On the Fulfillment of Treaties

• Pages: 51-81
• Author: Bryan Birtles

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 

On the Fulfillment of Treaties

e fulfillment of treaties between the Crown and Indigenous Nations

in Canada involves the invocation of a variety of related doctrines to

test whether what was agreed upon has been delivered by each side.

In general — and especially in regard to the numbered treaties of the

Canadian West — the fulfillment of the Indigenous side of the bargain

can be presumed. In Mikisew Cree First Nation v Canada (Minister of Herit-

age), the Supreme Court of Canada (SCC) gave an indication of why

Indigenous adherence to Treaty No.  can be presumed: the territory

controlled by Indigenous Nations in  when the treaty was signed

was given up and has never been returned. e SCC wrote:

Made in , the First Nations who lived in the area surrendered

to the Crown , square kilometres of what is now northern

Alberta, northeastern British Columbia, northwestern Saskatch-

ewan and the southern portion of the Northwest Territories. Some

idea of the size of this surrender is given by the fact that it dwarfs

France (, square kilometres), exceeds the size of Manitoba

(, square kilometres), Saskatchewan (, square kilo-

metres) and Alberta (, square kilometres) and approaches the

size of British Columbia (, square kilometres). In exchange

for this surrender, the First Nations were promised reserves and some

other benefits including, most importantly to them, the following

rights of hunting, trapping, and fishing.

A TREATISE ON TREATIES

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Fulfillment by Indigenous Nations in other types of treaties is

similarly presumed, on the basis of the power imbalance that existed

and continues to exist between the treaty partners. e Indigenous

signatories, the SCC appears to believe, have had no choice but to fulfill

their side of the bargain, whereas it has long been within the power

of the Crown to renege. is appears to be true even where the power

balance between the treaty parties has shifted or wholly reversed. For

example, in R v Marshall, the fact that the Mi’kmaq were “a consider-

able fighting force” in  when the treaty at issue was signed and

“not people to be trifled with” meant that the main benefit the British

gained via the treaty was peace with the Mi’kmaq, who had previously

been allied with the French. e Court left open the idea that the

treaty could have been terminated by hostilities subsequent to a peace

treaty, but it appears simply to presume that the peace arrived at via

the  treaty subsisted. is may simply be so in the absence of evi-

dence to the contrary, or it may stem from the SCC’s general presump-

tion that Crown-Indigenous treaties persist forever, coupled with the

contemporary power imbalance between the Crown and the Mi’kmaq,

which has meant for more than a century that the Mi’kmaq have had

little choice but to uphold their commitment to peace. Whatever the

source of the presumption, there is an extremely high bar — perhaps

an impossible one — for the Crown to argue that their Indigenous

treaty partners have failed to fulfill the terms of the treaty, especially

in relation to any land cession.

For that reason, the questions of fulfillment explored in this chap-

ter focus almost entirely on Crown conduct.

The Honour of the Crown

e honour of the Crown is the most important doctrine within the

realm of treaty fulfillment. It is a broad doctrine that inheres to all

aspects of the Crown-Indigenous relationship and, unlike related doc-

trines such as the fiduciary duty, has almost no limit to its applica-

tion. However, the practical eect of this broad application is minimal:

breaches of the honour of the Crown — absent breaches of related doc-

trines — have yet to give rise to relief beyond declaratory relief and have