Leading Cases. and non-aboriginal societies for centuries.

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1 Introduction Section 35(1) of the Constitution Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of Canada s Aboriginal peoples. By its wording, this constitutional provision indicates that it did not create treaty rights. As noted in CRRF Facts About... Leading Aboriginal Rights Cases, treaties between the Crown (the government as symbolically represented by the person of the monarch) and Aboriginal peoples have been a cornerstone of the historical relationship between Aboriginal and non-aboriginal societies for centuries. Treaties are not a European invention. Aboriginal nations had treaty relationships among themselves well before the arrival of Europeans. Treaties were seen as sacred, nation to nation agreements that were cemented and periodically renewed through ceremonies and the ex - change of gifts. Preserved orally, they were also often memorialized in drawings or through such means as wampum belts (seashells sewn into patterns). Due to their own legal traditions of treaty-making, Aboriginal nations had little difficulty extending the treaty relationship to include European nations. One of the first treaties with E u r o - peans was concluded by the Haudenosaunee (Iroquois Confederacy) with the Dutch in 1664 in what is now New York state. It was memorialized in the Two Row Wampum Belt, with each row representing a vessel traveling down a river. This symbolizes the pledge of the Haudenosaunee and Dutch to maintain peaceful relations and not to interfere with the laws and ways of life of the other. The Two Row Wampum was later reaffirmed with the British and enlarg e d through a series of Covenant Chain treaties with other nations. As a general rule, Aboriginal peoples understood the treaty to be the consensus arrived at orally as a result of Leading Cases The Queen v. Sikyea (1964) The Queen v. Taylor and Williams (1981) Simon v. The Queen (1987) The Queen v. Sioui (1990) The Queen v. Horseman (1990) Badger v. The Queen (1996) Marshall v. The Queen (1999) 1

2 Two Row Wampum Belt The Two Row Wampum symbolizes the spirit of intent of the 1664 treaty between the Iroquois Confederacy and the Dutch. The alternate rows signify two Nations respectful of each other s independence, but united in friendship. the often lengthy and involved negotiations between them. Europeans, howe v e r, preferred to rely on the written memorial of the treaty that was oft e n only drawn up later. Thus, for the Europeans, their written text was the "treaty". Increasingly, the Supreme Court of Canada has come to disagree with this ethnocentric view. It is beyond dispute that the Aboriginal nations were independent actors in international law at the time of the arrival of Europeans. Although unwilling to recognize Aboriginal nations as equal to themselves, European countries were none-the-less willing to enter into treaty relationships with them. In the 1990 Sioui Case the Supreme Court noted that the European powers acknowledged that Aboriginal nations had "sufficient autonomy for the valid creation of solemn agreements which were called treaties regardless of the strict meaning given to that word then and now by international law." M o r e o v e r, the Court continued, the Europeans maintained relations with their Aboriginal treaty partners "very close to those maintained between sovereign nations". To date Aboriginal treaties are not recognized by the government of Canada as being international treaties. In the 1987 Simon Case the Supreme Court observed that treaties are in their own category: "An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law." (the term sui generis means that treaties are in their own category and will therefore be interpreted in accordance with legal principles that are drawn from both Euro-Canadian and Aboriginal legal philosophies). "An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law." This statement by Canada s Supreme Court in the Simon Case should not be taken to mean that Aboriginal nations do not have an international legal identity or that Canada s treaties with Aboriginal nations do not have international aspects or international effects. These are issues that have been the subject of study and discussion under the auspices of the United Nations and which remain to be determined under international law. Treaties are constitutional agreements that reflect the fact that Aboriginal nations and the Crown are in an ongoing and permanent rela- 2

3 tionship. Having been signed by the Crown on behalf of the government of Great Britain or (after 1867) of Canada, their solemn, nation-tonation character obliges governments to conform to high standards of behaviour in interpreting and implementing them. In The Queen v. Taylor and Wi l l i a m s, the Ontario Court of Appeal put it this way: "In approaching the terms of a treaty the honour of the Crown is always involved and no appearance of sharp dealing should be countenanced." Avoiding sharp dealing and maintaining Crown honour means that treaties should not be interpreted solely from the perspective of Euro- Canadian law, ignoring the philosophies, legal systems and oral histories of Aboriginal nations. I n practice this means that the written document cannot always be relied upon as an adequate memorial of the true agreement. Thus, the circumstances surrounding the making of the treaty including the historical contex t and the record of the verbal exchanges between the parties that led to the agreement between them must also be studied. "I don t think that we should encourage Indians to feel that their treaties should last forever within Canada." O v e rview of Treaties The government of Canada currently recognizes approximately 70 treaties, some of which date back to the 1600s. It does not recognize the Two Row Wampum. There have been five main historical periods during which Britain and Canada entered into treaties with Aboriginal nations. The treaties made during these periods are often referred to as follows: (1) The "peace and friendship treaties", most of which were concluded in the 18th century in the Maritime provinces and Quebec; (2) the "Upper Canada treaties" made between 1763 and 1923 in what is now southern Ontario; (3) the Vancouver Island "Douglas treaties" signed between 1850 and 1854; (4) the "numbered treaties" made between 1871 and 1921 in northern O n t a r i o, the prairies, northeastern British Columbia and corners of the Yu kon and North-west Te r r i t o r i e s ; (5) "modern treaties" concluded a fter the 1973 Supreme Court decision in Calder v. British Columbia (discussed in CRRF Facts About... Leading Aboriginal Rights Cases). Treaty negotiations continue in those parts of Treaties made during the 18th, 19th and 20th centuries Peace and friendship treaty (Maritimes and Québec) Upper Canada treaties (southern Ontario) Douglas treaties (Vancouver Island) Numbered treaties (northern Ontario, the prairies northeastern British Columbia, Yukon and Northwest Territories) Modern treaties 3

4 Canada where treaties may not have been made in the past. Treaties were made for a variety of reasons such as establishing peaceful relations, forging military or diplomatic alliances or formalizing trading relationships. With the exception of the "peace and friendship" treaties, the treaty documents refer to surrenders or cessions to the Crown by Aboriginal peoples of their traditional lands. Many Aboriginal treaty nations dispute that this is what their ancestors intended, and maintain that the real meaning of the agreement as shown by their oral history was only that they would share the land with the incoming settlers. They do not agree that their ancestors necessarily forfeited their sovereignty as nations by entering into a treaty relationship with the Crown. To date, neither Canada s courts nor international tribunals have ruled on these issues directly. Canada does not recognize any treaties with the Métis or Inuit peoples. However, the nation to nation negotiations between Canada and the Métis Nation that led to the Métis land settlement scheme in section 31 of the "It must be remembered that a treaty is a solemn agreement between the Crown and the Indians, an agreement the nature of which is sacred." Manitoba Act 1870 may mean that section 31 is the memorial of part of a Métis treaty that remains to be honoured. In the same vein, a 1769 agreement between the Labrador Inuit and the Moravian Mission has been argued, unsuccessfully so far, to be an existing Inuit treaty. Historical Context In CRRF Facts About... Aboriginal Rights Cases it was explained that for a long period of time aft e r Confederation the constitutional rights of Aboriginal peoples were overlooked by governments. During this time, treaties were either disregarded or were interpreted narrowly in accordance with legal doctrines foreign to traditional Aboriginal ways of thinking. For example, during the negotiation of the numbered treaties, Canada passed the first version of the Indian Act in One of its goals, discussed in CRRF Facts About... the Indian Act, was to undermine First Nation cultures, languages and customs. Under the Indian Act many First Nations were relocated or even disbanded and amalgamated into new entities in 4

5 complete disregard of their status as treaty nations. Existing legal doctrines did not accommodate the treaty relationship. For example, in 1917 Pa r l i a m e n t passed the M i g - ratory Birds Convention Act, closing the hunting season on several species of birds upon which many Aboriginal peoples depended for food. L a t e r, Canada signed Treaty 11 in 1921 with Aboriginal peoples in parts of the Northwest Te r r i - tories and the Yukon, promising them the "right to pursue their usual vocations of hunting, trapping and fishing." In 1962 Michael Sikyea shot a duck within the Treaty 11 area. He was charged and convicted of breaching the Migratory Birds Convention Act in the 1964 Sikyea Case under the legal doctrine that Parliament s laws may override treaty promises. I n examining the report of the treaty negotiations the Northwest Te r r i t o r i e s Court of Appeal noted that "there is nothing in this report that would indicate that the Indians were told that their right to shoot migratory birds had already been taken away from them." Although reluctant to conclude "The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement. that Canada had deliberately deceived Aboriginal peoples, the Court nonethe-less found this was a "breach of faith on the part of the Government". Not long aft e r- wards (then) Prime Minister Trudeau gave a speech in which he referred to treaties as mere "forms of contract". He concluded that "I don t think that we should encourage Indians to feel that their treaties should last forever within Canada." Earlier that year the federal government had issued the 1969 White Paper on Indian Policy in which Aboriginal peoples were told that treaties were less important than they thought they were. "A plain reading of the words used in the treaties reveals the limited and minimal promises which were included in them." Following a massive outcry by First Nations, the federal government withdrew the White Paper. By then Lloyd Barber had been appointed by the federal government to look into Aboriginal claims. In his final report in 1977 he disagreed with the Prime Minister, noting that these were "not simple issues of contractual dispute". Rather, he continued, "[t]hey are the 5

6 visible part of the much, much more complex question of the relationship between the original inhabitants of this land and the powerful cultures which moved in upon them." Contemporary Context The entrenchment of existing Aboriginal and treaty rights in the Constitution in 1982 brought the promise of a renewal of the treaty relationship between treaty nations and Canadian governments. This promise was soon tested. In 1980, James Simon, a member of the Shubenacadie First Nation in Nova Scotia was convicted after having been found hunting for moose and deer contrary to provincial hunting regulations. In his defence he cited the Crown promise in a 1752 treaty with his ancestors that they would "have free liberty of Hunting & Fishing as usual". In Simon v. The Queen, the Supreme Court upheld his treaty right and reversed the conviction. In the 1990 Sioui Case the Supreme Court noted that the European powers acknowledged that Aboriginal nations had "sufficient autonomy for the valid creation of solemn agreements which were called treaties regardless of the strict meaning given to that word then and now by international law." Although the Simon Case w a s released in 1987, it was not argued on the basis of section 35 treaty rights. Nonetheless, the conclusions reached by the Supreme Court gave strong signals of a new and more open approach to treaties. First, it was made clear that treaties between the Crown and Aboriginal peoples were s u i g e n e r i s. They formed a unique branch of Canadian law and would not be held captive to legal doctrines developed without Aboriginal particip a t i o n. In the Court s view neither contract law not international legal principles could explain the meaning and significance of the treaty r e l a t i o n s h i p. Treaties could only be assessed on their own terms a fter an ex a m i n a- tion of the historical events surrounding the agreement. Second, the Court declined to read the written text narrowly. Treaties reflect complex negotiations conducted in two or more languages. To focus 6

7 on the precise legal meaning of an English word would not necessarily respect the sense in which the agreement would naturally have been understood by the Aboriginal parties at the time. Under the circumstances the Court preferred to take "the generally accepted view that Indian treaties should be given a fair, large and liberal construction in favour of the Indians." Third, the Court refused to hold Aboriginal peoples to what it called "an impossible burden of proof." In response to the c h a rge that Mr. Simon had not clearly proved his descent from a 1752 band member, the Court stated that his present membership in the First Nation was sufficient "for otherwise no Micmac Indian would be able to establish descendancy. The Micmacs did not keep written records. Micmac traditions are largely oral in nature." In the 1990 Sioui Case t h e Supreme Court turned its attention to the unique history of nation to nation agreements between Aboriginal and European nations in North America. Four members of the Nation "I do not think that an interpretation of an event that turns a positive Mi kmaq trade demand into a negative Mi kmaq covenant is consistent with the honour and integrity of the Crown." Huronne-Wendat in Québec had been convicted of cutting down trees in a provincial park in the exercise of their customs and religion. They defended themselves by referring to a 1760 treaty that promised them "the free exercise of their Religion, their Customs, and Liberty of trading with the English ". The Supreme Court agreed with them and reversed their convictions. The Crown argued that the document was a mere safe conduct pass. It was short, was not signed by the Hurons, and had been issued by British General Murray under wartime conditions. However, it also had the provision noted above that referred to broader issues. In the face of this a m b i g u i t y, the Court ex a m i n e d the historical context, including the British policy of securing alliances with Aboriginal nations, and concluded that it was indeed the memorial of a treaty between the British Crown and the Nation Huronne- Wendat. The Court refused to be bound by the form of the document prepared by the Crown. Instead, it focused on what actually happened in 1760 by putting 7

8 itself in the place of the Huron chiefs "to ask whether it was reasonable for them to believe, in light of the circumstances and the position occupied by the party they were dealing with d i r e c t l y, that they had before them a person capable of binding the British Crown by Treaty." Under the circumstances, "the intention to create solemn obligations, the presence of mutually binding obligations and a certain measure of solemnity" meant that a treaty had indeed been concluded. The treaty was not extinguished by France in purporting to speak for its Huron allies when it surrendered in The Huron Nation was an independent actor that had entered into a binding agreement with the British Crown. The Court concluded France could not legitimately speak on behalf of the Hurons. "It must be remembered that a treaty is a solemn agreement between the Crown and the Indians, an agreement the nature of which is sacred." "In approaching the terms of a treaty the honour of the Crown is always involved and no appearance of sharp dealing should be countenanced." Despite this pronouncement, that same year the Supreme Court ruled in The Queen v. Horseman that treaty rights could, in fact, be unilaterally modified or extinguished by the Crown. In 1984 Bert Horseman was convicted of selling a bear hide contrary to Alberta hunting regulations that prohibited commercial hunting. In his defence Horseman argued that in Treaty 8 the Crown had promised his Cree ancestors that they "shall have the right to pursue their usual vocations of hunting, trapping and fishing ". All the Supreme Court judges agreed that the treaty right originally included commercial hunting. Nonetheless, a majority of the Court upheld the conviction because federal legislation, the Constitution Act, 1930, had overridden the treaty. Parliament passed this legislation to i m p l e m e n t t h e Natural Resources Transfer Agreement ( N RTA) through w h i c h Canada gave control of federal land and resources in the prairies to the three prairie provinces. However, the federal government also gave the provinces the power to regulate commercial hunting. This extinguished the commercial aspect of the treaty right. The treaty signatory First Nations were not present at the federal/ provincial negotiations nor did they 8

9 consent to this new arrangement. While uncomfortable with this fact, the majority of the Supreme Court noted that "[t]he right of the federal government to act unilaterally in that manner is unquestioned." The Supreme Court returned to the issue of Parliament s power to extinguish or infringe treaty rights in the 1995 Badger Case. T h r e e C r e e h u n t e r s were convicted of illegal hunting under Alberta hunting regulations. They asserted the same Treaty 8 hunting right put forward in the earlier Horseman Case. This time the Court made it clear that since the 1982 entrenchment of treaty rights in the Constitution governments could no longer act unilaterally to ex t i n g u i s h or infringe treaty rights. This could only be done by adhering to the strict justification standard set out in the 1990 S p a r r o w Case (discussed in C R R F Facts About... Leading Aboriginal Rights Cases). In fact, the Court noted that "it is equally if not more important to justify prima facie infringements of treaty rights" because "rights granted "the generally accepted view that Indian treaties should be given a fair, large and liberal construction in favour of the Indians." to Indians by treaties usually form an integral part of the consideration for the surrender of their lands." Thus, after 1982 the Court will not tolerate the government unilateralism permissible prior to 1982 when the M i g - ratory Birds Convention Act was passed, or when the NRTA was implemented by federal legislation. Badger is also significant because of the Court s clear acknowledgement that the treaty text prepared by the Crown does not reflect the entire agreement between the Crown and Aboriginal peoples. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement. The main legal issue in this case was whether the three hunters would have known that the land on which they were hunting was off-limits under the treaty. To address this issue the Court looke d at the oral history of the Treaty 8 negotiations to discover what the treaty signatories understood in 1899 about the areas that were available for hunting. 9

10 In the 1999 Marshall Case t h e Supreme Court did not have the benefit of an extensive Aboriginal oral history to help it make sense of a 1760 t r e a t y. Instead, it looked at the historical record to find out what motivated the parties to enter into the agreement in the first place. The treaty was then interpreted so as to carry out the common intention of the Crown and the Mi kmaq Nation as revealed by the circumstances surrounding the making of the agreement. In 1996 Donald Marshall was convicted for fishing and selling eels in contravention of the federal Fisheries Act. He a rgued that a treaty signed by his ancestors and the British Crown allowed him to fish without interference. A majority of the Court agreed and overturned his conviction because the Crown infringement of his section 35 treaty rights was not justifiable under the standard set out in the Sparrow and Badger cases. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement. to trade only with the British at "such Truck houses as shall be appointed or Established by His Majesty s Governor ". (truck houses were trading posts) However, after examining the historical record, the Court had little difficulty concluding that the text prepared in English by the Crown did not reflect the entire agreement between the British and the Mi kmaq. Thus, the treaty was interpreted as containing an implied right to hunt and fish, otherwise the Mi kmaq, whose economy was based to a considerable extent on wildlife harvesting in 1760, would have had nothing to trade at the British truck houses that they had agreed to deal with. Such a result made no sense from either a Mi kmaq or a Crown viewpoint.. "It cannot be supposed that the Mi kmaq raised the subject of trade concessions for the purpose of subjecting themselves to a trade restriction." U n l i ke the treaties discussed earlier the 1760 treaty text did not have an explicit Crown promise regarding hunting and fishing. Instead it had a clause in which the Mi kmaq agreed As a result of Marshall and the preceding cases it seems clear that the Supreme Court will not allow itself to be boxed in by the form of a document or by the narrow or technical nature 10

11 of the words contained in it, nor will it be confined to existing legal doctrines drawn from areas of law far removed from the conditions in North America that led to the making of treaties between the Crown and Aboriginal nations. Instead, it will search for the common intention of the parties and will examine every available source of information ranging from Aboriginal oral history to academic literature. The Court will not hesitate to read a term into the agreement if this is the only way to make the historical bargain make sense. Most importantly, by its insistence on the honour of the Crown the Supreme Court is also willing to hold the Crown to the highest of ethical standards. "I do not think that an interpretation of an event that turns a positive Mi kmaq trade demand into a negative Mi kmaq covenant is consistent with the honour and integrity of the Crown." 11

12 Useful Sources of Further Information We b s i t e s Bill Henderson s Virtual Law Office: w w w. b l o o r s t re e t. c o m / l a w o ff. h t m Indian Claims Commission: w w w. i n d i a n c l a i m s. c a Indian and Northern Affairs Canada: w w w. i n a c. g c. c a Indigenous Bar Association: w w w. i n d i g e n o u s b a r. c a Supreme Court of Canada: w w w. d ro i t. u m o n t re a l. c a Native Links: w w w. j o h n c o. c o m Printed Materials Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West (Toronto: Belfords, Clarke and Co., 1880, reprinted 1991 by Fifth House Publishers, Saskatoon) Bradford Morse, ed., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (Ottawa: Carleton University Press, 1989) Royal Commission on Aboriginal Peoples, Restructuring the Relationship, Part One Volume 2 of the Report of the Royal Commission on Aboriginal Peoples (Ottawa: Supply and Services Canada, 1996) 12