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Backgrounder Historic Indian Treaties

Published by INAC on July 05, 2001
Indian Northern Affairs Canada

Between 1725 and 1923, treaties were signed between the Crown and many of the Indian tribes and nations living in what was to become Canada. Today these treaties are known as historic Indian treaties. From their beginning, treaties have played an important role in the relationship between the Crown and Aboriginal peoples in Canada.

Aboriginal Peoples, the Crown, and Treaties

An Indian treaty, as understood by the Government of Canada and the courts, is an agreement between the Crown and a specified group or groups of Indian people (Treaty First Nations) in which the parties created mutually binding obligations that were to be solemnly respected. The treaty sets out the promises, obligations, and benefits of the respective parties to the treaty. Evidence of a treaty can be found in both written documents and oral evidence.

Early treaties between the British Crown and Indian tribes and nations were made in order to establish peaceful relations along with strategic alliances during a period when Britain and France were competing for control of France’s North American colonial territories.

The British Royal Proclamation of 1763, proclaimed in response to the Pontiac Rebellion, changed the nature of historic treaty-making to encompass more than peace and friendship agreements. Treaties made after the Proclamation allowed for the surrender of land title from the Aboriginal inhabitants to the Crown but required that such surrenders take place in public with the Indians’ consent. The Proclamation also prohibited private individuals from acquiring Indian lands except through the Crown.

Many factors influenced the content of historic treaties including military conflicts, colonial and post-colonial settlements, railway building, agriculture development, and extraction of natural resources. The creation of treaties made it possible to develop and settle Canada as we know it today.

Treaty relations with Metis and Inuit

Métis people were included in some of the historic Indian treaties in Western Canada. The general approach of the Crown was to consider the specific circumstances of Métis people living in Indian communities and to provide them with the option to either be part of the Indian treaty or to accept scrip, which could subsequently be exchanged for cash or land. During the period in which post- Confederation Treaties Nos. 8 to 11 were made (1899 to 1921), a separate commission met to hear Métis claims and to negotiate their exchange for scrip.

Inuit were not included in historic treaty-making processes.

Pre- and Post- Confederation Treaties

Historic Indian treaties made with the Crown are generally referred to as belonging to the pre-Confederation era (1725 to 1867) or the post-Confederation era (1867 to 1923). Within these two eras, historic Indian treaties can be further divided into particular categories

Pre-Confederation Treaties

Maritime Peace and Friendship Treaties (1725 to 1779) The Maritime peace and friendship treaties were made with the Mi’kmaq, Maliseet and Passamaquoddy people in what was to become the Maritime provinces. The main concerns of the British colonial administration in the period covered by these treaties were to end hostilities between themselves and the Indians and to establish ongoing peaceful relations. In exchange for agreeing to keep the peace and to respect British civil and criminal law, the Crown promised at various times that Mi’kmaq, Maliseet, and Passamaquoddy Indians could continue to hunt and fish, trade with the British, and continue their customary and religious practices. These treaties did not involve the cession of any land.

Although ignored for years, the importance of the historic Maritime treaties was reaffirmed in the Supreme Court of Canada’s landmark Marshall decision of 1999, which confirmed that Mi’kmaq, Maliseet and Passamaquoddy Indians had a treaty right to engage in the Atlantic commercial fishery based on the court’s reading of treaties signed by these Indians in 1760-61.

Murray Treaty (1760)
This treaty, made in September 1760 during the final week of conflict between the French and the British, was in the form of a laissez-passer which guaranteed the Hurons safe passage to their village at Lorette, near Quebec. The document preserved the Hurons’ right to trade with the British as well as their customary practices and Catholic religion. The military governor of Quebec, James Murray, signed the treaty on behalf of the Crown. It was confirmed as a treaty by the Supreme Court of Canada in the case of R. v. Sioui in 1995.

Upper Canada Treaties (1764 to 1862)
The Ontario land surrender treaties can be divided into three distinct groups according to geography and chronology. From 1764 to 1806, First Nations ceded lands along the shoreline of the upper St. Lawrence River and those of lakes Erie and Ontario to the Crown. From 1815 to 1827, the Crown acquired the Indian lands extending from the Ottawa River to the eastern shores of Georgian Bay. In exchange for land surrenders by Indians, the Crown promised to accept Indians as British subjects, provide modest gifts of money, clothing, and other goods, and in certain cases to create reserves. From 1836 to 1862, the Crown acquired the northern and northwestern areas of what then was known as Upper Canada, an area that included the Saugeen Peninsula, Manitoulin Island, and the north shores of Lake Superior and Lake Huron.

Vancouver Island Treaties (1850 to 1854)
Fourteen land surrender treaties were made between 1850 and 1854 by Governor James Douglas and First Nations living on Vancouver Island, mainly in the areas of present-day Victoria, Nanaimo and Fort Rupert. In return for ceding these lands, the First Nations received lump-sum payments, retained their villages and adjoining lands, and were guaranteed a continuing right to hunt and to fish.

Post-Confederation Treaties

Numbered Treaties (1871 to 1921)
The numbered treaties (Treaty Nos. 1 to 11) covered northern and northwestern Ontario; the entire area of the present-day provinces of Manitoba, Alberta, and Saskatchewan; a portion of the present-day Northwest Territories; and the northeastern corner of present-day British Columbia. The Indian signatories to the numbered treaties received a variety of benefits in exchange for the surrender of their title or interest in the lands of the Canadian northwest. These included reserve lands, agricultural equipment and farm livestock, ammunition and clothing. The treaties guaranteed the right of Indians to hunt and fish on the lands ceded to the Crown so long as those lands remained unoccupied.

The treaties also provided for annual payments or annuities to be given to members of Treaty First Nations by the Crown, usually in the amount of $5 per member each year with larger amounts for Chiefs and headmen.

The Crown also agreed to maintain schools on the reserves or to provide teachers when requested to do so by the Treaty First Nations. In addition, Treaty No. 6 featured the promise of a medicine chest to be kept with the Indian agent in each community for the benefit of the Indian people. First Nations consider this treaty promise as the basis for the federal health services that their peoples receive today.

Williams Treaties (1923-29)
In exchange for the surrender of their interests in the lands of central southeastern Ontario and their hunting and fishing rights, the Indian signatories to the Williams treaties received a lump-sum cash payment. Additional Indian bands agreed to accept these treaties until 1930, through a process known as adhesion.

Some seventy historic Indian treaties are known to have been made between the Crown and the Indian people of Canada. From time to time, the courts have assessed the validity of previously unknown historic Indian treaties. The Murray Treaty of 1760 with the Hurons of Lorette is one such example, in R. V. Sioui. Other examples are the Beaver Hunting Ground Treaty of 1701 between the British and the Iroquois, in R. V. Ireland and Jamieson, and the Treaty of Swegatchy of 1760, in R. V. Coté.

Modern Treaties and Claims Agreements

No treaties were concluded between Canada and First Nations for half a century after the Williams treaties. However, treaty-making resumed in 1973 in the form of comprehensive claims agreements - also known as modern treaties.

These formal agreements are recognized as treaties by Section 35(3) of the Constitution Act, 1982 and are negotiated in order to provide a clear, certain and long-lasting definition of rights to land and resources for First Nations and Inuit people, in areas not already covered by existing treaties. The first modern-day treaty negotiated was the James Bay and Northern Quebec Agreement signed in 1975.

Since 1975 fourteen comprehensive claims have been settled, seven of these in the Yukon and four in the Northwest Territories. The largest of these agreements is that between Canada and the Inuit of the Eastern Arctic which led to the creation in 1999 of the new northern territory of Nunavut.

Apart from the Douglas Treaties on Vancouver Island and a portion of Treaty 8 in the northeast part of the province, no historic treaties were ever concluded with First Nations in what is now British Columbia.

Treaty-making resumed in 1993 as Canada, British Columbia and the First Nations Summit established the BC Treaty Commission to begin the process of treaty negotiations. Fifty-one First Nations are involved in 42 sets of negotiations at various levels of this process.

The Nisga’a of north-central B.C., who had been seeking to negotiate a treaty for more than a century, began negotiations in 1973. In a process separate from that of the B.C. Treaty Commission, the Nisga’a negotiated a final agreement based on their traditional territory. The Nisga’a Final Agreement Act received Royal Assent on April 13, 2000. This is the first modern treaty to be concluded in B.C.

Treaty Interpretation

The Government of Canada and the courts share the view that Indian treaties in Canada are a unique form of agreement in the sense that they are not governed either by the laws of contract or by international law that apply to treaties between nations. A major reason for this unique status is that unlike international treaties, Indian treaties in Canada are effectively irreversible once they have been agreed to. Once Indians and settlers had agreed to share the same territory, it quickly became almost impossible for them to return to their previous status when they had lived apart.

Treaties also have constitutional protection under Section 35(1) of the Constitution Act, 1982, which recognises and affirms treaty rights that already existed in 1982 or that were created after that date. This protection ensures that treaty and Aboriginal rights cannot be changed by legislation or other acts of government, but only by changing the Constitution. This gives the existence and interpretation of historic treaties an increased importance.

A growing body of treaty-related case law has resulted in the development of a number of principles of interpretation to guide the courts in their consideration of treaties and treaty rights. These principles are summarized as follows:

The treaty should be given a fair, large, and liberal interpretation in favour of the Indians.

Treaties must be read not according to the technical meaning of their words, but in the sense that they would be naturally understood by the Indians.

As the honour of the Crown is always involved, no appearance of "sharp dealings" should be sanctioned.

Any ambiguity in the wording should be interpreted as against the drafters and should not be interpreted to the prejudice of the Indians if another interpretation is reasonably possible.

Evidence by conduct or otherwise as to how the parties understood the treaty is of assistance in giving it content.

The rules of interpretation which the courts have developed for historic treaties do not apply to post-1975 comprehensive land claims settlements. The courts have found that the conditions under which comprehensive land claims settlements are negotiated are such that the involved Aboriginal people are well advised and informed. Therefore, the principle of neutrality in interpretation should apply.

Treaty Issues

Nearly all of the current questions about the meaning of the historic treaties and their place in contemporary federal government First Nations relations are linked to the issue of treaty interpretation. Among other issues, these questions concern the definition and scope of treaty fishing, hunting, and trapping rights; access to timber and other natural resources; education and health services; exemption from taxation and mandatory military service; eligibility for treaty annuities; portability of treaty rights; and the potential existence of treaty rights for Métis and non-status Indian people who are descendants of signatories to a treaty.

Treaty First Nations and the federal government often had differing reasons for entering in to historic treaties. This is one reason why many treaty issues continue to be decided by the Supreme Court of Canada. To fully comprehend the difficulties that have arisen, it is important to understand the perspectives of the parties to the treaties. For the most part, the Crown entered into the historic treaties with the intention of obtaining land surrenders from the different Aboriginal people occupying much of what is now present-day Canada.

The Treaty First Nations, on the other hand, entered into the historic treaties seeking to share their lands and resources in exchange for needed assistance from the Crown, which would in turn enhance their ability to pursue their traditional lifestyle and maintain their livelihood while making the transition to a new economy.

The parties to the historic treaties also have different approaches to interpreting treaties. For example, the Crown has relied mainly on the written text of treaties in its interpretation of historic treaties. Treaty First Nations, on the other hand, have relied on other evidence such as oral history which has been passed down from generation to generation of Treaty First Nations.

The disparity that exists between these two general points of view has been resolved to some extent by the courts in their development of principles for the interpretation of treaties made between the Crown and the Aboriginal peoples of Canada. However, this particular process is quite costly and usually unfolds over a long period of time. Many cases are currently before the courts and these principles will likely continue to evolve.

Other processes continue to be used by the parties to the historic treaties as a means by which treaties can be better understood. These include the Specific Claims Negotiation Process of the federal government and exploratory treaty discussions such as those facilitated by the Office of the Treaty Commissioner for Saskatchewan.

For further information on treaties, agreements and comprehensive claims, please refer to http://www.inac.gc.ca/pr/index_e.html on the DIAND website.

Treaty related decisions of the Supreme Court of Canada may be accessed by way of, http://www.scc-csc.gc.ca.

For more visit: Treaty Information ~ Indian Northern Affairs Canada

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