Tansi Nîtôtemtik,
Photo retrieved from: <https://twitter.com/arnelltf/status/1098622107108311041>
As is so often the case, the end of the school year has crept up on the ReconciliAction YEG team. With this being our last week of content, each contributor will share their reflections on what we covered this year and leave readers with some parting words. Today’s post is written by contributor Chris Wiebe. His comments begin below:
The biggest theme that stood out to me this year is the illegitimacy of Canada’s claim of sovereignty, and how Canada is, and should, respond in light of that reality.
In October, I wrote a post about the 1888 Privy Council decision St. Catharine’s Milling.[1] In that case, Edward Blake, founder of Blake, Cassels & Graydon LLP (“Blakes”) and former Premier of Ontario, successfully argued that Indigenous peoples have no right to the land other than to use and occupy it subject to “the good will of the sovereign.”[2] This became the leading case on Indigenous land rights for nearly a century. The decision was based on the Royal Proclamation of 1763, which, among other things, unilaterally asserted British sovereignty over British colonies in North America.[3] What was this unilateral assertion based on? The Supreme Court has acknowledged that “Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.”[4] It is unclear to me what the unilateral assertion of sovereignty was based on, other than white supremacy.
First Nations later consented to this unilateral assertion of sovereignty through the signing of treaties. However, the treaties themselves were signed under the pressure of political and social influences such as the Hudson’s Bay Company’s over-hunting of bison, the introduction of European-sourced diseases, and violence committed against Indigenous peoples by imperial figures like General Edward Cornwallis. Arguably, these pressures amounted to duress.
At common law, if a contract is signed under duress, then it is legally unenforceable.[5] Despite this feature of the common law, Indigenous treaty signers have not enjoyed its protection. It is, of course, true that the Royal Proclamation of 1763 and treaties between First Nations and Britain both included rights guarantees for First Nations. However, due to the power imbalance between parties, these rights were frequently not honoured, were seldom an equitable bargain for the land interests being sacrificed, and were sometimes a way to assimilate Indigenous peoples into a European agricultural economy.
In light of this, it is hard to deny that Canada’s current claim of sovereignty over treaty territory is based on illegitimate unilateral assertions and contracts obtained under duress.
However, the illegitimate means by which Canada claimed sovereignty does not mean that First Nations necessarily want treaties to be unenforceable. As the Indian Chiefs of Alberta wrote in their famous rebuke to the 1969 White Paper, “[w]hat Indians asked that Treaties be brought to an end? What group of Indians asked that aboriginal rights not be recognized?”[6] It is clear that no matter how illegitimate its origins, the legal relationship between Canada and Indigenous peoples is a legally binding one that must be respected by both parties. John Borrows, in his book Canada’s Indigenous Constitution, documented Treaty 6 Elder Jacob Bill’s beautiful description of the treaties as no less than sacred:
It was the will of the Creator that the White man would come to live with us, among us, to share our lives together with him, and also both of us collectively benefit from the bounty of Mother Earth for all time to come...Indian and white, we both gave something special, something to keep, something to reverence, just like the treaty, both Indian and white beneficiaries, we were given a gift from the Creator.[7]
But does Canada feel similarly? Do we act as though the treaties were a gift? Do we benefit from them equitably alongside Indigenous peoples?
There are signs of incremental progress towards a more equitable relationship. Some recent examples include modern interpretations of the duty to consult and accommodate and cession of some child welfare jurisdiction to First Nations.[8] However, Canada seems to maintain a begrudging and reluctant attitude towards its treaty obligations and towards fully acknowledging the illegitimate origins of its sovereignty. Courts have been reluctant to impose a duty on the Crown to acquire consent for the infringement of treaty rights, while governments have been resistant to providing funding for Indigenous child welfare programs and have even been overtly hostile as in in the federal government’s litigation of the First Nations Child & Family Caring Society case.
I’d like to finish my time writing for ReconciliAction YEG by encouraging my fellow settlers to take Elder Jacob Bill’s words above to heart. Be grateful for the treaties, because they are the instrument by which we share this land. They are an opportunity to benefit equitably alongside our Indigenous neighbours. And if I might add to Elder Bill’s words: embrace the precariousness of Canada’s sovereignty claim over this territory, and be humble and generous in light of our shared history. Thank you for reading our posts this year.
Until next time,
Team ReconciliAction YEG
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[1] [1888] UKPC 70, [1888] 14 AC 46 (12 December 1888) [St. Catharine’s Milling].
[2] “Making History: Blakes Annual Review”, Blakes, Cassels & Graydon LLP (2006), at i, online archive: <https://web.archive.org/web/20070928132414/http://www.blakes.com/english/annualreview/BLAKES_book%26insert.pdf>; “Reception to Edward Blake, MP”, The New York Times (9 February 1894), online archive: https://timesmachine.nytimes.com/timesmachine/1894/02/09/106866976.pdf; Blake, Edward. The St. Catharine's Milling and Lumber Company V. the Queen: Argument of Mr. Blake, of Counsel for Ontario. Toronto: Press of the Budget, 1888. Arguments of Counsel for the Respondent, online archive: https://archive.org/stream/cihm_00164#page/18/mode/2up; Supra, note 1 at 5.
[3] Royal Proclamation, 1763, RSC, 1985, App. II, No. 1.
[4] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, at para 25.
[5] NAV Canada v Greater Fredericton Airport Authority Inc, 2008 NBCA 28, at 36.
[6] Indian Chiefs of Alberta, “Foundational Documents - Citizens Plus”, aboriginal policy studies, Vol 1, no 2, 2011, pp 188-281, at 190, online: <https://journals.library.ualberta.ca/aps/index.php/aps/article/view/11690/8926>.
[7] John Borrows, Canada’s Indigenous Constitution, University of Toronto Press (2010), Adobe Digital Editions, at 34-35.
[8] Bruce McIvor, “Good News for the Duty to Consult”, First Peoples Law: Essays on Canadian Law and Decolonization, 3rd Edition, at 105-107.
[9] Ibid, at 33.
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