sorry we did not pay what we promised to pay and its your tough luck?  Would it be right for Canada and Ontario in the case of the Robinson treaties to renege on their promise to pay after reaping all the benefits? In law if one party wants to rescind an agreement it must first return what it obtained in return for that agreement. Isn’t that fair?  Canada and Ontario have received a lot. Do they really want to give back what they got? Do they want to give back the land in the same condition or better as when it was first shared? I would think not.

So, whether Canadians like those treaties or not, we are stuck with them until the treaties are renegotiated or the Constitution of Canada amended. We can’t just walk away from them.

So far I have pointed out that Canada and Ontario can’t easily get out of their treaty obligations, but the more important question is should they try to get out of them? That is for my next post.