Are Treaties Still Relevant?

As lawyers, we at OKT are involved in many aspects of treaties, from negotiating modern treaties to ensuring the rights in existing treaties are upheld.  Treaties are so much a part of our day-to-day work that we have no question as to their relevance.  We want to be clear that we do not in any way speak for, nor would we ever want to be interpreted as speaking for the grassroots movement that is “Idle No More”.  However it has become clear from our observations of the responses to the “Idle No More” movement, that there are many misconceptions about the relevance of treaties today.  We think that we might be able to play a role in clarifying some of the confusion (from our perspective) that we have seen.  This blog post will offer a few thoughts from the perspective of lawyers at this firm on why the treaty relationships between the Crown and First Nations are of vital importance.

• The map of Canada is a map of treaties.  A treaty relationship already applies to most land in Canada, and in other areas (without historic treaties) new treaties are being negotiated.   Different treaties apply to different parts of the country.  The Crown negotiated each treaty with the Indigenous communities that live on a particular part of the land.  Without treaties, non-Indigenous Canadians would be illegal occupants of the land we now share.
• Various treaties were negotiated over the past 250 years and others are still being negotiated.  The communities that are parties to these treaties still exist today.
• Historic treaties were largely negotiated orally and written down by the Crown from the Crown’s perspective.  Some were written down by the Crown in advance before oral negotiations.
• Many (if not most or all) Aboriginal signatories to the treaties understood the treaty agreements as being the foundation of a relationship with the Crown and that this relationship would be based on co-existence and sharing the land and its resources.
• Of course, the Crown’s understanding of those treaties is what has become the dominant view. From the Crown’s perspective, most historic treaties stand for the complete surrender of land with only a small reserve retained, and (in most cases) limited rights to hunt, fish, and trap in the surrendered territories.
• One way of understanding what it means when someone says they want to “renew the treaty relationship” or that they want the government to “fulfill the treaties” is to think about how First Nations understood the historic treaties at the time they were signed.  For many decades, First Nations who signed historic treaties have called for the Crown to re-establish the relationship of nation-to-nation co-existence and sharing the land and resources.
• For historic treaties, looking at the written treaty document alone – written in English by the Crown, from its own perspective – is often unhelpful because the written text may not have captured the true oral agreement.  When interpreting and implementing a contract, the perspectives of both parties need to be taken into account.  Treaties are no different in this respect.
• Treaties are not a handshake or a handout.  They are binding, reciprocal commitments.  Neither party can unilaterally withdraw from the treaty or change its terms.
• Treaty rights are recognized and affirmed by section 35 of Canada’s constitution.
• Treaties continue to be signed today.  There are many examples of recent treaties, such as the Nunavut Comprehensive Land Claims Agreement (1993).

The way we see it, we are all “treaty peoples”.  All Canadians are beneficiaries of the treaties, whether on the Crown (settler) side, the Indigenous side, or both.  Treaty relationships are about getting along together – Canada will be stronger when we have stronger treaty relationships, especially ones that are clear for all parties, and that are honoured with respect.

More detailed information on treaty rights can be found in chapter two of the Aboriginal Law Handbook.

By Andrea Bradley, Senwung Luk, Michael McClurg and Judith Rae.