Indigenous Treaties 101
Understanding Indigenous Treaties in Ontario
The following webinar was hosted by Canadian Environment Law Association. This is the third part in a 3-part guide with Cambium Indigenous Professional Services (CIPS). The guide (and webinar) covers the following topics:
- What are inherent rights?
- What is a treaty?
- Who are treaty people?
- What are treaties in the colonial era and how do treaty relations work today?
The webinar / video is just below followed by the transcription.
Thanks April, yes, welcome everyone to Treaties 101. This is the heart of the talk everybody that we've done so far and I hope to educate everybody on treaty. It's not meant to be an overview of specifically one treaty but an overview of most contextual agreements within a treaty area.
When people think of treaty rights people think of them as special Indigenous Rights however all people in Canada are actually Treaty people with their own set of rights and responsibilities.
These are the foundational part of Canadian society and people don't know this but every road and house or building (business) that exist today is within a treaty area. It was made possible because of the treaties signed with the Indigenous People.
From today what we are going to do is, is we are going to explore what are inherent rights because that's a question that I get quite a bit. What is a treaty? And begin to answer who are Treaty People? Overview of the treaties in the Colonial era and treaty relations today and moving forward into the future.
Before I really get into this I'd like to acknowledge that I am still in treaty 18 which was signed in 1818 with the Chippewa Nations.
Lots of you have reached out to me for follow up information about how to do land acknowledgement but make sure you are focused on doing that as you proceed down the road working with Indigenous People.
How to do this and I often ask people questions about what they know about treaty. We created a game, my friends and I a few years ago called "trick or treaty" and we do it for a lot of our booths at different conferences and stuff like that.
If you ever see us at a booth please come and win a prize (everyone wins a prize at our booth) but we're going to try and do this virtually and please bare with us a little bit because I've never done this online before. So, we'll do the next question.
(Sheila from CELA) Alright, the quiz is finished up and we are going to pass it back over to Gary.
Prior to 1960, the treaties signed in Canada covered all of the country except for most of the Yukon, British (Columbia?) and Nunavut. Historical treaties are those treaties signed by First Nations, British and the Canadian governments between 1701 and 1923.
The British and Canadian governments wanted to sign the treaty with First Nations in order to reduce the possibility of conflict and to support European Immigration and land settlement, agriculture, natural resource use, trade and other economic developments.
It's one of those interesting things and I often talk about treaties to people that I often say "It's a binding contract between us and people who want to immigrate to Canada and how to live here".
So, what are inherent rights?
Indigenous rights are collective rights which flow from Indigenous peoples' continued use and occupation of certain areas. They are inherent rights which Indigenous peoples have practiced and enjoyed since before European contact.
Because each First Nation has historically functioned as a distinct society, there is no one official overarching Indigenous definition of what those right are.
Although these specific rights may vary between Indigenous groups, in general they include rights to the land, rights to subsistence resources and activities, the right to self-determination and self-government, and the right to practice one's own culture and customs including language and religion
Inherent rights have not been granted from external resources, such as the signing of a treaty but for our own occupation of our own home territories as well as the ongoing societal structures of creating our own political and legal systems.
As such Indigenous rights are separate from those rights afforded to Non-Indigenous Canadians under Canadian common law.
Specific rights, on the other hand are the rights held by an Individual or an Indigenous group. These rights may be recognized in treaty as well, so they can be written within the rights of the treaty however they are a separate governing body existing outside of the treaty as well.
People have heard of the Sparrow decision where an Aboriginal group, where it was confirmed in the court that they had the right to fish. There's also the Powley case which is more common in Ontario with the Metis people and they had the rights to fish.
Both cases don't extend to other Indigenous groups, it's just those specific ones.
Generic rights are held by all Aboriginal people or Indigenous People in Canada and they include
- The rights to the land
- Rights to resources and activities
- Rights to self-determination and self-govern themselves
- Rights to practice their culture including language and religion and it's also called the right to "cultural integrity"
- Rights to enter into treaties with people.
What are treaty rights?
Now that I've told you about what Inherent Rights are, treaty rights are a little bit different and that's the interesting part. People believe a lot of that stuff from the Inherent Rights bubble actually are the treaty rights that people assume we have as Indigenous People.
In 1763, the Royal Proclamation confirmed the original occupancy of Indigenous Peoples have paved the way for treaties between the British Crown and the Indigenous People. This was a neat time, In the early 1700's, Crown negotiators from Britain actually knew how to do Indigenous Ceremonies, they knew how to make Wampum Belts and actually practice customs and speak the language with the groups that they were working with.
It was a totally different time that we see today in the modern context.
Treaties are the legally binding agreements that set out the rights, responsibilities and relationship between the First Nation and the federal and provincial governments. It covers such
- Payment of goods or monies;
- Cessions for First Nations title to certain lands;
- Creation of the reserves system;
- Protection of fishing, hunting and harvesting rights;
- Promises of schools, clothing and farming equipment and supplies
The big question that I get all the time and it's neat that I'm glad people are now so comfortable that they email me or call me and just ask me when they see me was there every treaties between First Nations groups.
Did we ever have a treaty between this community and that community and they answer is actually yes, there was always treaties or agreements between groups and it was usually in the form of Wampum.
They often create these belts to signify the creation of the treaty and it's interesting because if you look at the beading of a Wampum belt (this is just a side note), white means peace and friendship so the belt is primarily white (it's actually peace and friendship) where if it's predominantly purple it's actually a sign of war and uneasy times.
That's why a lot of belts you see created by Indigenous People are actually white because they are coming together and signing of a mutual agreement and respect.
These belts were often brought up in ceremony and talked about every so often and they did the pipe ceremony, they had feasts to honour the spirit of that agreement between two Indigenous Nations.
Europeans when they first came over started also creating Wampum belts as well with Indigenous People. Just a side note about the creation of a Wampum belt, the actual shell that we use in Ontario comes from the East Coast some it had to brought over from the East Coast and ground up to be made.
The beads within a Wampum actually take 3 days to carve out by hand for individual beads so if you see a long belt you can imagine how much time that would take to actually create that belt - it's quite a unique thing to see.
Treaties in Ontario.
Ontario has 46 treaties as I kind of tricked you with a question today and they're formal relationship between the Crown and First Nations signed between 1781 and 1930. This map (below) depicts, what I like to call it, a larger land and treaty summary map.
It's very hard to depict different treaties graphically (we've learned) so this is actually us trying to graphically depict major treaty units especially when you get into Southern Ontario. A lot more fragmentation of parcels of land.
When you hear us talk about treaties, we kind of label them as pre-confederation treaties and post confederaton treaties and people really don't know those timelines.
A pre-confederation treaty is between 1781 to 1862 and the more common ones began with treaties of Fort Niagara and that was also kind of a trick question there when I had that treaty listed as cross the border. That was signed in 1764 and it lasted until 1781 (when the negotiation process was).
There's the Crawford Purchases covering most of Southern Ontario.
Most confederation treaties that people know about was from 1873 to 1930. By then there were bigger parcels of land which were treaties 3, 5 and 9 where signed with the Ojibway but we know them as the Anishinabek People and the Cree or the Mushkegowuk communities in the North.
Within the context of these bigger treaties there were set asides for reserves, one time payments and annual payments, protecting of hunting and fishing rights on Crown lands. Some people refer to Crown Lands as Indigenous Lands or Treaty Lands and some cases creating school buildings and salaries and giving of agricultural equipment (and ammunition).
It's interesting in some of those treaties too that every year each member will receive x number of agricultural equipment and so much ammunition. It's just neat to see the lack of fulfillment in the treaty making process.
The Robinson-Huron Treaty which actually starts not far from my house was signed in 1850 and was signed between the Anishinabek Communities, living around the North Shores of Lake Huron and Lake Superior.
It's really interesting because they are reserved lands for exclusive use by First Nations only so other people could not come in to those reserve lands and protected the hunting and fishing rights. As well as annual cash payments for people who live within the treaty areas (itself).
A big question, since I do a lot of Indigenous Engagement training, people often think and ask me the question "Gary, is there treaty overlap and why is there treaty overlap? I usually make the joke that Europeans when they came over here they didn't have GPS and couldn't create GIS layers and fancy maps.
They did have true methods of mapping and documentation to make a treaty.
I live in a traditional area, the Gunshot treaty and that treaty was neat because it was talking about, it covers a good portion of Lake Simcoe and all the way down to the shores of Lake Ontario over to Port Hope. Basically, from Lake Simcoe all the way to Port Hope, that's how far a gunshot could go back, in the day when it was fired and that's a very crude way of mapping something.
We also had boundaries and they extended into each others territories. We also had agreements between each other to share those areas and that's just the way it was.
When we start looking at doing Indigenous Engagement and there is treaty of territory overlaps, there may be an overlap of the land claim as well and another example people might ask me to.
What actually happens is that your supposed to work with all the communities that have rights to that area and the Supreme Court of Canada ruled that communities must work within themselves to work out their differences to have conflict resolutions prior to issuing a statement of acceptance.
If there is an internal peace there within the First Nations Communities that need to happen prior to finalization of a project.
I hope that answers questions that people may have but we can still talk about those later as well.
Land Claim vs. Treaty.
It's similar to the last slide but the goal for the land claim negotiation is to create a treaty within the jurisdiction process and resolve ambiguity over the ownership or use of land and resources. The treaty once created after the land claim is finalized will convey the rights and obligations of the parties within that area.
Another layer to the complexity of treaties is if there is a treaty going over top of another treaty that those Nations have to actually work out, similar to what we saw in the last slide, their challenges to each other before positive momentum can happen within the new treaty area or overlap.
Modern Day Treaties.
These are treaties that are signed after 1975 and they happen all the time and they're being re-negotiated and files are being re-opened. It's really interesting, things in modern day treaties and I personally beleive treaties should be looked at every few years just to make sure that relationship is being honoured as well as things that kind of progress and things that changed.
We all actually have to be working together but within modern day treaties you often see consultation and participation requirements like we talked earlier on in this series, I think it was day one. What is the consultation requirements look like?
What are the ownerships of land and how do you do that? Wildlife harvesting rights? Financial settlements? Participation in land use management practices in specific areas. There might be areas of interest or sacred areas that you would like protected and need to be a part of that dialogue.
Resource revenue sharing agreements to participate in the Canadian economy, that's a big one right?
A lot of fundamental treaties (pre-confederation) had those agreements in there as well. They were just never enforced by the Crown to proponents to pay Indigenous Communities (to be the best way I can say it) and preparations when making agreements takes such effect as implementation planning.
When we do planning, effects within the different items happening I look at provincial policy statements on behalf of our community all the time and how does that affect our rights.
That's the stuff that the new modern day treaties have. It's kind of a modern day document and it allows Indigenous People to be a part of Canada, collect a resource revenue sharing and I fully support that and makes us be a more viable member of the Canadian economy.
To wrap it up, historical treaties were learned to negotiate orally and written down by the Crown from the Crown's perspective, which is why there is some friction there. Some were written down by the Crown in advance before oral negotiations even took place.
You look at the Gunshot treaty (again), we know the history of why it was written but when we actually got the file from the Crown, there was nothing in it when we opened it so that was interesting.
Many, if not all First Nations signatories to the treaty understood the agreement was the foundation of their relationship of co-existence and sharing the land and it's resources and working together.
That's a big thing all Indigenous People talk about was that we're trying to work together (and co-exist together) and that's one of the challenges we still have today.
The Crown's understanding of treaties were more of a dominant view. The Crown's perspective on most historical treaties mostly stand for the surrendering of land with the exception of the reserves and limited rights to hunt, fish and trap in those areas.
A lot of people talked about renewing the treaty relationship or wanting the government to fulfill those treaties.
I think it's time to re-establish that nation to nation relationship and co-existence especially now given the times we are in but we need to learn to share the resources and land start to create a harmony between the two groups again.
For historical treaties, looking at the written treaty document alone, written in English by the Crown, from its own perspective and is very rarely captured in the language or what was actually a true representation of the true oral agreement.
When implementing a contract the parties both had a different perspective of what actually happened but like I said at the beginning, treaties are a contract between Indigenous People and the Crown about how Non-Indigenous People can occupy Canada and work together.
Treaties are not a handshake or a handout. They are a binding contract (and that's all) from a business perspective.
Treaty rights are recognized and affirmed by section 35 of the constitution.
All Canadians are beneficiaries of the treaties whether it's the Crown or a settler or a Non-Indigenous person (or both). Treaty relationships are meant to be about how to get along with each other, Canada will be a stronger place when we have stronger treaty relationships. Especially ones that are clear for all parties and that are honoured and respected.
I've been a part of some non-treaty documents (that were written) but Canada conservation protection documents and we're going to start honouring those documents because that's what we need to do, jointly together from both sides. This is how we are going to do it moving forward.