John Borrows - The Right Relationship: Reimagining the Implementation of Historical Treaties

MICHAEL COYLE AND JOHN BORROWS

What is the right relationship between Canadas Indigenous peoples and the modern nation that is Canada? For a growing number of Canadians, this is a question that must be tackled if Canadians are to hold their heads high when they describe the living conditions and social opportunities offered to Native people in this country. Just as pressing, reflecting on the relationship between Canada and First Peoples raises fundamental questions about Canadas legitimacy as a state and of Canadians claims to be entitled to live where they do.

Historically, the treaty-making process was the favoured tool in Canada for assuring the future opportunities available to both the First Peoples of this land and the newly arrived settlers. Treaty-making was also the means by which colonial and, later, Canadian governments secured the legal basis of settlement within its borders. In 1764, more than 2,000 Indigenous representatives gathered for the Treaty of Niagara and were assured that settlement of land would only occur with their consent. Thus began the process by which the Senecas, the Mississaugas, the Odawa, the Potawatomis, the Saulteaux, the Dene, the Plains Cree, and many other nations entered into treaties to share their lands with settlers. For many Canadian government officials, the implications of those treaties are nicely contained within written documents drafted by Crown negotiators. However, for their Indigenous counterparts, who often spoke little English, the real importance of treaties was the relationship to which both sides had agreed. This relational aspect of the treaty-making venture is irrefutably manifested by the frequency with which, across the country, both sides negotiators used language of kinship in describing the intended goal of the treaty process.

For much of the twentieth century, non-Indigenous Canadians and the courts viewed the historical treaties as little more than a cultural footnote in this nations development. When it came to repatriating Canadas constitution, however, Native leaders united to ensure that at least the legal aspect of this neglect would end. The result? Section 35 of the Constitution Act, 1982 now recognizes and affirms the treaty rights of Aboriginal peoples, which the Supreme Court of Canada has since characterized as sacred agreements.

Nonetheless, decades of inattention to the treaty relationship have left a legacy of confusion and disagreement about the implications of treaty-making in the modern world. Unlike New Zealand, Canada has created no effective forum to settle disputes about the meaning and modern implications of its historical treaties. Arguments have inevitably arisen about how much of a say Aboriginal people should have over proposed interferences with the environment of their homeland, or about the benefits they should receive from wealth extracted from their traditional territory. Yet when disagreements arise about whether a historical treaty allows unfettered exploitation of the resources found on treaty lands, the parties usually have nowhere to turn apart from costly and adversarial contention in the courts. In the absence of appropriate channels through which treaty disputes can be cooperatively resolved, those disagreements have repeatedly escalated into frustration and confrontation. In recent years, the inevitable result has been a constant stream of protests, blockades and, on occasion, violence and the loss of human life. This misfortune is surely inconsistent with the self-image of Canada as a pluralistic country where civic disagreements are resolved by dialogue and where the rule of law is preferred over force.