Category Archives: Aboriginal Law

Discretion

2024 Trip to Eastern Canada, Aboriginal Law, Colonialism

 

There was one tricky issue on the appeal. The Treaties gave the Crown [the government] to exercise its discretion to determine whether or not it had earned enough profits to warrant paying the First Nations, but that did not mean it could exercise that discretion without any parameters. It has to exercise its discretion in a way that aligns with the Honour of the Crown and its constitutional role and its duty to bring about reconciliation. As Justice Jamal said, on behalf of the entire court,

“This Court has long recognized that “there is no such thing as absolute and untrammelled ‘discretion’…in a country founded on the rule of law and in a society governed by principles of legality, discretion cannot be equated with arbitrariness”. Our law requires discretion to be “exercised within a specific legal framework”, and recognizes that “[d]iscretionary acts fall within a normative hierarchy…”

 

The Supreme Court also endorsed a law text which said,  ‘a claim of unfettered discretion by government is “constitutional blasphemy. . . . Unfettered discretion cannot exist where the rule of law reigns.”

 

Therefore, even though the government could exercise its discretion on how much to pay, it can’t pay whatever it wants to pay. It must follow the rules the court set out. It must act honourably in the interests of the First Nations and all of Canada.

 

Treaty of Niagara

2024 Trip to Eastern Canada, Aboriginal Law, Colonialism, Indigenous People After Contact, Indigenous Treaties

 

There is one more document that must be considered in order to understand the significance of the Robinson Treaties. in 1764, one  year after the Royal Proclamation was proclaimed,  Sir William Johnson who represented the English crown, invited all of the First Nations in the region that would be impacted by the Treaty of Niagara to Niagara to talk him. This has been called the Council of Niagara 1764 and was attended by over 1,700 Indigenous people, including Anishinaabe leaders. At that time Johnson on behalf of the  Crown again assured the Indigenous attendees of their autonomy and stated that the Crown would maintain and protect their title to their lands as was proclaimed by King George in the Royal Proclamation.

He advised them that he was the person responsible to implement the Royal Proclamation. He sent out copies of the proclamation together with strings of wampum. These are shells commonly used in Eastern Canada and they represented the highest forms of nation-to-nation diplomacy. These strings or belts were the indigenous form of treaty “writing.” It is interesting how the parties latched on to Indigenous ceremonies in this “new world.” This was a sign of respect by British authorities to their Indigenous partners. It was understood that they would be partners.

 

The Covenant Chain belt was created through the Treaty of Niagara. It is a belt that shows 2 individuals holding hands representing friendship and alliance. Gifts and wampum belts were exchanged, including the Great Covenant Chain Wampum and the 24 Nation Wampum. The trial judge in the Ristoule case that went to the Supreme Court who momentously rule on the case this past year, described the Great Covenant Chain Wampum as an embodiment of the “merged symbols of diplomacy” between the two groups, visually represented on the belt by two figures holding hands as part of two links in a chain.”

The Treaty of Niagara is what flowed from that historic meeting in 1764.

Aimée Craft is an Indigenous lawyer (Anishinaabe-Métis), an assistant professor at the Faculty of Common Law, University of Ottawa, and an adjunct professor in Native Studies at the University of Manitoba, said this;

“The Royal Proclamation does not stand alone. The Treaty of Niagara is a sister document. It is the foundation of the nation-to-nation relationship between Canada and the First Nations of Canada. Together, the Treaty and the Proclamation provided the first understandings between the English and the Indigenous people of North America about the relationship of the British crown and the indigenous nations. Through the Proclamation, Britain asserted sovereignty over the parts of North America that it claimed, but at the same time, it also acknowledged the sovereignty of the First Nations of Canada. It recognized that lands had not been surrendered or ceded to the British crown and therefore it was necessary to make treaties with Indigenous peoples.”

 

The Royal Proclamation signed by King George said Canada should ensure that indigenous people would not be disturbed or molested in their occupation of land reserved for them. It also said the abuses that occurred in the past in the acquisition of land should not be repeated.  It was acknowledged that too often in the past fraudsters had taken advantage of Indigenous people who often could not read English script.

A fundamental principle of the Royal Proclamation is that no private person has the authority or privilege to purchase land from Indigenous people of those vast lands that had been set aside for them (unceded land). The crown has the exclusive right to purchase such land from Indigenous people or groups and only at public meetings of said nations. The indigenous people had to be “inclined to dispose” of their interest as the nation as involved in the agreement. If they were not so disposed there would no transfer of ownership. This is the foundation of treaty making to this day. Only in this way can land of a First nation be sold or ceded.

Sadly, later there were some lapses in recognizing this legal prerogative, just as there were lapses in failing to honour the treaties, particularly on the part of the non-indigenous people. Perhaps there is no better example of this than the Robinson Treaties, that I will get to in the next post.

The Treaty of Niagara is called a treaty because 200 chiefs showed up from as far away as the Rocky Mountains. They came to Niagara to “make treaty.” 24 nations were represented. Of course, the concept of nations has morphed over time.

These 2 documents, together with the Covenant Chain, mandate non-interference in indigenous governance. According to Professor John Borrows, of the University of British Columbia, this is the foundation for indigenous sovereignty. Those treaties that were negotiated are still the legal basis for the legitimacy of settler presence in North America. They are the basis of the right of all of us non-indigenous people who live in North America to do so with security of tenure.