The Supreme Court of Canada in the Robinson Treaties case also commented on treaties from the Indigenous People’s perspective. It is sometimes a little different from that of other Canadians. On behalf of the unanimous Supreme Court Justice Jamal said,
I am also guided by the fact that the Robinson Treaties were not only about securing land in exchange for a monetary annuity. As the trial judge found,
“[f]rom the Anishinaabe perspective, the central goal of the treaty was to renew their relationship with the Crown” …. For the Anishinaabe, “the Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances”
Actually, the Indigenous people that brought forward the claim on behalf of their people, said it best in their formal claim,
“What the Treaty promises is . . . an ‘ongoing relationship’ with procedural and substantive aspects. The Crown cannot fulfill its duty by paying an arbitrary sum of money without engaging its Treaty partner”
Meaningful consultation and negotiation were essential, from their perspective, to a proper treaty relationship. As a result, the Supreme Court did not specifically tell the governments of Canada and Ontario how they had to satisfy the claims of the Indigenous People of the Superior Treaty, but it told them how they had to go about it and if the Indigenous claimants are not satisfied within 6 months they can bring the matter back to the court for final determination by it. If that becomes necessary however the governments will have failed to “to effectively renew the treaty relationship and restore the honour of the Crown.” By giving the governments a short time line, it was giving the government a chance to encourage the restoration of the treaty relationship. I thought this was very wise on the part of the Supreme Court.
Justice Jamal gave one more final word to the parties:
“Although I recognize that the augmentation promise does not expressly require the parties to negotiate and agree on an annuity increase, it is undeniable that negotiation and agreement outside the courts have better potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown. After all, historic treaties represent the “establishment of a relationship of trust and mutual assistance” between Indigenous peoples and the Crown, but the details of that relationship “must be the object of permanent negotiations, in view of fleshing out the general principles governing the relations between the two peoples”
In this way, the judgement of the Supreme court allowed the parties a final chance to restore trust, a crucial ingredient of a healthy treaty relationship. We will have to wait to see if it is possible for both governments to do that.
In this case the two governments, Canada and Ontario, did the worst thing they could have done. For 150 years they refused to negotiate in good faith with the First Nations. They stuck their heads in the sand. And now we will have to pay the price.
I must admit I have my doubts that negotiations will succeed because the relationships are so bad. It’s like a husband and wife who can no longer talk to each other. The future looks grim. Lets hope I’m wrong. Canada and Indigenous people must really solve this problem that seems unsolvable.
I’ve noticed a change over the decades in the way reporting on land and other rights has changed from talk of duplicitous treaties to fulfilling the treaties in a meaningful way. Is there a consensus as to whether treaties “established a relationship of trust and respect”? By analogy with collective bargaining in labour relations, the negotiation of a contract is always time-limited but is generally viewed as a “break” in establishing an ideal contract (which means different things to opposing sides).
I would say they ought to have established a relationship of trust, but there were so many breaches by the Crown and none by the Indigenous people that I can think of (there must have been some) that has been very difficult if not impossible in many cases for there to be trust. For example, in the Robinson treaties case the crown despite repeated demands from Indigenous people did not live up to its obligations for 150 years. How could anyone trust the other side in such a case? The SCC even recognized this. As a result the SCC. said to the Crown you must reach agreement within 6 months and if not the Indigenous people can bring it back to the SCC but not vice versa if the Crown wanted to bring it back. Rather than imposing an amount that had to be paid the court told the parties that negotiations were the best way to try to restore trust in each other but it acknowledged that might be difficult in the circumstances.
I am writing a supplement to my earlier inadequate reply:
I agree that the trend of reporting has changed. I think it would be difficult to support a claim that “treaties established a relationship of trust and respect.” I think there is a fairly common view that this was part of the intent of treaties, or ought to have been. The widespread failure of governments to respect treaties has poisoned the relationship between Canada and indigenous peoples. I am not at all familiar with labour contracts or union contracts. One of the many gaps in my education. I learned almost nothing them (or treaties either for that matter) in law school. I have since become very interested in aboriginal law since leaving law school however. I am no expert on this area however, just a very interested observer. So I can’t really offer an opinion on whether there is validity to the analogy you suggest.
Hi, I finally rediscovered this post. To be clear, I do not myself argue that “treaties established a relationship of trust and respect” (You didn’t say that I did but just putting that in writing. :)) I would have no trouble believing that the Canadian government provided this as a rationale at the time. I could hardly imagine any formal writ even hinting that the treaties, properly interpreted offered a windfall to the colonialists.
A good deal of gritty and realistic politics happens in hallway conversations and then evaporates after the intent has been baked into language that the weaker party often feels obligated to sign. This is likely true of any large organization for example.
I am a bit puzzled by your reply. Do you not think treaties offered a huge benefit, though perhaps not a windfall, to the colonialists (non-indigenous people)? I find your last paragraph very interesting and very likely true.