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The numbered treaties (or Post-Confederation Treaties) are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning monarch of Canada (Victoria, Edward VII or George V) from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements. These Treaties are agreements with the Government of Canada, administered by Canadian Aboriginal law and overseen by the Minister of Aboriginal Affairs and Northern Development.
The relationship between The Canadian Crown and Aboriginal peoples stretches back to first contact between European colonialists and North American indigenous peoples. Over centuries of interaction, treaties were established concerning the monarch and aboriginal tribes. Canada's First Nations, Inuit and Métis peoples have, like the Māori and the Treaty of Waitangi in New Zealand, come to generally view these agreements as being not between them and the ever-changing Cabinet, but instead with the continuous Crown of Canada, as embodied in the reigning sovereign. As an expression of this association, Aboriginal peoples in Canada and members of the Canadian Royal Family will regularly meet to celebrate milestone anniversaries, exchange ceremonial and symbolic gifts, and discuss treaty issues.
Regions affected by the treaties include portions of what are now Alberta, British Columbia, Manitoba, Ontario, Saskatchewan and the Northwest Territories. When the Dominion of Canada was first formed in 1867 as a confederation of several British North American colonies, most of these regions were part of Rupert's Land and the North-Western Territory and were controlled by the Hudson's Bay Company.
The "National Dream" of Sir John A. Macdonald, the first Prime Minister of Canada, was to create a nation from sea to sea, tied together by the Canadian Pacific Railway. In order to make this dream a reality, the Government of Canada needed to settle the southern portions of Rupert's Land (present day Alberta, Manitoba and Saskatchewan).
Administration of Rupert's Land and the North-Western Territory was transferred to the Canadian government in 1869. Out of these lands, Canada created the Northwest Territories. Canadian law recognized that the First Nations who inhabited these lands prior to European contact had title to these lands. The settlement of the Northwest Territories would not be possible, if title to the land remained with the First Nations. Therefore, it was vital to the National Dream to obtain title to the lands from First Nations.
In order to obtain title to most of the lands, the Canadian government proceeded with this series of treaties. Each treaty delineates a tract of land which was thought to be the traditional territory of the First Nation or Nations signing that particular treaty (the "tract surrendered"). In exchange for a surrender of their rights and title to these lands, the First Nations were promised a smaller parcel of land as a reserve, annual annuity payments, implements to either farm or hunt and fish and the right to continue to hunt and trap or hunt, trap and fish on the tract surrendered.
First Nations peoples had been decimated by disease outbreaks, the near-extinction of the plains bison, and whiskey traders. They were eager to receive food aid and other assistance from the government. When the government asked for the land in return, they were not in a position to say no. Historians critical of the government have called its actions a "submit or starve" policy. Thus, the treaties are tainted with colour of coercion and any modern interpretation of theirs terms (see modern legal interpretation' below) would accordingly tend to favour the coerced, i.e. native side.
With the advent of the "responsible government" doctrine in the 1840s, daily operating responsibilities of the Crown in Canada were moved to Ottawa. The British government, in an exchange of letters at the time of the transfer of the NWT, sought assurances that Canada would provide the Crown's obligation to First Nations. When First Nations residents were allowed to vote in 1960, they gained the same recourse to the UK that all Canadian petitioners still had at that time, if it had been removed, due to the fact that they were then full status Canadian citizens.
The Assembly of First Nations, despite being composed of persons elected under the Indian Act as "Indian Agents" to perform its provisions on behalf of the federal government of Canada, maintained that the treaties were peer to peer lateral agreements between sovereignties and nothing less. A competing interpretation, common since the American Indian Movement of the 1960s, is that the treaties were never valid because of being:
In 1981, all provinces other than Quebec agreed to a constitutional amendment that effectively removed the route of appeal to the UK parliament, courts, and crown.
Subsequent attempts (Meech Lake Accord, Charlottetown Accord) to try to appease the government of Quebec failed in part due to First Nations opposition. It has never been in dispute that First Nations would have to voluntarily agree with their formal treaty partner, the Canadian Crown, to modify the treaties. This was a major factor in the defeat of Charlottetown - public opinion favoured it before Elijah Harper's stand but not once it became clear that aboriginal rights might be threatened. Both Quebec and First Nations, accordingly, retained rights of direct recourse to the Queen.
In 2010, Canada signed the United Nations Declaration on the Rights of Indigenous Peoples. In 2011 and again in 2012 the United Nations criticized the federal government over Attawapiskat. In 2012, the Federal Court of Canada ruled that 200,000 off-reserve natives and 400,000 Métis were also "Indians" in the sense of the Indian Act in Daniels v. Canada. These however had no formal representation at the Assembly of First Nations which had hitherto been assumed by the federal government to speak authoritatively on all matters involving "Indians".
These varying interpretations and issues came to a head in late 2012 with the Idle No More movement and a liquid diet by Attawapiskat elected Chief Theresa Spence. This and related events brought the fact that the treaties and 1867 law provided for direct Crown recourse back to public attention. Chief Spence demanded direct Crown attention to the Cabinet's attempt to remove federal government oversight of lands and waters and environmental issues that duplicated provinceial oversight of the same. After an agreement by opposition parties was struck to end Chief Spence's fast, the legal analysis that supported the principle of direct Crown recourse was adamantly supported by interim Liberal Party of Canada leader Bob Rae and others. Idle No More itself presented its legal analysis via Pam Palmater. Her analysis resembles that of Matthew Coon Come, who summarized the Grand Council of the Cree position in a scholarly analysis of the Quebec sovereignty movement and its authority to withdraw from Confederation taking First Nations territory with it. Both his analysis and Palmater's emphasize the need for voluntary renegotiation of treaties between equal partners, and the impossibility of cutting off any avenue of appeal to the Crown.
However, both Coon Come and Palmater rely on context in common amongst Eastern First Nations whose agreements (such as the Treaty of Montreal in 1701) often date back to French colonial occupancy. It remains unclear how modern-era far-northern and western treaties such as the Numbered Treaties agreed under the 1867 law but before the Indian Act should be interpreted or interpretations appealed. This remains one of the most contentious areas of Canadian constitutional law and affects not only First Nations but Quebec's constitution, borders and limits of its sovereign power.