Treaties with Indigenous Peoples in Canada
Indigenous treaties in Canada are constitutionally recognized agreements between the Crown and Indigenous peoples. Most of these agreements describe exchanges where Indigenous nations agree to share some of their interests in their ancestral lands in return for various payments and promises. On a deeper level, treaties are sometimes understood, particularly by Indigenous people, as sacred covenants between nations that establish a relationship between those for whom Canada is an ancient homeland and those whose family roots lie in other countries. Treaties therefore form the constitutional and moral basis of alliance between Indigenous peoples and Canada.
Introduction: Treaties Have Different Meanings for Different People
For Indigenous peoples, the sacred and binding character of treaties is not found primarily in the documents’ legalistic language. Instead, the true force of treaties is rooted in what was actually said, often in Indigenous languages, at the time of the negotiations. In addition, treaty deliberations were frequently accompanied by ceremonial conventions such as the smoking of sacred pipes (calumet) or an exchange of symbolically significant presents (e.g., wampum belts.) Accordingly, many Indigenous peoples look to their elders who are schooled in oral histories as the highest authorities on the spirit and intent of the treaties.
For the Crown, the principles for treaty making with Indigenous peoples were articulated by King George III in the Royal Proclamation of 1763, which established the constitutional foundations of Canada after the government of France withdrew its claims to North America. The constitutional character of treaties between Indigenous peoples and the Crown was renewed in the Constitution Act, 1982, which describes itself as “the supreme law of Canada.” Section 35 of that document both recognizes and affirms “existing Indigenous and treaty rights” (see Rights of Indigenous Peoples.)
Court rulings since then have continued to shape treaty relations between the federal government and Indigenous peoples. For example, in the Sioui case (1990), the Supreme Court of Canada determined that “treaties and statutes relating to Indians should be liberally construed and uncertainties resolved in favour of the Indians.” In that case, the court introduced a principle adopted from a ruling in the United States in 1899 that treaties “must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.”
In spite of the constitutional character of treaties, the non-Indigenous peoples who made and implemented them tended to see them as self-serving deals rather than sacred pacts between independent nations. Historically, non-Indigenous treaty negotiators believed treaties were inexpensive and convenient ways to strip Aboriginal title (i.e., ownership) from most of the lands in Canada so that resources could be used by settlers (see Indigenous Territory.) Even in modern times, the federal and provincial governments tend to interpret treaties in legalistic terms, contending that Indigenous peoples “ceded, surrendered, and yielded” their ancestral rights and titles through treaties. In other words, treaties can be seen as real estate deals by which the Crown purchased Indigenous lands and provided them with reserves and one-time or continual payments in return (see Treaty Day.)
This narrow view of treaties has produced a huge divide between the Canadian government’s perspective and that of Indigenous peoples. On the one hand is the government’s view of treaties as legal instruments that surrendered Indigenous rights. On the other is the Indigenous view of treaties as instruments of relationships between autonomous peoples who agree to share the lands and resources of Canada. Seen from the Indigenous perspective, treaties do not surrender rights; rather, they confirm Indigenous rights. Treaties recognize that Indigenous peoples have the capacity to self-govern. Bridging the gap between these two views of treaties poses a huge challenge to people and lawmakers in Canada.
The complex history of treaty making in Canada can be explored by examining four significant eras: early treaties made before the Conquest, those signed between 1763 and Confederation, treaties made between 1867 and the first modern treaty in 1975, and those negotiated from 1975 to the present. A close look at treaties in the context of constitutional and international law also reveals much about the place of treaties in Canada’s domestic and international affairs.
Treaties with the French and British, 1676 to 1763
Treaties in Canada date back to the time when Europeans first arrived to North America. Europeans sought to make alliances with Indigenous peoples as a way of maintaining the peace, providing access to natural resources and gaining alliances in trade and colonial wars. This first era of treaty making starts roughly from the time of the Covenant Chain in the 16th century and extends until the Royal Proclamation in 1763.
The Covenant Chain
The conventions and protocols of treaty making in Canada can be traced to their origins in the Covenant Chain. This refers to an elaborate diplomatic relationship started between the Dutch and Indigenous peoples in the earlier part of the 17th century. Known later as the “Covenant Chain” by the English, several Anglo-American colonies and various Indigenous nations in northeastern North America engaged in this partnership after 1676. At the council grounds near Albany, officials from the colony of New York regularly negotiated with representatives of the Haudenosaunee (Iroquois), otherwise known as the Longhouse League or the Five Nations, and later, Six Nations Confederacy. By developing treaty relationships to maintain peace and for mutual economic and defence benefits, Crown officials set their eyes on more and more Indigenous land.
Treaties and Wampum
Crown officials and their Indigenous allies spoke of renewing their relationships as “polishing the links of the Covenant Chain.” It would be almost unthinkable for those Indigenous and non-Indigenous diplomats schooled in the Covenant Chain tradition to make treaties without signifying their major features on wampum belts composed of shell beads woven into appropriate symbolic representations. To accept a wampum belt in formal council was to agree to adhere to the principles embodied in its woven design. The wampum thereafter served to help perpetuate the memory of the treaty. The use of wampum as an instrument of treaty relationships spread widely throughout eastern North America in the 17th, 18th and early 19th centuries.
Peace and Friendship Treaties, 1725 to 1752
There is another tradition of treaty relations which has also been described as the Covenant Chain. This tradition links the British Crown to Mi’kmaq, Passamaquoddy and Welastekwewiyik (Maliseet) peoples, whose ancestral lands cover most of the Maritimes, as well as parts of the Gaspé Peninsula. Unlike treaties made after the Royal Proclamation, the Maritime treaties do not focus on the question of land ownership. Instead, these agreements, whose keystones include the Boston Treaty of 1725–26 and the Halifax Treaty of 1752, were primarily mutual promises of peace and friendship. The agreements also guarantee the Indigenous right to trade without hindrance and the right to fish and hunt in their customary manner. They also pledge regular supplies of food, provisions and ammunition from the Crown.
In this era, the Mi’kmaq and Welastekwewiyik were overwhelmingly Roman Catholic. They commonly had very close relationships to their priests, as well as to their French-speaking Acadian neighbours, with whom they intermarried (see Acadia.) As a result, often they opposed the British, but this stance was modified somewhat through the treaty-making process.
In 1985, the Supreme Court of Canada affirmed the continuing force of the Halifax Treaty of 1752 by reversing a conviction for hunting out of season against James Simon of the Shubenacadie reserve. In spite of the Simon case, provincial governments in the Maritimes, like elsewhere in Canada, have had difficulty accepting that treaties between the Crown and Indigenous peoples limit provincial jurisdiction in Crown lands.
Today, Treaty Day in Nova Scotia commemorates the special relationship between the Mi’kmaq and the Crown. Celebrated annually on 1 October since 1986 (the year after the Simon case), this day honours the signing of the 1752 treaty.
Treaties and the Seven Years’ War in North America, 1754 to 1763
The Seven Years’ War (also known as the French and Indian War) was a time of violence in North America, first between the French and British, and later between the British and the Americans. In all of these conflicts, Indigenous nations wielded considerable influence because of their skilful diplomacy and because their fighting forces could effectively battle in conditions that were often extremely difficult for European and North American soldiers.
In the years leading up to the war, the British knew that their enemies, the French, had already made strong alliances with Indigenous peoples. They too wanted to forge strategic bonds with First Nations. Therefore, in 1755, the British imperial government in London took over the responsibility of treaty making from the colonies. A northern branch and southern branch of the British Imperial Indian Department, roughly separated by the Potomac and Ohio Rivers, were created as extensions of the military and placed directly under the king’s authority. The northern branch, with Covenant Chain expert Sir William Johnson at its head, was a source of further government growth and development for English-speaking Canada. There is a direct line of administrative continuity between Johnson’s department, which polished and extended the old Covenant Chain, and Canada’s modern-day Ministry of Indigenous and Northern Affairs Canada.
Through a series of treaties, Sir William Johnson, with the help of his Mohawk consort and adviser, Molly Brant, successfully neutralized the old French-Indigenous alliance during the Seven Years’ War. These treaties guaranteed the protection of Indigenous lands from Anglo-American colonists looking to take over lands north of the border. After the British victory over the French on the Plains of Abraham, Johnson made agreements with the Seven Nations of Canada (comprising of Mohawk, Abenaki, Anishinaabeg, Huron and Onondaga peoples) who inhabited Catholic missions near Lake Ontario and along the St. Lawrence Valley (see St. Lawrence River), to provide security with regards to their lands, trade and religion. One of these treaties was the Treaty of Oswegatchie in 1760. Another, in the same year, was the Murray Treaty of Longueuil, a peace treaty signed by General James Murray that was designed to provide the Huron with military protection and other freedoms and rights after the French retreated. The Sioui case in May 1990 tested the durability of this treaty. In that year, the Supreme Court of Canada ruled in a groundbreaking decision that the Québec and Canadian governments had infringed on the Huron’s rights to their traditional territory, as established by the Murray Treaty of Longueuil. The court ruled that the occupation of the territory in question by the Crown was subject to the rights and customs of the Huron.
The Royal Proclamation of 1763
Once the French army had been defeated in North America, the British government faced the question of how to conduct relations with the Indigenous peoples who still dominated most of Canada. An emerging loose confederacy of Indigenous nations, spearheaded by the Odawa leader Obwandiyag, also known as Pontiac, opposed British rule in what became known as Pontiac’s War (1763–66.) The confederacy captured nine British posts in Canada in the spring of 1763 and made the matter of establishing peace with Indigenous peoples even more pressing for the British.
Sir William Johnson was an active supporter of the Royal Proclamation of 1763 (precipitated by Pontiac’s War) which, in theory, created clear borders for the new British province of Québec and for the 13 Anglo-American colonies, and reserved the vast territory beyond the Appalachian Mountains for Indigenous peoples. He was also central in the signing of the part of the treaty that was ratified in Niagara in 1764.
The proclamation laid out a procedure for the future opening of portions of Indigenous territory for colonization and settlement by the Crown’s non-Indigenous subjects. Through the proclamation, the Crown claimed “dominion” and “sovereignty” over Indigenous territories and that only the Crown could make treaties with Indigenous peoples. Therefore, on the one hand, the proclamation seemingly protected Indigenous territories from encroachment by outsiders, but on the other hand, it left the possibility for just such encroachment by the Crown. The king decreed that no individual person or colony could purchase territory from Indigenous peoples; instead, the British Crown was to be the essential actor in negotiating treaties.
Affirmed by Section 35 of the Constitution Act, 1982, the Royal Proclamation forms the constitutional basis for Crown-Indigenous treaties in Canada. These principles are still being applied in the making of modern-day Indigenous treaties.
Treaty Making in British North America, 1764 to 1867
From the time of the Conquest to Confederation, British and Indigenous peoples made various alliances to secure against the Americans during the American Revolution and the War of 1812. The arrangements also provided the British with access to traditional territories for the purposes of white settlement and development. It was during this time period that the colonial government began pushing Indigenous peoples off of their homelands and onto reserves. While the earliest reserve in Canada (Sillery) dates to 1637, it was not until the mid-1800s that most reserves in Canada were created.
The Treaty of Fort Stanwix, 1768
The first Treaty of Fort Stanwix (another by the same name was signed in 1784) was the first major agreement negotiated according to the terms of the Royal Proclamation. When the dominant fur-trade companies of Pennsylvania made claims against the British government for damages incurred during the Seven Year’s War and Pontiac’s War, Indian Department officials tried to compensate them through a major land transfer. The Treaty of Fort Stanwix moved the border between Indigenous territory and the Anglo-American colonies significantly westward to the banks of the Ohio River.
The lands ceded in the treaty — most of modern-day Kentucky, Tennessee, West Virginia, Maryland and western Pennsylvania — were the ancestral homes of the Shawnee, Delaware, Cherokee, Seneca-Cayuga, Miami, Potawatomi, Mingo, Odawa and Wyandot. This led to the emergence of hardline leaders in the debate among the Indigenous peoples of the Great Lakes-Ohio Valley area about who was authorized to cede land in treaties.
Sir William Johnson, who was a land speculator, hoped that the Fort Stanwix Treaty would satisfy the entrepreneurial wants of the business community in both the Thirteen Colonies and in Britain. However, the deal only fed the land speculators’ greed. Some of those speculators, whose political representatives included Benjamin Franklin in Pennsylvania and Lord Shelburne in Great Britain, attempted to counter the Royal Proclamation by insisting that Indigenous nations could make land-ceding treaties directly with private colonization companies. Just when it seemed that these powerful business interests were about to prevail, the British government introduced the Québec Act in 1774 which favoured the fur-trade interests of Montréal over the land-speculation interests of Philadelphia, and treaty agreements made with Indigenous peoples over the expansionistic aspirations of Anglo-American settlers. This act was a major factor in the outbreak of the American Revolution in 1776 (see American Revolution – Invasion of Canada.)
The American Revolution and the Haldimand Grant, 1776 to 1784
While many Indigenous peoples tried to avoid involving themselves in the American Revolution, many others believed that a British victory would be the least threatening outcome. After all, it was the proponents of western expansionism who had driven the American Revolution forward. Mohawk leader Joseph Brant led many of his people, who had been especially active allies of the British, into battle. However, in spite of Indigenous peoples’ important role in the war, the diplomats who redrew the map of North America after the revolution paid no heed to the heritage of Crown treaties with Indigenous peoples. In the Treaty of Paris, 1783, a new international border was created along the Great Lakes that ignored both the Covenant Chain and the Treaty of Fort Stanwix. Indigenous nations were not invited to the Paris negotiations even though it was their lands that were traded back and forth.
Many Indigenous peoples, together with officials of the British army in North America, were thunderstruck at this betrayal. To address the resulting crisis, Québec Governor Frederick Haldimand made treaties in 1784 with the Mississauga north of Lake Ontario to open land for those Six Nations people who opted to migrate rather than live under the jurisdiction of the United States and New York state (see Haldimand Proclamation.)
In the years ahead, Brant chose to sell individual parcels of his people’s Grand River lands, which were part of Haldimand’s land grant. Brant based this right to sell lands directly (at full market value) to non-Indigenous buyers on the claim that his community was not limited by the Royal Proclamation, which prohibited transfers of Indigenous territory to anyone but the British sovereign.
Haldimand also prevailed in the decision of the British to retain possession of the military posts south of the Great Lakes, despite the fact that the posts were promised to the United States after the signing of the Treaty of Paris. This was to support the Montréal-based fur trade, whose hinterland continued to include the northern Mississippi Valley. Similarly, retention of the southernmost posts of greater Canada signalled to the Indigenous peoples west of the Ohio River continued imperial support for resistance to the American government’s agenda of westward expansion (see Manifest Destiny.)
The system of treaty alliance between the Crown and the Indigenous peoples of Canada briefly recovered from the diplomatic setback of 1783. Indeed, on the commercial level, the alliance expanded and flourished as never before. This expansion was marked in the growth and prosperity of Montréal, whose leading entrepreneurs organized the North-West Company (NWC.) Not only did the NWC hold and develop its trade network throughout the northern Mississippi Valley, and thereby strengthen the Crown’s alliances with Indigenous peoples there, the NWC’s agents were also led by Indigenous guides to the West Coast and the northwesterly reaches of present-day Canada.
In so doing, these NWC geographers, traders and diplomats, including Peter Pond, Alexander Mackenzie and David Thompson, expanded the influence of British imperialism and Canadian commerce over wider expanses of Indigenous territory. They competed against the Hudson’s Bay Company (HBC), who since 1670 had developed an extensive commercial presence among the Indigenous peoples of what was then called Rupert’s Land and the North-West Territories. Elaborate protocols of diplomatic and economic relations developed between Indigenous peoples and HBC officials. These relations also came into play later in the 19th century when Crown officials negotiated the Numbered Treaties to facilitate the expansion of the Dominion of Canada.
Ohio Valley Disputes and Jay’s Treaty, 1790 to 1794
Indigenous peoples refused to accept the new international boundary created by the Treaty of Paris that cut through their ancestral territory, or that their lands south of the new border now belonged to the United States. Officers of the British Imperial Indian Department, many of whom had Indigenous ancestors, wives and mixed-ancestry children, tended to share this sentiment. Under their urging, the British government refused to cede to the United States the lands north of the Ohio River and south of the Great Lakes. All that had been transferred was the British sovereign’s exclusive right to purchase land from Indigenous peoples through treaties, according to the principles outlined in the Royal Proclamation.
Not surprisingly, the United States government resisted this interpretation. In 1790 and 1791, they deployed to the area a small and ill-organized army which was twice defeated by the well-armed fighting forces of a growing Indigenous confederacy, also known as Miami Chief Little Turtle’s Illiniwek Confederacy.
Indigenous victories over the American army prompted the British government to adopt a new and ambitious strategy with regards to treaty alliances between the Crown and Indigenous peoples. The imperial government planned to encourage the confederacy to the point where it could assert international sovereignty over the lands between the Ohio River and the Great Lakes. The envisioned country was also known as the Indian Buffer State.
In the eyes of British imperialists, this sovereign Indigenous nation-state would have shielded what remained of British North America from the expansionistic designs of the new American republic, whose most aggressive advocates increasingly viewed North America through the lens of Manifest Destiny and imagined that the entire continent was the United States’ God-given inheritance.
The prospects for creating the new Indigenous nation-state dimmed when Little Turtle’s confederacy suffered defeat at the Battle of Fallen Timbers in 1794. This battle was lost in large part because the British failed to support Indigenous troops. As a result of the defeat, British officials agreed to abandon the posts south of the Great Lakes. The terms of this 1794 agreement, known as Jay’s Treaty, also stipulated that Indigenous peoples could freely cross the international border. This stipulation was included largely so that the Montréal fur-trade would not be cut off from its commercial relations with Indigenous peoples in the northern Mississippi Valley.
Although Jay’s Treaty is not technically an Indigenous treaty, its terms have had important ramifications. The United States government has honoured the agreement to the extent that Status Indians from Canada have been able to live and work in the United States without restriction. The treaty is not, however, recognized as binding by Canada — a position that is periodically challenged, especially by those Indigenous nations such as the Six Nations, whose lands are divided by the border.
Treaties and the War of 1812
The prospects of a sovereign nation-state for Indigenous peoples re-emerged in the first decade of the 19th century, as relations between Great Britain and the United States deteriorated. At the movement’s heart were two Shawnee men — Tecumseh and his brother Tenskwatawa (the Prophet) — who urged Indigenous unity in order to defend their dwindling lands.
At first, the religious visionary Tenskwatawa was the more influential of the siblings. When he related his prophetic revelations about delivering his people from outsiders, Algonquian-speakers of several nationalities flocked to his side, creating the new community of Prophetstown, south of Lake Michigan.
However, it was Tecumseh who gave the movement political direction. As war between the United States and Britain became imminent, Tecumseh advocated coordinated action. He aimed to elevate Indigenous treaty-making authority above the level of domestic contract to the level of full-fledged international relations. To assert this degree of sovereignty, Tecumseh’s confederacy would need a central government, a strong fighting force and a powerful ally. Great Britain could be that ally, though it fell primarily on Indigenous peoples to generate the unity that was needed to counter the American plan to absorb Indigenous territory.
The Shawnee strategists’ independence was compromised in 1811 after General William Henry Harrison’s American forces overran the confederacy’s capital at Tippecanoe (see Battle of Tippecanoe.) This forced Tecumseh to form closer links with the British Imperial Indian Department.
When trade embargoes and conflicts at sea finally sparked the War of 1812, the rapid mobilization of the confederacy’s fighting forces were a deciding factor in the early course of the conflict. Especially decisive was the role of Indigenous peoples in the British takeover of Michillimackinac and Detroit (see First Nations and Métis Peoples in the War of 1812.) The events of 1812, therefore, vindicated, for the British, the utility of the treaty system because it allowed military alliances to be formed.
For those on the Indigenous side of the alliance, the outcome was more tragic. After Tecumseh was killed in battle in 1813, the confederacy largely disintegrated. In the years that followed, many Indigenous people whose territories lay east of the Mississippi were forced to move west. Others, however, migrated from south of the Great Lakes across the border that was established in 1783 but not solidified until 1814, when the Treaty of Ghent ended the War of 1812.
Selkirk Treaty, 1817
While treaty making only really reached Indigenous peoples in western Canada after Confederation, an important treaty was made in 1817 by the Earl of Selkirk in what is now Manitoba. The Selkirk Treaty surrendered Indigenous title in areas “adjacent to [the] Red River and Assiniboine River.” The tract also extended into the United States as far as the Great Forks (also known as Grand Forks.) In exchange for their lands, the Ojibwa (Chippawa or Saulteaux) and Cree peoples were each awarded 100 pounds of tobacco annually. Five chiefs signed the treaty with drawings that represented an important aspect of their identity.
The Selkirk Treaty was the first treaty with Indigenous peoples in western Canada, in conformity with the Royal Proclamation of 1763. It was also therefore the beginning of the official relationship between Indigenous people in the West and the Crown.
Upper Canada Treaties, 1781 to 1862
Also known as the Upper Canada Land Surrenders, these agreements constitute an estimated number of 30 treaties covering much of what is now southwestern Ontario. Likely the first of these was Michilimackinac Island, No. 1, signed in 1781, and presumably the last was the Manitoulin Island Treaty, signed in 1862.
These surrenders initially provided Loyalists with lands on which to settle after the American Revolution. The Indigenous signatories, including many Anishinaabe peoples, the Huron-Wyandot, and other First Nations, received cash payments and other goods in return for title to the land.
In later years, many descendants of treaty signatories argued that their lands were unjustly taken. For example, the Mississauga argued that the Toronto Purchase, originally negotiated in 1787, covered unceded territory. Disputes over the accuracy of land allotments led to re-assessments and a revised treaty in 1805. However, the agreement ultimately still favoured the British because it expanded the Crown’s claim over the area and paid a measly 10 shillings for 250,880 acres of land. Moreover, this location was also chosen because of its strategic value, allowing access to waterways that facilitated the transfer of goods.
Indigenous peoples also claim that the signatories did not understand the terms of the treaty and that they never accepted the 1805 boundaries. It was only in 2010 that the Mississauga and the Government of Canada reached a settlement. As part of the deal, the Mississauga received $145 million in compensation.
Other well-known and controversial Upper Canada Land Surrenders are those that deal with Manitoulin Island and the Saugeen Peninsula, also called the Bond Head Treaties. In 1836, Lieutenant-Governor Sir Francis Bond Head shifted Indigenous policy by ceasing to encourage Indigenous peoples to become Christian farmers. Instead, he wanted to move them to Manitoulin Island on Lake Huron and the Saugeen Peninsula north of Owen Sound. There, they could hunt and fish without encroachment from settlers. This plan also spoke to the stereotype of “noble savagery” — a view held by the lieutenant-governor and many of his contemporaries. By the terms of these two 1836 treaties (one for each region), both areas of land had been reserved for Indigenous peoples.
The plan was not only to displace Indigenous agriculturalists from Upper Canada, but also the expected Indigenous refugees from south of the Great Lakes, whose lands the American government now claimed. Bond Head was met with international criticism for his plan because some argued that it was apartheid (racial segregation).
In 1854 and 1862, new treaties were drawn up for the Saugeen Peninsula and Manitoulin Island, respectively. The agreements stipulated that the Indigenous peoples involved would be paid regular interest on funds from all Crown sales of the ceded (surrendered) territories. This promise failed to win the participation of an entire community of Roman Catholic Odawa people on the eastern portion of Manitoulin Island. They were uninterested in part because hunting and fishing still supplied their needs. With support from their Jesuit missionaries, these Odawa people successfully resisted signing the Manitoulin treaty. To this day, Wikwemikong, Ontario, remains an unceded Indigenous reserve.
By the mid-1830s, treaties covered most of the arable lands in Upper Canada. These treaties involved an initial distribution of goods and money with promises of small annual payments. Only gradually did the principle develop that agreements should include allocation of reserves.
The Robinson Treaties, 1850
The concept of reserves was advanced in 1850, when Crown representative William Benjamin Robinson secured agreement from Indigenous leaders to “cede, grant, and convey unto Her Majesty” about 50,000 square miles (129,500 km2) north of the upper Great Lakes. These transactions, known as the Robinson-Huron and Robinson-Superior treaties, provided for the creation of 24 new reserves, each to be held by the Crown for the “use and benefit” of the nations whose leaders’ names and marks were on the agreements. Also included in the bargain were initial payments worth £4,000, plus “perpetual” annuities valued at about £1,100.
Governor General Lord Elgin and Chief Shinguakouce pressured Canadian officials to authorize treaty negotiations. In a relatively minor 1849 confrontation, referred to as the Michipicoten War or the Mica Bay Uprising, a resistance movement made up of Indigenous peoples and Métis people asserted their uncompromised interest in the Precambrian Shield, where Canadians had already begun minor mining operations. This war precipitated the treaty agreements.
In the Robinson Treaties, the Crown promised that Indigenous peoples could hunt and fish throughout the ceded territory “as they have heretofore been in the habit of doing.” This promise, the first of its kind in an Indigenous treaty, was made, Robinson explained, so that Indigenous peoples could not make future claims in return for the loss of their usual means of support. The Robinson Treaties became important models for the treaty negotiators of the Numbered Treaties that followed in the late 19th century and into the 20th century.
The Vancouver Island Treaties (Douglas Treaties), 1850 to 1854
While treaty making up until 1850 was only conducted in the Maritimes, Manitoba and Upper Canada, the Douglas Treaties (named after Governor James Douglas) were signed between 1850 and 1854 with 14 First Nations on Vancouver Island. Also known as the Vancouver Island Treaties, First Nations exchanged approximately 930 km2 of traditional territory for clothing, cash and other goods. They were told they would still be able to live, hunt and fish on the surrendered lands. With the influx of white settlers, however, Indigenous peoples were increasingly pushed off of these territories and onto reserves.
Descendants of the Indigenous signatories have questioned the legitimacy of the treaty proceedings. As non-English speakers, the chiefs were unable to verify on paper the terms of the agreement, which were communicated verbally. Signing the bottom of the treaty pages with an X, chiefs believed they were agreeing to share — not to cede — their lands. Their descendants have also argued that colonial officials inserted new clauses onto blank pages of the treaties that had already been signed without the consent of Indigenous peoples.
Elders and researchers at the University of Victoria have since translated the Douglas Treaties into the languages of the Sencoten and Lekwungen First Nations for the first time. For the Indigenous signatories of the Douglas Treaties, this was a step towards reconciliation.
Post-Confederation Treaties, 1867 to 1975
The years immediately following Confederation were characterized by the Canadian government’s desire to expand westward and northward as a means of securing the nation’s economic future. This led to the signing of various treaties between the government and Indigenous nations in the Prairies and parts of the North, British Columbia and northern Ontario. These treaties include the Numbered Treaties and the Williams Treaties.
The Numbered Treaties, 1871 to 1921
The 11 Numbered Treaties were negotiated between 1871 and 1921 as the Canadian government sought to extend its sovereignty over western, and portions of northern, Canada. Confederation in 1867 set the stage for Canada’s purchase from the Hudson’s Bay Company of Rupert’s Land and the North-Western Territory. As a result of the transfer, the Canadian government legally assumed responsibility for the “protection” and “well-being” of the region’s Indigenous peoples.
The duty of compensating Indigenous peoples for their interest in their traditional territories also fell to Canada. Therefore, the treaty-making system that had evolved in Upper Canada in the years before Confederation was exported westward and northward. Further development of the treaty system was based more on economic practicality than it was on any conception of Indigenous rights. During the 1870s, the United States government spent over $20 million fighting Plains peoples. This amount was larger than the entire budget of Canada, and so federal officials relied on treaties to ensure relatively peaceful consent to Euro-Canadian settlement from the territory’s approximately 35,000 Indigenous inhabitants.
The newly formed North-West Mounted Police (NWMP) became an important factor in the negotiation process. Following their arrival in 1874 in present-day southwest Alberta, the NWMP became influential among the Siksika, Piikuni, Kainai, Tsuu T’ina and Stoney-Nakoda. Although their role was to restrict Indigenous movement in their reserves, thereby altering their traditional way of life, the police did manage to build relatively positive relationships with Indigenous peoples by driving out American whisky traders. In this police-controlled atmosphere, treaty negotiators and Indigenous leaders signed various treaties.
Crown officials negotiating the first Numbered Treaties were instructed to offer terms similar to those in the Robinson Treaties. The Indigenous delegations in these and following bargaining sessions, however, made it clear that more was expected. Indigenous peoples sought to cope with the destruction of their economies — notably, the decimation of the bison on the prairies — through treaties. From some Indigenous peoples’ perspectives, the spirit and intent of 19th and early 20th-century treaties therefore includes a commitment from the Canadian government for the instruction and material aid necessary for transitioning to a new way of life.
In many cases, however, promised provisions and goods were delayed or never made their way to the First Nations. The $5 annual cash payment that many treaty peoples received (and still receive) also made no significant addition to the family purse. According to some Indigenous peoples, however, this exchange does signify the persistence of Indigenous-Canadian treaty relationships.
After the Manitoba Act of 1870, the Canadian government attempted to extinguish Métis title using scrip, dollar-valued land certificates. Unlike with the First Nations, Métis peoples were dealt with on an individual basis. Allotments of land totalling about 160 to 240 acres were available where scrip was issued. However, in order to redeem scrip, many Métis had to travel long distances to access the Lands Title offices. The burden of relocating their families, coupled with an overly-complex application process, meant that scrip was often not redeemed or was sold for a fraction of its real worth.
Efforts to implement this scrip program were also often undermined by the fraudulent activities of “jobbers,” who amassed the majority of the resources originally earmarked for Métis communities. Fraudulent land speculators claimed to represent Métis heads of household and managed to claim land that was not rightfully theirs. The authorities eventually amended the Criminal Code in 1921 to include these criminal behaviours. Nevertheless, many Métis people were cheated out of their land.
In 2013, the Supreme Court of Canada ruled that the government had failed in its obligation to properly distribute and safeguard the 1.4 million acres set aside for the Métis in the Manitoba Act. While the court made no specific remedies, it acknowledged Métis rights to their homelands.
Williams Treaties, 1923
Since the late 19th century, Chippewa and Mississauga peoples in the Simcoe and northern Lake Ontario regions had been trying to get the government to recognize errors in some early colonial treaties. For example, a large tract of land in the area around the Muskoka and Upper Ottawa River was not included in the Upper Canada Treaties. Appointed by the federal minister of justice in 1916, R.V. Sinclair began to investigate these matters. He confirmed that there were in fact many problems with the treaties’ allotment of lands and that not all lands had been fully ceded.
In 1923, the Canadian and Ontario governments appointed a three-man commission to further investigate the issue. Sinclair joined lawyers Uriah McFadden and A.S. Williams in what became known as the Williams Commission. Their report validated the claims of the Indigenous peoples not only to the territories in question, but also to other portions of land below Lake Simcoe and on the north shore of Lake Ontario.
Since the government had already opened these areas up for white settlement and for the exploitation of natural resources, the commission began negotiating two treaties known as the Williams Treaties. The first treaty with the Chippewa in 1923 covered the lands from Georgian Bay to the Ottawa River. The second, also signed in 1923, but with the Mississauga, covered the lands from Lake Simcoe down to the shore of Lake Ontario. In signing the Williams Treaties, the Indigenous peoples not only surrendered their title to the land but also their hunting and fishing rights on the properties — a significant departure from what had become common practice in the Robinson and Numbered Treaties.
Land Title, Rights and the Indian Act, 1920s to 1970s
While in Ontario and the Prairie provinces, the development of a system of land tenure was firmly founded on Indigenous treaties, elsewhere in the country (i.e., most of British Columbia, the Yukon, the Northwest Territories, Québec and the Maritimes), non-Indigenous settlement, for the most part, proceeded without purchase of Aboriginal title. Registered Indigenous peoples (see Indian) were nevertheless allocated to reserves and, even without treaties, fell under the direct administrative control of the federal government.
Indian affairs were governed more by the federal Indian Act than by Indigenous treaties. First introduced in 1876 as a consolidation of previous colonial ordinances that aimed to eradicate First Nations culture in favour of assimilation into Euro-Canadian society, the Indian Act became the principal statute through which the federal government administers Indian status, local First Nations governments and the management of reserve land and communal monies. The Act has been amended several times, most significantly in 1951 and 1985, with changes mainly focusing on the removal of particularly discriminatory sections.
Nisga’a Treaty, 1973 to 2000
Indigenous peoples from British Columbia were largely responsible for breaking through the weight of political disinterest that had set in around the Indigenous land question since the early 1920s. Although the Douglas treaties had been made in the 1850s on Vancouver Island, and eight First Nations in British Columbia had signed Treaty 8 in 1899, officials since then have consistently resisted the view that Indigenous peoples in the province have inherent Indigenous rights.
The Nisga’a people of the Nass River Valley (see Nass River) have long opposed this position. In 1969, Nisga’a chief Frank Calder represented his nation in a court case against British Columbia. Known as the Calder case, the Nisga’a tried to establish that they had never surrendered title to their homelands. Although the British Columbia Supreme Court ruled against the Nisga’a, the Supreme Court of Canada agreed to hear their appeal. Six judges were split evenly on the validity of the Nisga’a claim: three argued that Nisga’a title had been extinguished by land laws made before British Columbia entered Confederation; the other three disagreed, declaring that the right was never extinguished (surrendered) by statute or treaty, which is what the Nisga’a had argued. The seventh judge, Justice Pigeon, tipped the balance against the Nisga’a on a procedural point — that the Nisga’a had failed to obtain permission to sue the Government of British Columbia from the attorney general. Therefore, the Nisga’a lost based on a technicality, but the case served as a catalyst for change, concerning the recognition of Indigenous rights in Canadian law.
The Nisga’a case was one of several key developments that helped cast Indigenous rights into the spotlight in Canada during the 1970s. The pivotal event had been the publication in 1969 of a federal White Paper on Indigenous policy, which reflected the ideology of Prime Minister Pierre Trudeau. He advocated ending treaties and thereby removing special status for Indigenous peoples. To Trudeau, who also opposed special constitutional status for the Province of Québec, it was an “anomaly” (to use Jean Chrétien’s words) to have treaties between nations within Canada. Indigenous peoples strongly opposed the White Paper, and were galvanized into stronger political cohesion and activism as a result. The year after the Supreme Court’s Nisga’a decision in 1973, there was a change in federal policy: an Office of Native Claims was established to resolve Indigenous land disputes.
Beginning in 1976, the Nisga’a and the Trudeau government entered into treaty negotiations. Fourteen years later, in 1990, both parties reached a preliminary agreement, and also welcomed the Province of British Columbia into the negotiations. In 1996, the three parties finalized the agreement, but it was not until 2000 that the Nisga’a achieved self-government. The deal also put the Nisga’a in control of around 2,000 km2 of their ancestral territory. The Nisga’a Treaty is the first modern-day treaty in British Columbia, and has served as a model for many future First Nations seeking self-government and modern treaty agreements in Canada.
Modern Treaties, 1975 to present
Established in 1974, the Office of Native Claims (ONC) defined two types of modern land claims: specific and comprehensive. Specific land claims address Indigenous grievances over the failure of the federal government to keep promises made to them in the Indian Act, historic treaties or other agreements. Comprehensive land claims deal specifically with questions about land title. A comprehensive claim can be made for any part of Canada where Aboriginal title has never been ceded. The Specific Claims Tribunal (2008) has since supplanted the ONC and is the federal body that continues to hear specific and modern land claims.
James Bay and Northern Québec Agreement, 1975
The 1975 James Bay Agreement is often considered to be Canada’s first modern-day treaty. As in earlier times, a move to open up a new resource frontier — in this case, the hydroelectric potential of the rivers flowing into the eastern region of James Bay — led to negotiations with Indigenous peoples. Although the enormous hydroelectric project was initiated in 1971 without their sanction, the area’s Cree and Inuit peoples asserted their unceded Indigenous rights through the courts. The Cree also used the media to assert their rights (see James Bay Project.)
In the complex settlement that ensued, the agreement established a basis for various institutions of Cree and Inuit self-government, such as school boards and health and social service agencies. In 1978, as an adjunct to the James Bay Agreement, the Naskapi band of Schefferville concluded the Northeastern Québec Agreement with the federal and provincial governments.
The negotiation of modern-day treaties somewhat stagnated during Prime Minister Brian Mulroney’s first term (1984-88.) However, this state of affairs was to change during Mulroney's second term (1988-93.) In June 1990, Elijah Harper, an Oji-Cree MLA from Manitoba, blocked a sweeping revision to the Canadian Constitution negotiated at Meech Lake by the 11 first ministers without Indigenous representation (see Meech Lake Accord: Document.) The next month, an argument between the Mohawk of Kanesatake and the town council of Oka over a proposed golf course flared into an armed standoff (see Oka Crisis.) In 1991, the government appointed a Royal Commission on Aboriginal Peoples just as a surge of new political interest was invested into modern-day treaty making. The Oka crisis and other First Nation activism helped to bring Indigenous issues to the fore.
Modern-Day Treaties in Northern Canada
This surge of political interest in treaty making was mostly evident in the territories north of the 60th parallel, where bilateral, nation-to-nation negotiations led to the making of the Inuvialuit Treaty (1984), the Gwich’in Comprehensive Land Claim Agreement (1992), the Nunavut Land Claims Agreement (1993) and the Sahtu Dene and Métis Comprehensive Land Claim Agreement (1993.)
From 1993 to 2005, the 11 First Nations of the Yukon First Nations Final Agreements also received their own modern treaties. These nations include: Champagne and Aishihik, Na-cho Nyak Dun, Teslin Tlingit Council, Vuntut Gwich’in, Little Salmon/Carmacks, Selkirk, Tr’ondëk Hwëch’in, Ta’an Kwäch’än Council, Kluane, Kwanlin Dün and Carcross/Tagish.
In 2003, the Tlicho from the central Northwest Territories celebrated the enactment of the Tlicho Land Claims and Self Government Agreement.
Following the James Bay Treaty, these agreements have enabled Indigenous communities to set up municipal and corporate structures and to allow them to participate as shareholders in the exploitation of natural resources.
Modern-Day Treaties in British Columbia
In British Columbia, there are not only two but three types of government involved in the negotiation of modern-day treaties — federal, provincial and Frist Nation. In 1991, treaty negotiations with some Indigenous nations in British Columbia began.
In keeping with the historic role of the Nisga’a in forcing the issue of unrecognized Aboriginal title, their treaty sets a precedent. Behind the Nisga’a are over 50 other Indigenous nations in British Columbia negotiating similar agreements in a six-stage treaty process with the British Columbia Treaty Commission. The final agreements for the Tsawwassen First Nation and the Maa-nulth First Nations (five nations in total) came into effect as of April 2009 and April 2011, respectively. The Tla’amin Final Agreement came into effect in April 2016.
In a historic decision on 26 June 2014, the Supreme Court of Canada granted the Tsilhqot’in title to 1,700 km2 of land in British Columbia. With the ruling, the Tsilhqot’in have exclusive rights to the land and to associated benefits and profits, and must grant their consent before any economic development occurs. Significantly, the ruling clarifies the meaning of and criteria for establishing Aboriginal title: an Indigenous group must prove continual and exclusive occupation. In addition, Indigenous nations with legitimate claims — whether ongoing, settled, or merely possible — must be consulted and grant consent before economic development may proceed.
Modern-Day Treaties in Québec and the East Coast
The James Bay treaty covers much of northern and western Québec; however, there are other settlement areas in Québec and Eastern Canada. The Labrador Inuit (Nunatsiavut region) and Nunavik Inuit (northern Québec) celebrated their land claims agreements in 2005 and 2006, respectively. In the southeastern part of Hudson’s Bay lies the area covered by the Eeyou Marine Region Land Claims Agreement, signed in 2010.
The Innu of Labrador signed a modern-day treaty in 2011, after 15 years of lobbying against a company’s discovery and purchase of a huge nickel deposit at Voisey’s Bay in Labrador. Before the discovery, the Innu had asserted Aboriginal title in their lands, which they call Ntesinan. In addition, the Innu particularly resisted the establishment of a low-level jet training facility in Goose Bay. This criticism drew international attention from peace activists and environmentalists, who used their influence to publicize the effect of NATO’s war preparations on Innu hunting practices.
Conflicting Views on Modern Treaties
Some non-Indigenous critics charge that modern treaty making puts too much emphasis on race and ethnicity. Echoing the 1969 White Paper, members of the Reform Party of Canada lobbied against the treaty system, arguing that it undermines individual equality and one law for all Canadians.
Indigenous activists have also criticized certain modern treaties. In the case of the Nisga’a treaty, for example, some contended that the Nisga’a made concessions in areas such as taxation and property rights that were to the detriment of the Nisga’a people. Indigenous people also expressed their opposition to modern treaties through an armed stand made by the Defenders of the Shuswap Nation at Ts’Peten (Gustafsen Lake) in the summer of 1995. This group questioned the legitimacy of a process that they said used the imagery of treaty making to hide old patterns of colonization including co-optation of Indigenous elites, dispossession through the extinguishment of Indigenous rights and cultural genocide through the assimilation of Indigenous peoples into the Euro-Canadian mainstream.
Another Indigenous critique of treaties involves concern that modern-day treaties should not use the language of surrender and extinguishment. As the Nisga’a Tribal Council asserted in a submission to the federal government, “Extinguishment severs a First Nation’s link with our past… Canadians must come to understand that our enjoyment and use of our lands and resources in the years to come is based not on a grant from the Crown, but is a vital part of our ancestral inheritance.”
Any debate over surrender and extinguishment must grapple with the federal government’s fiduciary obligation towards Indigenous peoples. This obligation, which was given clear judicial articulation by the Supreme Court in the 1984 Guerin case, derives from the Royal Proclamation of 1763 and other legal instruments (see Gertrude Guerin.) At its most extreme, the trustee-like role ascribed to Indigenous peoples through such instruments turned them into wards of the state.
The question arises of how the government of Canada could fulfil its fiduciary responsibility in treaties in which Crown officials had Indigenous negotiators sign documents that extinguished Indigenous rights? If the Crown was the chief beneficiary of treaties that formalized the surrender of these rights, would Crown officials not then be in a position of conflict of interest?
Manitoba Judge A.C. Hamilton addressed these issues in a 1995 report to the minister of Indian Affairs and Northern Development entitled A New Partnership. He wrote: “It appears to me that the demand that one party sign a surrender of rights recognized and affirmed by the Constitution is in flagrant breach of the Crown’s fiduciary obligation.” Judge Hamilton proposed several options for how modern-day treaties might be worded to avoid the pitfalls of extinguishment while providing non-Indigenous interests with assurances that their land titles would be safe from challenge. Canada adopted some, but not all of, the recommendations.
There are Indigenous peoples whose representatives were not present at historic treaty negotiations, and are now seeking compensation. One such group is the Lubicon Cree, whose ancestors were not present in the making of Treaty 8 in 1899. The reserve-less Lubicon, whose territory lies within a lucrative oil patch in Alberta, have faced tremendous resistance, both inside and outside the courts, in their search for a settlement. They have been frustrated in their efforts to find a secure niche through a modern-day treaty.
Other Indigenous peoples excluded from the treaty system include the Teme-Augama Anishnabai and the people of the tiny overpopulated Long Lake 58 reserve. These communities were passed over in the 1850 negotiation of the Robinson Treaties.
The Métis generally have been excluded from treaty agreements. While Métis adhesions were eventually included in some of the Numbered Treaties, the Métis still fight for title to traditional lands.
On the west coast, the Sinixt have received acknowledgment of their existence as a First Nation in Canada, as well as their traditional territories and their rights to those lands, relatively recently, in 2017.
This is not an exhaustive list of Indigenous peoples attempting to gain land claims settlements. It simply serves to show that there are communities all over Canada with various claims to traditional lands and waters.
Treaties, the Canadian Constitution and Citizenship
Indigenous and treaty rights were a particularly controversial and difficult issue during the patriation of the Canadian Constitution. On 5 November 1981, nine provincial governments (excluding Québec) entered into the federal government’s patriation plan on the condition that Indigenous and treaty rights be stripped from the draft constitution. However, after widespread demonstrations and campaigning by Indigenous groups, section 35, which recognizes and reaffirms existing Indigenous treaty rights, was reinstated. Premier Edgar Peter Lougheed of Alberta was instrumental in inserting the word “existing,” expecting this would lead to a more limited judicial interpretation of section 35.
Indigenous peoples argued that Canada lacked the authority to sever the relationship between their nations and the imperial Crown without consent. Their challenge to the legality of patriation ultimately led to Chief Justice Lord Denning’s judgement of January 1982, in which he confirmed that treaty relationships entered into by Indigenous peoples in Canada had indeed been with the Crown in respect of the United Kingdom. Through constitutional evolution, however, the responsibility to manage treaty rights had come to be vested with the Canadian government. “No parliament,” proclaimed Lord Denning, “should do anything to lessen the worth of these guarantees.”
Treaties and the Meech Lake and Charlottetown Accords
Indigenous peoples held to their conviction that self-government is an inherent right, and must be constitutionally recognized as such. In the 1987 Meech Lake Accord, the first ministers, while recognizing Québec as a “distinct society,” failed to recognize this right. This failure led to Elijah Harper’s stand on the floor of the Manitoba legislature, which contributed to the demise of the Meech Lake Accord.
Four Indigenous organizations, including the Assembly of First Nations, were included in the constitutional deliberations that culminated in the Charlottetown consensus report (see Charlottetown Accord and Charlottetown Accord: Document.) This report was subjected to a national referendum in 1992. The Charlottetown document, which was approved by the federal and provincial governments of Canada, included a proposed addition to section 35 stating, “the Aboriginal peoples of Canada have the inherent right of self-government within Canada.” The word “inherent” was intended to demonstrate that the right was derived not from the Crown but from the histories, distinct identities and self-determination of Indigenous peoples whose existence predates that of Canada.
The Charlottetown document was rejected as a basis for constitutional amendment. While most Inuit voters happily sanctioned the accord, First Nations voters largely rejected it. This rejection marked a lack of confidence at the grassroots level in First Nation communities. In some parts of the country, Indigenous rejection was also an expression of unhappiness with the format of multilateral negotiations. By its very nature, this federal-provincial-Indigenous format undermined the integrity of bilateral, nation-to-nation treaty making with the Crown that, in the view of many Indigenous peoples, still defines their alliances with the Canadian state.
Québec Sovereignty and Treaty Rights
The provincial election of the Parti Québécois government (1994) and the referendum on Québec sovereignty (1995) highlighted treaty issues in a debate about partitioning the province if it were to declare independence. One of the key participants was Matthew Coon Come, Grand Chief of the Cree (of Québec.) In a Cree referendum during the Québec sovereignty referendum, 96.3 per cent of Chief Coon Come’s people voted to maintain their alliance with Canada, even if Québec declared independence. A referendum of Inuit peoples in Québec had similar results. Chief Coon Come asserted that if Canada is divisible, so is Québec.
Treaties and Canadian Citizenship
The phrase “we are all treaty people” means that everyone in Canada — settlers and Indigenous peoples alike — are in some way affected by treaties. In 2016, this phrase was given more meaning when the Trudeau government announced its plans to honour treaties in an amended citizenship oath for new Canadians. Listed as one of the 94 calls to action by the Truth and Reconciliation Commission (TRC), this proposal includes a promise to “faithfully observe the laws of Canada, including treaties with Indigenous peoples.” For many Indigenous peoples, the new oath is just the beginning of what they hope are more changes, such as revising the citizenship test to better reflect Indigenous history and ensure that citizens-to-be (or immigrants) are well-informed about Indigenous issues.
Treaties in International Law and Politics
Treaties and the United Nations
In 1987, the United Nations Working Group on Indigenous Populations began a global study of “treaties, agreements and other constructive arrangements between states and Indigenous populations.” The government of Canada attempted to derail the study, arguing that an international “focus on Treaties essentially distorts the debate about Aboriginal peoples, whose plight today stems in most cases not from treaties or from a lack of treaties, but rather from their systematic exclusion from the economic, social, cultural and political life of the countries in which they live.”
In spite of Canada’s intervention, the UN treaty study continued under the direction of Cuban Special Rapporteur Miguel Alfonso Martinez. In 1989, he visited the Onion Lake reserve in Saskatchewan to hear testimonies from treaty peoples. He issued progress reports and his final report was published in 1999. His work influenced the UN’s Declaration on the Rights of Indigenous Peoples, which was adopted by the United Nations General Assembly on 13 September 2007. Article 37 of that declaration reads: “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.”
In November 2010, Canada announced its support of the declaration in principle, but did not offer a full endorsement. The government had many reservations about the way the declaration addressed traditional territories and resources thereupon, as well as the duty to consent (referring to the government’s duty to consult Indigenous peoples about any proposed developments that may affect their lands and communities.)
Five years later, Prime Minister Justin Trudeau announced plans to revoke Canada’s objector status. In May 2016, Carolyn Bennett, the Minister of Indigenous and Northern Affairs, declared that Canada had fully endorsed the declaration. Implementing the declaration will take much coordination between Indigenous peoples and the federal, provincial and territorial governments.
Treaties and NAFTA
In spite of Indigenous peoples’ efforts to gain recognition of their treaties as proof, in part, of their capacity to act as equals in international relations, the Government of Canada continues to maintain that these agreements lie within domestic law. This issue was brought to the fore in 1994, when the Governments of Canada, the United States and Mexico instituted a new treaty that remade the commercial map of North America as a cohesive trading block. The negotiations that led to the North American Free Trade Agreement (NAFTA) included no place for Indigenous delegations. This sparked an uprising in Chiapas, Mexico, on 1 January 1994, the day the treaty came into force.
The politics of exclusion in NAFTA echo the assumptions manifest in the making of the Treaty of Paris in 1783, in the transfer of the HBC titles to the Dominion of Canada in 1869–70 and in the making of the Meech Lake Accord in 1987.
Conclusion: Honouring the Past and Looking Forward
Treaties constitute a thread of continuity woven through the earliest beginnings of the Canadian state until today. However, treaty relationships have looked different over the years. Before the Conquest, treaties helped maintain peace for the purposes of trade and war. From the outset of the Seven Years’ War to the close of the War of 1812 in 1814, Indigenous nations wielded considerable influence due to their diplomacy and skilled fighting forces as well as their knowledge of the terrain and the fact they provided Europeans access to natural resources. Consequently, various Indigenous confederacies rose to prominence on the world stage. In the years to come, however, their influence over colonial officials dwindled as Indigenous populations were reduced by disease and war, and Indigenous peoples were increasingly forced onto reserves. While many treaties were designed to offer certain government protections and assistance for “as long as the sun shines and the water flows,” many consider these broken promises. The descendants of treaty signatories are still trying to protect their territories, using the land claims process and initiating rights-based arguments in court.
Differences in the interpretation of treaties have also affected attitudes towards the Crown-Indigenous relationship over time. The scripts of the older treaties express the legalistic and imperialistic frame of mind of the British. On these documents, Indigenous leaders often marked their approval by drawing a picture of the animal totem of their clan. These designs demonstrate the different attitudes of Indigenous nations and the colonial government towards law, government, nature and society. These differences have, however imperfectly, been incorporated over the years into the institutional structures of Canada through the treaty making process.
Treaties have been viewed as everything from domestic contracts to international treaties between sovereign powers. In spite of inadequacies in the negotiation, maintenance and renewal of Indigenous treaties, the process itself demonstrates that Canada has grown and developed according to constitutional principles wherein recognition of Indigenous rights is essential. These founding agreements between peoples constitute fundamental features in the unfolding drama of Canadian federalism. As Canada becomes home to an increasingly diverse population, the task of interpreting the significance of Indigenous treaties for new generations of Canadians becomes ever more challenging.
Patrick Macklem and Douglas Sanderson, eds., From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (2016)
John Borrows, Canada’s Indigenous Constitution (2010)
Charlie Angus, Children of the Broken Treaty: Canada’s Lost Promise and One Girl’s Dream (2017)
James Miller, Compact, Contract, Covenant: Aboriginal Treaty-making in Canada (2009)
Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (2014); Aboriginal and Treaty Rights in Canada (2011)