Divided We Fall: Tsilhqot’in and the Historic Treaties

Aboriginal Law | Aboriginal Title | Land Claims & Treaty Land Entitlement

What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society.

Tsilhqot’in decision of the Supreme Court of Canada, 2014

The Supreme Court’s recent Tsilhqot’in decision recognized the aboriginal title of the Tsilhqot’in Nation in BC. It is a landmark decision, based on 40 years of Supreme Court precedents, an even longer history of Crown-aboriginal relations, and a much longer history of territorial use and occupation by the Tsilhqot’in people.

It provides welcome news. But it reminds us that Canada is divided – increasingly so – between the areas covered by Historic treaties and other areas.

“Historic treaties” refer to the treaties reached in the late 1700s to early 1900s. At that time, Canada and its predecessor, Great Britain, were actively pursuing the expansion of the nascent Canadian state and the accompanying non-native settlement of what is now our country. These were the numbered treaties, and others, where the written English text often included language about the “cede, release and surrender” of land by its First Nation signatories. Geographically speaking, these treaties covered most of Ontario and the prairies (and NWT – but see below).

Other areas of Canada – the Atlantic provinces, Quebec, BC, Yukon and now Nunavut – by and large either had no treaties, or had older treaties from the 1700s in which the written English text speaks only of trade, peace and friendship, not land.

The most obvious implication of the Tsilhqot’in decision is that in these “other areas”, aboriginal peoples have aboriginal title to their territories. That title can either be recognized in a modern treaty or  by a court.

Justice Morrow’s 1973 decision in Re Paulette in the NWT, and the Supreme Court’s clear recognition of the concept of aboriginal title in the  Calder decision paved the way for the  modern treaty claims process – but only in the “other areas”.  Over two dozen modern treaties have since been concluded and many more are under negotiation. Modern treaties provide a way for aboriginal nations and the broader society to have a clear-eyed conversation about their relationship in the past, today, and going forward. These modern treaties typically address self-government, land ownership and management, resource benefits, and much more.  They are not without their problems, including Canada’s insistence on cede, release and surrender language or close equivalents, and narrow views of self-government, but they are far more reflective of sharing principles than the texts of the Historic treaties.

The Historic treaty areas, however,  remain completely stuck. The provinces there maintain that off reserve, the provinces have all the land, resources, and decision-making powers on so-called Crown land. (The Supreme Court of Canada’s July 11 decision in Grassy Narrows First Nation v. Ontario  found in Treaty 3 territory that the province, not Canada, would have this jurisdiction.) First Nations in these provinces are more marginalized and have worse living conditions than elsewhere in Canada. Indeed, the socio-economic gap between Historic treaty areas and modern treaty areas is already serious, and growing wider.

Historic treaties are stuck in historic disputes. There are essentially 3 perspectives:

1.“That wasn’t the real deal”.

This is the most common First Nations’ perspective. Have you ever wondered how a people intimately connected to their land, who rely on that land for daily survival and as the foundation of their well-being, would give it up for a pittance, often within the course of a few hours? Well, maybe the answer is that, actually, they didn’t. First Nations’ oral histories tend to be very clear that treaty commissioners promised them continued land rights, governed by the principles of sharing, mutual benefit, and friendship – without any notion of surrender. When we work in communities today, we repeatedly hear that “we agreed to share the land; we did not give it away (in fact, that would be impossible under our own laws and traditions).” In fact, the notes and diaries of the Historic treaty commissioners about their own verbal exchanges support the exact same conclusion: they are replete with promises of friendship, protection, and First Nations’ continued way of life on the land, but never mention  “cede, release, surrender” or any equivalent.

The NWT is a revealing story. The Dene participated in Treaty 8 and 11 in the early 20th century, so in theory they should fall into the “Historic treaty” category. But in the 1973 Paulette case, the Dene proved – with first-hand treaty witnesses – that their true agreements were about peace, friendship and sharing, and contained no whisper of surrender. Following Paulette and Calder, the Crown agreed to negotiate modern treaties, moving NWT into the “other areas” category. Cases like Paulette provides a window into the “real deal”, revealing true agreements that are not land surrenders.

2.“It’s a bad deal.”

Provincial and federal governments tend to take the view that what was written in black ink is the deal – no matter how bad it may be for the aboriginal peoples. No matter that the Crown wrote those documents unilaterally, in its own language, with its own lawyers, usually well in advance of approaching the First Nations. No matter that the Crown often got First Nations to sign them under questionable circumstances, usually acting through partisan translators in a rush without access to legal advice, and at worst under the pressure of state-sponsored starvation. And no matter that there’s no fairness in shortchanging some aboriginal peoples over others, just because they met the Europeans first (and agreed to be friendly, to boot). The paper sticks.

But the problem is, if you accept this version of events, then the Crown manipulated First Nations into signing terrible, exploitative agreements deeply contrary to their interests and those of their future generations. That’s both ethically and legally unacceptable. As Tsilhqot’in reminds us, the Crown has a duty to act honourably with aboriginal peoples. If the Crown’s version is right, it’s unconscionable. Such agreements demand comprehensive redress.

3. “There was no deal.”

Logically speaking, this is the third option. If the Crown and First Nations had completely incompatible understandings of their purported agreements, there was no “meeting of the minds”. Without a meeting of the minds, an agreement does not legally exist. The treaty is all a big misunderstanding.

Despite the differences in their legal underpinnings, each of these perspectives all lead to the same conclusion: the written English texts of these Historic treaties aren’t worth the paper they are written on, and the Supreme Court’s decision about Treaty 3 in Grassy Narrows did not grapple with this challenge. They either fail to represent the true treaty, they are unconscionable, or they never reflected any agreement at all. Either way, the purported “cede, release and surrender” of aboriginal title lands is an illusion.

Whether the Historic treaty peoples in fact have aboriginal title as in Tsilhqot’in, or a “treaty title” based on their true agreements, or claims for redress to create new forms of title, we come back to this. There is a pressing need for genuine, mature conservations between Historic treaty peoples and the broader society about their past, current and future relationships.

Nothing less than justice and reconciliation are at stake. As a country, we’re already making progress in northern Canada, BC, Quebec, Newfoundland & Labrador, and initial steps are underway in New Brunswick, Nova Scotia and PEI. That progress needs to move into central Canada. We can’t bury our heads in the sand any longer.

In the Historic treaty areas, it is time “to negotiate in good faith to resolve claims to ancestral lands” to quote Tsilhqot’in.  We need to face the big issues that justice and the law demand be dealt with – land, resources, and self-government for aboriginal peoples who signed Historic treaties in Canada.

 

By Nancy Kleer and Judith Rae