Yesterday, I argued that it is difficult to walk away from treaties because they are constitutional documents. The next question is should we want to walk away from them?

To answer this question intelligibly we must understand what treaties are and how they came about.

First, is it true to say that Indigenous people who will be paid treaty payments are getting unequal or special treatment?  After all the First Nations are being by the Crown for payments that are due by contract. The Crown promised to pay these annuities  in return for obtaining the right for itself and its assignees to occupy and use the land of the First Nations. Paying what is due and owing  is not a gift. The Crown got the land and promised to pay for it. Some people sell things or rights to the Crown and are paid for them. Others don’t receive that money because they did not enter into an agreement to sell something, such as land. There is no unequal or special treatment here.

Secondly, what is the purpose of treaties? It is more than payment of money for land. As the Supreme Court of Canada explained in an earlier case, Little Salmon,:

“Historically, treaties were the means by which the Crown sought to reconcile the Aboriginal inhabitants of what is now Canada to the assertion of European sovereignty over the territories traditionally occupied by First Nations. The objective was not only to build alliances with First Nations but to keep the peace and to open up the major part of those territories to colonization and settlement.”

In other words treaties are created to facilitate nations living together peacefully. As a result of the Robinson treaties Canada obtained tremendous benefits for centuries. Should it now be allowed to renege on its promises and pretend those promises were never made? Or should it rather renegotiate those treaties.  Indigenous people mostly thought that this is what would occur after treaties were made. They would last for a long time, i.e., they would last” as long as the sun shines and the rivers flow,” but they would be periodically renewed and renegotiated. Indigenous people expected that. Sadly, that has not happened as often as it should it.

Personally, I think the Crown should renew and renegotiate those treaties. Just like Canada should renew its Charter of Rights and Freedoms and the United States should renew its Constitution. This won’t happen overnight and abandoning them is not the best way to do this.

Legal scholar Professor Janna Promislow explained why this makes the interpretation of treaties so important:

“Serving the ends of justice in the treaty interpretation context, however, is more complex than the interpretation of contracts, due to the historical nature of the agreements and the constitutional character of the moments of agreement — and because the foundational values behind protecting historic treaty rights are arguably less understood and more contentious than the values behind protecting freedom of contract.”

The Supreme Court of Canada in the Robinson Treaty case said this about the rights obtained by the First Nations who entered into the treaty with Canada and Ontario,

“In this case, for example, this Court has to interpret the scope and content of constitutionally protected rights and obligations that embody the very conditions on which pre-existing Indigenous peoples agreed to share their most precious gift — the land itself — with newcomers.”

Treaties are important documents. Societies are based on them. They are not entered into for the short term, but the long term because treaties give stability to the nations involved in them. We must be very careful before we abandon them. They are important for all of the nations involved. That is why Justice Jamal said in the Robinson Treaties case on behalf of all 9 judges:

“treaty interpretation involves the application of constitutional principles such as the honour of the Crown, with lasting implications for the nation-to-nation relationship between Indigenous peoples and the Crown.”

As J. Y. Henderson, Treaty Rights in the Constitution of Canada, which was also adopted by the Supreme Court of Canada in the Robinson Treaties case:

“Treaty texts are “evidence of the transgenerational rights and obligations of the treaties and their promises”, and are “meant to impose obligations on the British sovereign and the delegated colonial governments and subjects into the distant future”

S. Grammond in the legal text The Oxford Handbook of the Canadian Constitution pointed out that treaties are not just binding on those who signed them,

“they are binding upon all Canadians who, because of the Crown’s assertion of sovereignty, are also effectively implicated in these founding agreements. A treaty is a compact “not only among the provinces or ‘founding peoples’, but also ‘between the non-Aboriginal population and Aboriginal peoples’”

That does not mean the treaties should be written in stone. They must be renewed and renegotiated frequently. That does not happen overnight. It takes time, effort, goodwill, and yes, even honour!

And that is what Canadians should do. The Indigenous people and the government of Canada and Ontario non-Indigenous people should get together from time to time to renew and amend those treaties to make them better and more effective. Like my cousin said, this is 2024. Times change. We can do better. But reneging is not the answer.