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Supreme Court of Canada building in Ottawa. (Dave Chan For The Globe and Mail)
Supreme Court of Canada building in Ottawa. (Dave Chan For The Globe and Mail)

HARRY SWAIN

Native treaties will always intimidate governments Add to ...

One of the great achievements of the 1992 settlement of long-standing treaty land entitlements in Saskatchewan has been the amity, indeed enthusiasm, it has created among all segments of public opinion.

First nations’ economic development has been greatly accelerated, retiring farmers have a real market for land, and all political parties celebrate the historic deal among the Federation of Saskatchewan Indian Nations and the two senior governments, mid-wifed by the Treaty Commission. The province has a new motto – “We Are All Treaty People” – and a module on treaties for every high school.

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So maybe this is the time to build on that success with a national dialogue on treaties, their meaning, their utility as a guide to public policy, their future. One of the Prairie universities might provide neutral turf and invite all parties. This could be a welcome outcome of the recent meeting between the Assembly of First Nations and the Prime Minister. It wouldn’t even be expensive – an hour’s worth of Aboriginal Affairs and Northern Development’s expenditures would do the trick.

Welcome, but unlikely. Why? In the first instance, governments are shy about stating in public what they believe in private, namely that the obligations in the old treaties have long been overtaken by more generous public policies. Instead of a schoolhouse and teacher, there are whole education systems, plus subsidized post-secondary education. Instead of a medicine box, there is the full panoply of extended free health care. Instead of emergency rations in a starvation winter, there is welfare and income support modelled on that of the provinces. And so on.

The first nations have a more expansive view. They want to talk about the “spirit and intent” of the treaties, not just the dusty words on a nineteenth-century paper. They say the Crown agreed to be their trustee with respect to their lands and waters, and that the Crown must always behave with the best interests of their fiduciaries. There is no end to what the Crown owes.

Both might cynically say that all this was discussed in the Royal Commission on Aboriginal Peoples twenty years ago and came to nothing: why waste more time jawing? But two answers come to mind. Every generation needs to learn its lessons anew, and the discussions might be guided toward some concrete pieces of public policy.

But there are other reasons why opening up historical cans of worms might be unattractive to governments in Canada. Take, for instance, the Mik’Maw Treaties of 1725 and 1752, which are the basis of land titles in all three Maritime Provinces. Governments assert that these were land cession treaties through which aboriginal rights and title passed to the Crown, which then granted land titles to (principally British) settlers. However, a close reading of these treaties reveals no statement of land cession at all. In fact, they are modelled on the treaties of “navigation, friendship and commerce” with which European governments were accustomed to use to end their frequent wars. And one of these days, when and if the Mik’Maw learn to trust the courts as much as they trust their own ability to negotiate, they might just seek a declaration that this is indeed so. Such a judgment would upend all land titles in three provinces at a stroke. Our courts, of course, ever since the Charter, have been quite open to expansive views of aboriginal rights.

In Quebec, or at least that part of it once ruled by the King of France, our legal theory is that no treaties are necessary because aboriginal rights and titles were extinguished by the sovereign before 1759. Now, even modern Quebec agrees that the King’s writ didn’t go very far north, since they have been parties to treaties with the James Bay Cree and others in Ungava. But they have joined the federal government in arguing that aboriginal and treaty rights do not exist in the south. Except that the Supreme Court of Canada, in Sioui, declared that a hasty laisser-passer note written by the English governor James Murray in 1760, right after the conquest, was indeed a treaty. Who knew? And who knows what the court would say if a broader case based on persisting aboriginal land rights were to arise?

The bottom line is that, no matter how constructive a dialogue on treaties might be in Ontario and the West, governments have every incentive to let sleeping dogs lie.

Harry Swain is a former federal deputy minister of Industry Canada and Indian and Northern Affairs Canada

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