Treaties in history and law.

Date01 October 2014
AuthorPromislow, Janna

    Historians have not generally been interested in surveying the breadth of treaty-making experience in Canada. Historiographical trends towards deeply contextual studies of Indigenous-settler relations do not make this type of project more likely. Instead, it is lawyers whose discipline demands summary descriptions of Canada's treaty-making traditions. Such overviews help contextualize a given treaty against a general understanding of treaties and suggest how one treaty history might relate to others. They also provide the backdrop for discussions of colonial policy development and Aboriginal rights. Generalized overviews about the nature of historic treaties thus provide a basic narrative against which Aboriginal rights are understood in law if not history. As a result, historical overviews of treaties should be approached critically, with awareness that their significance may echo well beyond debates of a historiographical nature.

    Canadian history is reported to encompass more than 500 historic treaties. (73) A common method for summarizing this history divides treaty making into pre- and post-1850, which sets the Robinson Treaties on the northern shores of Lake Superior and Lake Huron as the dividing marker. (74) Alternatively, the treaty timeline is divided by confederation, with the post-confederation era coinciding with the negotiation of the numbered treaties in what had been the North-Western Territory. (75) Confederation as a divider emphasizes a change in colonial authority from colonial governments to the new Dominion government. By contrast, 1850 more clearly marks the beginning of a new phase of treaty making in which treaties covered larger territories. The earlier date also signifies the completion of a shift in the subject matter of treaties from alliance to land that began with the Royal Proclamation of 1763. (76) Alliances, generally known as "peace and friendship treaties", established or reaffirmed peace through establishing mutual military support or neutrality. Such agreements often included or set the stage for trading commitments with Indigenous peoples, which were an important element of maintaining peaceful relations in at least the 18th century. (77) They also often encompassed terms of goodwill, protection, and continued access to the resources required to maintain Indigenous livelihoods, as exemplified in the 1752 and 1760-61 treaties with the Mi'kmaq, (78) at issue in the R v Simon (79) and R v Marshall (80) decisions respectively.

    The characterization of these agreements as peace and friendship treaties does not recognize that, in spite of an absence of land cession terms, the agreements addressed land and territory as matters of jurisdiction. Such agreements may have specified colonial boundaries or they may have addressed the establishment of new settlements; the British treaty with the Mi'kmaq in 1726 is an example. It included clause III: "That the Indians shall not molest any of His Majesty's Subjects or their Dependants in their Settlements already made or Lawfully to be made". (81) William Wicken reads this clause against the post-1713 Treaty of Utrecht context in which this treaty was negotiated, suggesting that the British did not have exclusive jurisdiction over Mi'kma'ki where lands were occupied by both Mi'kmaq and Acadians and that Mi'kmaq would have expected the lawful processes required by the treaty to have included their consent to new uses of their lands. (82) In Wicken's interpretation, "the intent of the treaty was to create norms of behaviour that would enable co-existence between the British and the Mi'kmaq in Nova Scotia." (83) As we will return to below, this interpretation of a so-called peace and friendship treaty has strong parallels to Indigenous interpretations of the later numbered treaties.

    In survey treatments, the post-1850 and post-confederation period is typified by treaties that dealt with large expanses of territory and many Indian nations or tribes. The written terms address land surrenders, annual presents or annuities, commitments to set aside reserves, and continued Indigenous access to Crown lands for harvesting activities until taken up for settlement. They are thus presumed to be different in scope and nature than the 18th-century peace and friendship agreements. The numbered treaties have also been further divided by some historians into the first seven "settlement treaties" (1871-77) and the later three "northern resource development" treaties (1899-1921), drawing attention to the different impetus for colonial action in these two time periods. (84)

    Between these two main types of treaties, some surveys attend to the Royal Proclamation of 1763 and treaties in Upper Canada in the late 18th and early 19th centuries. (85) Following the formalization of British treaty-making policy in the Royal Proclamation, scholars note a transitional era in which a critical shift occurs after the war of 1812 when the British need for military support from Indigenous allies waned and settler pressures for land increased. (86) Prior to 1812, the move from the peace and friendship format towards the geographically limited land cession agreements of the second period was already in progress. (87) Further changes were introduced in the later era, replacing one-time payments with annual annuities--which Miller has noted was introduced to reduce the financial burden of treaty making on the colonial treasury--and connecting treaty making to the creation of reserves. (88) Regardless of changing colonial interests, treaties continued to encompass terms reflecting Indigenous concerns to retain access to wildlife and fish harvesting areas and waterways. Similarly, the 14 Douglas Treaties on Vancouver Island from the 1850s (89) reflected many of the elements of the contemporaneous Robinson Treaties in Ontario but retained some of the character of the earlier Upper Canada surrenders in that these agreements were limited in geographic scope and involved one-time payments. (90)

    Miller's recent book-length historical survey of Canadian treaty making is much more detailed than many of the "snapshot" surveys noted above, but it is both the level of detail and his approach that provide a different sense of this history. Importantly, although many scholars note the evolving nature of Canadian treaty history, Millers categorizations are less neat as he traces the chronological development of treaty making with colonial interests that moved from east to west. This approach allows for more overlap between types and eras of treaty making, allowing a sense of the continuity and change that has characterized this enduring practice. His survey is also more inclusive, incorporating what he terms fur trade "commercial compacts" as part of the early period of treaty history. He notes that Indigenous nations would not trade without the establishment of peaceful relations, and thus these "commercial agreements" overlap in both chronology and character with the peace and friendship agreements of the 18th century. Such agreements have generally been left out of legal surveys of treaty history, perhaps because the Crown was not the treaty-making entity. While the Hudson's Bay Company's Charter purportedly granted the Company territorial and governance authority in Rupert's Land, including sufficient authority to make treaties on behalf of the Crown, (91) not all trading companies had such treaty-making powers. Indeed, Millers account distinguishes between agreements made by the North West Company and the Hudson's Bay Company on this very point, excluding the former from at least "official" treaty history. (92) Relying on the legal authority of the Hudson's Bay Company to bring fur trade agreements into treaty history, however, is not the only or strongest basis for their inclusion. The argument for inclusion of the fur trade era in treaty history does not depend on the perfect legal authority of either the European and Indigenous treaty-makers in the fur trade era, nor does it require such treaties to be individually justiciable. Instead (or in addition), fur trade treaties are significant as part of an iterative process of treaties that made subsequent treaties possible.

    Including fur trade era treaties brings geographies frequently left out of treaty surveys--such as northern Quebec (93) and British Columbia--into the picture before the modern era. New France and the early colony of Quebec are also often left out of surveys of the country's treaty-making traditions. French...

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