THE LEGAL PERSPECTIVE OF TREATY

The previous article “Origin and Nature of Treaties”, (February 20, 2010) provided a brief concept that the nature of treaty must include First Nations perspective, including the Elders language and teachings. This second article will discuss legal perspective of treaty.

The article will include the Royal Proclamation of 1763, the British North America Act 1867, the Constitution Act of 1982, the Indian Act (1876) and several Supreme Court decisions relevant to the legal nature of treaties.

The article will only summarize the significant references to confirm legal status of the treaty making process.

The Royal Proclamation of 1763 is generally referred as a first legal document to recognize that the treaty process had legal status. The Proclamation confirmed Aboriginal land rights, and that treaty making must precede settlement. The Proclamation established to protect Aboriginal land rights that survives today. This treaty process confirmed that treaties are solemn agreement between two nations that create mutually binding obligations to both nations. At this time of history First Nations were viewed as military allies that were considered important to nation building of what is now Canada. First Nations and Supreme Court usually makes the Proclamation as the basis of legal status when referring to First Nations land claims.

The British North America Act of 1867 established Canada as a country and confederation. First Nations by virtue of treaty were confirmed in Section 91(24) “Indians and lands reserved for Indians”. Section 91(24) confirmed that the government of Canada assumed responsibility of First Nations. According to First Nations this includes the fiduciary obligations of treaty making process. It’s important to note that Canada is a federal state with a “division of powers” between the federal government and the provinces. This division includes national interest, spending power and jurisdiction between the federal and provincial governments.

The British North American Act of 1867 instructed treaty commissioners to secure title to land from First Nations through legal treaty process.

Between 1867 to 1982 the federal government has been reluctant to recognize their treaty obligations as was negotiated during the treaty making process. The federal government introduced the Indian Act (1867) as legislation mainly to control and regulate the lives of First Nations. The other important part of the Indian Act is to control citizenship, that is who should become treaty or not. The underlining principle of the Indian Act was to assimilate and civilize First Nations to the mainstream of Canadian society. The Indian Act was so restrictive that First Nations had little room to develop. The government at the time had a view that First Nations were a vanishing race to be absorbed into Canadian society. The concept of industrial schools and later the residential school system were introduced to deny the spirit and intent of the treaty making process.

The patriation of the Constitution Act of 1982 from Great Brittan to Canada provided a turning point in federal and First Nations relations. Section 35(1) of the 1982 Constitution recognizes the rights of aboriginal peoples of Canada as having constitution status by virtue “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. This confirmed aboriginal title because of first nations “prior occupation” of North America before the coming of Europeans. For First Nations the word existing means the original spirit and intent of treaties that defines the language and history to protect First Nation knowledge and heritage. Since 1982, Supreme Court decisions have been interpreting law pertaining to First Nations in a fair and balanced content.

For this article only several court decisions will be provided. Supreme Court decision on Sparrow and Guerin makes reference to the fiduciary obligation by the federal government to First Nations. The Delgamuuku is significant to First Nations because it recognizes the oral history of First Nations by the Elders and that a negotiation process between First Nations and the federal government is a desired process to address outstanding rights of First Nations.

The quote by C.J. Lamaer in the Delgamuuku case “let us face it, we are all here to stay”, is important to the Elders because it relates to the promoted concept “we are all treaty people” and provides the spirit and intent of treaty to bring partnership, co-existence and reconciliation to all peoples.

The purpose of these articles is to facilitate and generate a public discussion as to the origin and nature of treaties. This article will only provide discussion notes to set more dialogue and more proper interpretation of treaties whether it is from a First Nation perspective, legal perspective or the policy implementation of treaties.

In conclusion the objective of this article is to provide a starting general point to bring meaning of treaty to justice.