This week, we focus on Indigenous leaders in Canada at the time of Confederation. As we get closer to #Canada150 we acknowledge the leaders and trailblazers from 150 years ago that shaped the country in which we live. However, we must acknowledge that Canada’s Confederation did not include important Indigenous leaders.
Indigenous groups were not invited to be a part of the negotiations prior to 1867. They were not consulted and could not provide input or feedback on what how to best form the British North America Act.1 Even those who signed treaties may not have appreciated the future implications. As a result the BNA Act was not a nation-to-nation agreement, but a unilateral declaration that excluded important members of Canadian society.
The BNA Act was intended to be Canada’s founding constitutional document but it discounted the input from a large portion of its own society; a population that inhabited this land before the British and Canadian governments. So therefore we must ask: can this constitutional document legitimately be considered Canada’s founding document? And if not, when did our founders truly come together to constitute Canada?
Over 100 years before the constitution was enacted, the Royal Proclamation was issued. Unlike the BNA Act the proclamation consulted and included many different Indigenous communities and peoples. It is a document that enunciates principles of consent and respect: two important notions that are arguably absent in Aboriginal law today.
The Royal Proclamation recognizes and affirms aboriginal title and rights; forbidding settlers from claiming aboriginal lands until it was bought by the Crown. This provision, among many others, reinforced aboriginal self-determination.2 These principles are technically present in Canadian law; yet Aboriginal peoples must still prove their rights in Canadian courts before they can exercise those rights.3
By the time of Confederation, many Indigenous groups had entered into treaties with European authorities, surrendering their lands in exchange for a variety of benefits (trading rights, reserves, payments, police protection, etc.).4 Confederation sealed their fate and gave the federal government complete control over Canada’s Indigenous peoples and their lands.5
In contrast to this colonial history, the Royal Proclamation not only involved Indigenous peoples, but received ratification from many nations with the Treaty of Niagara shortly after it came into force.6
Historian Rick Hill said with respect to the Treaty of Niagara, “the 1764 Treaty was an important turning point in relationships between the Indigenous Nations that participated as it was a way of renewing their treaty relationship[s] with each other, and refreshing the pledges made with the ancient Dish With One Spoon Treaty whereby the Indigenous Nations agreed to share the bounty provide[d] by the Mother Earth.”7
This optimism from 1764 was short lived. Canada reneged on its promises from 1763 and took up Indigenous lands; tearing people and children away from their traditional homes and preventing them from meaningfully exercising their rights.
It is important that everyone asks, “what are we celebrating with #Canada150?” Shouldn’t we be celebrating an anniversary of which all Canadians should be proud? Perhaps it would be more appropriate to celebrate #Canada254. That way, everyone in Canada, including the original inhabitants of the land, would feel they truly have something to celebrate.
2Anthony J. Hall and Gretchen Albers, The Canadian Encylopedia, (2006) sub verbo “Royal Proclamation of 1763”, online: <www.thecanadianencyclopedia.ca/en/article/royal-proclamation-of-1763/>.
3See: R v Sparrow,  1 SCR 1075, 70 DLR (4th) 385; R v Van Der Peet,  2 SCR 507, R v Sappier; R v Gray, 2006 SCC 54,  2 SCR 686, R v Powley, 2003 SCC 43,  2 SCR 207. These cases affirm the existence of various Aboriginal rights and set out the appropriate tests. These rights, though they may be affirmed, must still be proven before the courts.
4Indigenous and Northern Affairs Canada, “Treaties with Aboriginal people in Canada”, (Ottawa: INAC, 15 September 2010), online: <www.aadnc-aandc.gc.ca/eng/1100100032291/1100100032292>.
5BNA Act, supra note 1, s 91(24).
6Nathan Tidridge, The Queen at the Council Fire: The Treaty of Niagara, Reconciliation and the Dignified Crown in Canada (Toronto: Dundurn Press, 2015).
7Marci Becking, “First Nations Commemorate 250th Treaty of Niagara Anniversary with Two-Day Event”, Anishinabek News (31 July 2014), online: <anishinabeknews.ca/2014/07/31/first-nations-commemorate-250th-treaty-of-niagara-anniversary-with-two-day-event/>.