Treaties with First Nations People in Canada

The need to find a better and more effective way of improving the relationships between Canada and its First Nations people is evident in so many ways currently in public life in this country: through the truth and reconciliation process; in dealing with pipeline issues and, more generally, access over unceded territories and reserve lands; in negotiating more effectively land claims settlements; in resolving the safety concerns around murdered and missing aboriginal women and girls; in working through difficult issues around health care, clean drinking water and safe and adequate housing, to name a few. These issues must be examined and resolved in the context of the treaty arrangements between the Crown and First Nations which form the underlying legal bases for the relationships between Indigenous people and non-indigenous people.

Historical context of treaties in Canada

Note: In referring to the Crown, I am referring to the Government, primarily of Canada, and the provinces. The Crown is the head of state in Canada. Also, I have used the three terms “Indigenous”, “Aboriginal” and “First Nations” depending on the context. The term “Indian” is a misnomer and is included only because of its inclusion in the Canadian Constitution and the federal Indian Act.

• Treaties are legally binding agreements that set out the rights, responsibilities and relationships of First Nations and the federal and provincial governments. Historically, they have dealt with: payments of goods and cash; the cession of First Nations’ title to certain lands; creation of reserves; protection of hunting, fishing and harvesting rights; promises of schools, clothing, farming equipment and supplies.
• Starting in 1701, treaties were entered into between the Crown and First Nations people to define the rights of Aboriginal people and non-Aboriginal people and their governments to use the lands that Aboriginal people traditionally occupied.
• By Royal Proclamation in 1763, the British Crown confirmed the original occupancy of Indigenous peoples, prohibited the purchase of First Nations Lands by any party other than the Crown, provided that newcomers could not settle the land until the Crown had acquired it from First Nations under treaties, and set out the process for entering into treaties thereafter.
• Since 1973, the federal government has recognized two broad classes of land claims as part of the treaty process. Comprehensive claims recognize continuing Aboriginal rights to land and natural resources, and deal with areas of Canada where Aboriginal rights have not been addressed by treaties. Specific claims arise when there is an unfulfilled obligation of a treaty or another agreement or a breach of statutory responsibilities by the Crown. Aboriginal rights are rights that Aboriginal peoples hold as a result of their ancestors’ longstanding use and occupancy of the land, including the rights to hunt, trap and fish on ancestral lands.
• In the Canadian Constitution, S. 91(24) of the Constitution Act, 1867 (formerly the British North America Act) confers on the federal Parliament the power to make laws in relation to “Indians and lands reserved for Indians”. S. 35 of the Constitution Act, 1982 states that existing aboriginal and treaty rights of the Aboriginal peoples of Canada are affirmed. S. 25 of the Charter of Rights and Freedoms states that the Charter is not to derogate from any aboriginal, treaty or other rights and freedoms that pertain to the Aboriginal peoples of Canada.
• The primary legislation of the Federal government under its authority in S. 91(24) of the Constitution Act, 1867 is the Indian Act, legislation which is long overdue for reform and re-naming.
• The lands along the north shore of Lake Ontario from Etobicoke Creek to Hamilton are the subject of the Head of the Lake purchase by the Crown in 1806 and the Williams Treaties of 1923.

The current context

• In Ontario, there are 46 treaties in effect. In Canada, there are 15 comprehensive land claims settlements.
• Governments recognize that treaties continue to be key elements in the relationships between First Nations peoples and the Crown, to be applied in contemporary terms and to provide for a shared future based on trust and respect, including negotiation with treaty First Nations to put self-government in place.
• While treaties were meant to establish respectful partnerships and mutual benefits, Indigenous peoples have been subject to colonial policies and practises which exploit, assimilate and, in some cases, eradicate them. The process of truth and reconciliation includes the need to recognize treaty issues with respect to the land and its uses, and to build and rebuild treaty and other relationships between First Nations and non-First Nations peoples based on mutual trust and respect. Unfortunately, there is a long way to go in building and rebuilding these relationships.

The truth and reconciliation process and the resolution of the issues noted above must be framed within the context of existing and future treaty rights and ressponsibilities.

The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.