AGREEING TO SHARE: TREATY 3, HISTORY & THE COURTS.

• Author: Gunn, Kate
• Position: Canada

INTRODUCTION

In 2014, the Supreme Court of Canada opened its landmark judgment in Grassy Narrows with the statement that, upon entering into Treaty 3 in 1873, the Ojibway "yielded ownership of their territory" to the Government of the Dominion of Canada in exchange for reserve lands, payments, and certain limited rights on nonreserve lands in 1873. (1) The remainder of the decision addresses the question of whether the present-day provincial government is authorized to limit the Treaty 3 harvesting right. There is no mention of the fact that the SCC's opening statement is contrary to the Ojibway understanding that the treaty was an agreement for both parties to share in and benefit from the lands, or that that understanding had been repeatedly and unequivocally confirmed by the trial judge three years earlier in the same case. (2)

Grassy Narrows is emblematic of a pattern that has persisted between Indigenous peoples and the Crown for 140 years. Since the conclusion of Treaty 3, the Ojibway signatories have maintained that they agreed to share their lands and resources with Europeans, not surrender control of those lands to the Crown. By contrast, the Crown has proceeded to use and develop lands in Treaty 3 on the basis that by entering into treaty, the Ojibway relinquished all authority to make decisions about and share in benefits from those lands to the Crown.

This paper explores the extent to which modern Canadian courts support the Crowns unilateral interpretation of the treaty over the objections of the Indigenous treaty partners. (3) Part I sets out the background and context for the negotiation of Treaty 3 and the Ojibway understanding of decision-making authority over treaty lands. Part II describes the development of treaty interpretation principles in Canadian law, including the use of historical evidence in the courtroom. Part III examines the recent application of these principles to the interpretation of Treaty 3.1 conclude that while there is strong support in the historical record for the Ojibway understanding of the treaty, the courts' approach to treaty interpretation ultimately upholds the colonial status quo. As a result, there remains a profound disconnect between Indigenous peoples' understanding of the treaty and their ability to obtain meaningful outcomes through the courts.

1. TREATY 3 FROM A HISTORICAL PERSPECTIVE

   The Crown's refusal to recognize the Ojibway understanding of Treaty 3 is striking in light of the foundational role played by Treaty 3 and the other numbered treaties in the formation of Canada as a country. The numbered treaties, negotiated between 1871 and 1921, collectively establish the terms by which Indigenous peoples and the Crown agreed that lands and resources in large portions of what is now western Canada would be shared, used and controlled. They remain essential elements of Canada's legal and constitutional structure and to its legitimacy as a nation. (4) The significance of the treaties today is evidenced by section 35(1) of the Charter, which provides constitutional protection to Indigenous peoples' treaty rights. (5) However, the Indigenous parties' position that the treaties were agreements to share and benefit from the lands remains largely unacknowledged by the Crown and by Canadian courts. This section will explore the background and context which resulted in the agreement known as Treaty 3 between the Crown and the Lake of the Woods Ojibway, and the Ojibway perspective on what was agreed to in terms of decision-making authority over treaty lands.

   1. TREATY 3 IN CONTEXT

      Today, the Ojibway people of Treaty 3 understand their rights and obligations in relation to land based on an established system of governance which long predates the arrival of Europeans. Prior to the assertion of colonial authority Indigenous peoples throughout North America maintained legal orders which regulated their members' activities and relations, including systems for managing resources and controlling use of and access to lands. (6) For the Ojibway in what is now Treaty 3 territory, this governance structure focused on consensus-based decision-making processes which determined how their lands and resources would be used. (7)

      The Ojibway perspective on Treaty 3 also has roots in a long history of treaty making with other Indigenous nations. For centuries prior to colonization, Indigenous peoples throughout what is now Canada engaged in treaty making with neighbouring nations in order to secure access to essential resources and maintain alliances which were critical for their survival and wellbeing. (8) Like other Indigenous peoples, the Ojibway of the Lake of the Woods who would later negotiate Treaty 3, had already developed understandings with other Indigenous nations that were aimed at establishing and maintaining relationships of reciprocity and respect. (9) These nation-to-nation agreements were not negotiated solely for political expediency. (10) Rather, they were based on the parties' understanding of their distinct obligations to the land and to other forms of life. (11) As George Erasmus and Joe Sanders explain in reference to pre-colonial agreements generally:

      When our people treatied with another nation, each nation's interest, its pride, and its word was at stake. The wotd of the agreement, the treaty, was given in a very sacred way. And that was not easily broken. (12) In addition, the Ojibway perspective on Treaty 3 flows from the understandings and agreements between Indigenous peoples and the Crown prior to the negotiation of the numbered treaties. For many historians and legal scholars, the key starting point for this contextual analysis is the British Crowns Royal Proclamation of 1763. (13) The Proclamation set out the British Crown's policy in relation to Indigenous lands, including the Crown's obligation to negotiate treaties with Indigenous peoples prior to acquiting the right to access their territories. (14) As a result, it bound the Crown and its agents to follow certain rules, including the requirement to negotiate agreements with Indigenous peoples before asserting colonial authority over lands and resources. (15) According to Sharon Venne, the Proclamation "enshrined the protection of Indigenous lands by the British Crown, and a process of seeking Indigenous consent to European settlement through treaty-making" and confirmed that "Indigenous nations had an inalienable right to their lands." (16) This recognition set the stage for the Crown's approach to treaty-making with Indigenous peoples, which persisted throughout the negotiation of the numbered treaties. (17)

      On a less optimistic note, the Proclamation also foreshadowed the Crown's tendency in subsequent treaty negotiations to claim to be simultaneously protecting and extinguishing the rights of Indigenous peoples. The Proclamation is premised on the Crown's recognition of Indigenous peoples as distinct, politically organized societies with whom treaties were to be negotiated prior to settlement. (18) At the same time, however, the Crown inserted language in the Proclamation that was contrary to Indigenous peoples' understandings of their relationship to the Crown and to their lands. (19) As John Borrows argues, the Proclamation "uncomfortably straddled the contradictory aspirations of the Crown and First Nations when its wording recognized Aboriginal rights to land by outlining a policy that was designed to extinguish these rights." (20)

      The Proclamation was initially a unilateral declaration which reflected only the perspective and obligations of the Crown and its agents. This changed in 1764 after a conference attended by Crown representatives and over 24 Indigenous nations, which resulted in an agreement known as the Treaty of Niagara. (21) The treaty included certain aspects of the Proclamation, including the Crown's guarantee that Indigenous peoples were entitled to use and possess lands not ceded by treaty, but at the same time rejected the assertion of colonial authority over Indigenous territories. (22) These terms were recorded through a Covenant Chain and wampum belts which reflected the Indigenous participants' understanding of the agreement. (23) Unlike the Proclamation, the Treaty of Niagara demonstrated "the foundation-building principles of peace, friendship, and respect agreed to between the parties." (24)

      The Ojibway thus approached the eventual negotiation of Treaty 3 in the context of a longstanding tradition of treaty making and with a robust governance system which included distinct processes for determining how lands and resources would be shared. They also negotiated Treaty 3 against the backdrop of the Royal Proclamation, which served to both recognize and undermine Indigenous peoples' rights to land relative to the Crown, and the Treaty of Niagara, which reflected the Indigenous parties' understanding that they would remain self-determining, independent nations in their dealings with the Crown. These factors contributed to the Ojibway understanding that Treaty 3 was intended as an agreement for the parties to mutually share and use the treaty lands, not a surrender of jurisdictional authority to the Crown.

   2. THE TREATY AGREEMENT

      The treaty parties' priorities at the time of the treaty negotiations also provide critical insight into why the Ojibway maintain that they did not surrender control of their lands upon entering into Treaty 3. At the time negotiations commenced, the Ojibway economy was based around trapping and fishing, and although these pursuits had declined somewhat since the 1870s, the Ojibway were not subject to the drastic loss of livelihood as had happened to Indigenous peoples further west with the extermination of the buffalo. (25) Further, because of the limited agricultural capacity of their lands, the Ojibway were not overly concerned with the possibility of a significant influx of European settlers in their territory. (26) As such, they...