Keeping Promises Ii Preface

keeping promises ii preface

mcgill-queen's native and northern series (In memory of Bruce G. Trigger) Sarah Carter and Arthur J. Ray, Editors

1 When the Whalers Were Up North 11 When the North Was Red Inuit Memories from the Eastern Aboriginal Education in Soviet Arctic Siberia Dorothy Harley Eber Dennis A. Bartels and Alice L. 2 The Challenge of Arctic Shipping Bartels Science, Environmental Assess- 12 From Talking Chiefs to a Native ment, and Human Values Corporate Elite Edited by David L. VanderZwaag The Birth of Class and National- and Cynthia Lamson ism among Canadian Inuit 3 Lost Harvests Marybelle Mitchell Prairie Indian Reserve Farmers and 13 Cold Comfort Government Policy My Love Affair with the Arctic Sarah Carter Graham W. Rowley 4 Native Liberty, Crown Sovereignty 14 The True Spirit and Original The Existing Aboriginal Right of Intent of Treaty 7 Self-Government in Canada Treaty 7 Elders and Tribal Council Bruce Clark with Walter Hildebrandt, Dorothy 5 Unravelling the Franklin Mystery First Rider, and Sarah Carter Inuit Testimony 15 This Distant and Unsurveyed David C. Woodman Country 6 Otter Skins, Boston Ships, and A Woman’s Winter at Baffin Island, China Goods 1857-1858 The Maritime Fur Trade of the W. Gillies Ross Northwest Coast, 1785-1841 16 Images of Justice James R. Gibson Dorothy Harley Eber 7 From Wooden Ploughs to Welfare 17 Capturing Women The Story of the Western Reserves The Manipulation of Cultural Helen Buckley Imagery in Canada’s Prairie West 8 In Business for Ourselves Sarah A. Carter Northern Entrepreneurs 18 Social and Environmental Impacts Wanda A. Wuttunee of the James Bay Hydroelectric 9 For an Amerindian Autohistory Project An Essay on the Foundations of a Edited by James F. Hornig Social Ethic 19 Saqiyuq Georges E. Sioui Stories from the Lives of Three 10 Strangers Among Us Inuit Women David Woodman Nancy Wachowich in collaboration with Apphia Agalakti Awa, Rhoda Kaukjak Katsak, and Sandra Pikujak Katsak Acknowledgments iii

20 Justice in Paradise 31 The Heavens Are Changing Bruce Clark Nineteenth-Century Protestant 21 Aboriginal Rights and Self- Missions and Tsimshian Government Christianity The Canadian and Mexican Susan Neylan Experience in North American 32 Arctic Migrants/Arctic Villagers Perspective The Transformation of Inuit Edited by Curtis Cook and Juan D. Settlement in the Central Arctic Lindau David Damas 22 Harvest of Souls 33 Arctic Justice The Jesuit Missions and Colonial- On Trial for Murder - Pond Inlet, ism in North America, 1632-1650 1923 Carole Blackburn Shelagh D. Grant 23 Bounty and Benevolence 34 The American Empire and the A History of Saskatchewan Treaties Fourth World Arthur J. Ray, Jim Miller, and Frank Anthony J. Hall Tough 35 Eighteenth-Century Naturalists of 24 The People of Denendeh Hudson Bay Ethnohistory of the Indians of Stuart Houston, Tim Ball, and Mary Canada’s Northwest Territories Houston June Helm 36 Uqalurait 25 The Marshall Decision and Native An Oral History of Nunavut Rights Compiled and edited by John Bennett Ken Coates and Susan Rowley 26 The Flying Tiger 37 Living Rhythms Women Shamans and Storytellers Lessons in Aboriginal Economic of the Amur Resilience and Vision Kira Van Deusen Wanda Wuttunee 27 Alone in Silence 38 The Making of an Explorer European Women in the Canadian George Hubert Wilkins and the North before 1940 Canadian Arctic Expedition, 1913- Barbara E. Kelcey 1916 28 The Arctic Voyages of Martin Fro- Stuart E. Jenness bisher 39 Chee Chee An Elizabethan Adventure A Study of Aboriginal Suicide Robert McGhee Alvin Evans 29 Northern Experience and the 40 Strange Things Done Myths of Canadian Culture Murder in Yukon History Renée Hulan Ken S. Coates and William R. 30 The White Man’s Gonna Getcha Morrison The Colonial Challenge to the 41 Healing through Art Crees in Quebec Ritualized Space and Cree Identity Toby Morantz Nadia Ferrara iv Acknowledgments

42 Coyote and Raven Go Canoeing 54 Kiviuq Coming Home to the Village An Inuit Hero and His Siberian Peter Cole Cousins 43 Something New in the Air Kira Van Deusen The Story of First Peoples Televi- 55 Native Peoples and Water Rights sion Broadcasting in Canada Irrigation, Dams, and the Law in Lorna Roth Western Canada 44 Listening to Old Woman Speak Kenichi Matsui Natives and Alternatives in Canadi- 56 The Rediscovered Self an Literature Indigenous Identity and Cultural Laura Smyth Groening Justice 45 Robert and Francis Flaherty Ronald Niezen A Documentary Life, 1883-1922 57 As affecting the fate of my absent Robert J. Christopher husband 46 Talking in Context Selected Letters of Lady Franklin Language and Identity in Kwak- Concerning the Search for the Lost waka’wakw Society Franklin Expedition, 1848-1860 Anne Marie Goodfellow Edited by Erika Behrisch Elce 47 Tecumseh’s Bones 58 The Language of the Inuit Guy St-Denis Syntax, Semantics, and Society in the Arctic 48 Constructing Colonial Discourse Louis-Jacques Dorais Captain Cook at Nootka Sound Noel Elizabeth Currie 59 Inuit Shamanism and Christianity Transitions and Transformations in 49 The Hollow Tree the Twentieth Century Fighting Addiction with Tradition- Frédéric B. Laugrand and Jarich G. al Healing Oosten Herb Nabigon 60 No Place for Fairness 50 The Return of Caribou to Ungava Indigenous Land Rights and Policy A.T. Bergerud, Stuart Luttich, and in the Bear Island Case and Beyond Lodewijk Camps David T. McNab 51 Firekeepers of the Twenty-First 61 Aleut Identity Century Tradition and Modernity in an First Nations Women Chiefs Indigenous Fishery Cora J. Voyageur Katherine L. Reedy-Mascher 52 Isuma 62 Earth into Property Inuit Video Art Aboriginal History and the Making Michael Robert Evans of Global Capitalism 53 Outside Looking In Anthony J. Hall Viewing First Nations Peoples in 63 Collections and Objections Canadian Dramatic Television Aboriginal Material Culture in Series Southern Ontario, 1791-1914 Mary Jane Miller Michelle A. Hamilton Acknowledgments v

64 These Mysterious People 75 Our Ice Is Vanishing/Sikuvut Shaping History and Archaeology Nunguliqtuq in a Northwest Coast Community A History of Inuit, Newcomers, Susan Roy and Climate Change 65 Telling It to the Judge Shelley Wright Taking Native History to Court 76 Maps and Memes Arthur J. Ray Redrawing Culture, Place, and 66 Aboriginal Music in Contemporary Identity in Indigenous Canada Communities Echoes and Exchanges Gwilym Lucas Eades Edited by Anna Hoefnagels and 77 Encounters Beverley Diamond An Anthropological History of 67 In Twilight and in Dawn Southeastern Labrador A Biography of Diamond Jenness John C. Kennedy Barnett Richling 78 Keeping Promises 68 Women’s Work, Women’s Art The Royal Proclamation of 1763, Nineteenth-Century Northern Aboriginal Rights, and Treaties in Athapaskan Clothing Canada Judy Thompson Edited by Terry Fenge and Jim Aldridge 69 Warriors of the Plains The Arts of Plains Indian Warfare Max Carocci 70 Reclaiming Indigenous Planning Edited by Ryan Walker, Ted Jojola, and David Natcher 71 Setting All the Captives Free Capture, Adjustment, and Recollec- tion in Allegheny Country Ian K. Steele 72 Before Ontario The Archaeology of a Province Edited by Marit K. Munson and Susan M. Jamieson 73 Becoming Inummarik Men’s Lives in an Inuit Community Peter Collings 74 Ancient Pathways, Ancestral Knowledge Ethnobotany and Ecological Wis- dom of Indigenous Peoples of Northwestern North America Nancy J. Turner This page intentionally left blank preface vii

Keeping Promises

The Royal Proclamation of 1763, Aboriginal Rights, and Treaties in Canada

Edited by terry fenge and jim aldridge

McGill-Queen’s University Press Montreal & Kingston • London • Chicago viii preface

isbn 978-0-7735-4586-1 (cloth) isbn 978-0-7735-4587-8 (paper) isbn 978-0-7735-9754-9 (epdf) isbn 978-0-7735-9755-6 (epub)

Legal deposit fourth quarter 2015 Bibliothèque nationale du Québec

Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlo- rine free.

This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publica- tions Program, using funds provided by the Social Sci- ences and Humanities Research Council of Canada. Fund- ing has also been received from from the Land Claims Agreement Coalition.

McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Cana- da Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication

Keeping promises : the Royal Proclamation of 1763, aboriginal rights, and treaties in Canada / edited by Terry Fenge and Jim Aldridge.

(McGill-Queen's Native and northern series ; 78) Includes bibliographical references and index. Issued in print and electronic formats. isbn 978-0-7735-4586-1 (bound). – isbn 978-0-7735-4587-8 (pbk). – isbn 978-0-7735-9754-9 (epdf). – isbn 978-0-7735-9755-6 (epub)

1. Native peoples – Land tenure – Canada. 2. Native peoples – Canada – Claims. 3. Native peoples – Civil rights – Canada. 4. Native peoples – Legal status, laws, etc. – Canada. I. Fenge, Terry, 1950–, author, editor II. Aldridge, Jim, author, editor III. Series: McGill-Queen's Native and northern series ; 78

ke7739.l3k43 2015 342.7108'72 c2015-904020-5 kf8205.k43 2015 c2015-904021-3

This book was typeset by True to Type in 10.5/13 Sabon Acknowledgments ix

This book is dedicated to Indigenous peoples in Canada and throughout the Americas. Colonization and dispossession – by the Spanish, Por- tuguese, French, British, Dutch, Americans, and Canadians – are a constant theme in the Western Hemisphere since 1492. Yet Indigenous peoples have survived and continue to live in all parts of the hemisphere, seeking to recover lost rights and to determine their own futures in line with the 2007 United Nations Declaration on the Rights of Indigenous Peoples. While this book addresses circumstances in Canada, its broad intent is to support the achievement of self-determination by Indigenous peoples wherever they reside. This page intentionally left blank preface xi

Contents

Acknowledgments xiii Foreword xv cathy towtongie and mitchell stevens Introduction 3 terry fenge and jim aldridge 1 Address by the Governor General of Canada 7 his excellency the right honourable david johnston 2 Address by the Minister of Aboriginal Affairs and Northern Development 10 the honourable bernard valcourt 3 The Royal Proclamation of 1763 and the Aboriginal Constitution 14 brian slattery 4 The Proclamation of 1763: Indian Country Origins and American Impacts 33 colin g. calloway 5 The Aboriginal Charter of Rights: The Royal Proclamation of 1763 and the Constitution of Canada 49 mark d. walters 6 The Impact of the Royal Proclamation of 1763 on Quebec: Then and Now 69 ghislain otis xii Contents

7 Canada’s Historic Treaties 81 j.r. miller 8 Negotiation and Implementation of Modern Treaties between Aboriginal Peoples and the Crown in Right of Canada 105 terry fenge 9 The 1998 Nisga’a Treaty 138 jim aldridge 10 Cree Experience with Treaty Implementation 153 matthew coon come 11 The Alaska and Canadian Land Claim Settlements 173 alastair campbell In Conclusion 194 terry fenge and jim aldridge

appendices I The Royal Proclamation of 7 October 1763 201 II The 1913 Nishga Nation Petition to His Majesty’s Privy Council 207

Notes 217 Bibliography 245 Contributors 261 Index 265 preface xiii

Acknowledgments

This book is the result of vision and commitment by many people. The political leaders of the members of the Land Claims Agreements Coalition appreciated fully the need to mark and commemorate the 250th anniversary of the Royal Proclamation of 1763 and were enthusiastic about doing so through a public symposium. Having already organized four national conferences since its establishment in 2003, the coalition had developed the expertise and experience to mount the symposium. Patti Black and her colleagues at Consilium most ably took care of the logistics and organization. With the addition of the papers by Terry Fenge and Alastair Campbell, this book is the formal outcome of that symposium. The saying that “only busy people have time” seems particularly apt in the case of the symposium presenters, many very senior in their respective fields of endeavour. All provided thought-provoking and easy-to-read manuscripts based on oral remarks each delivered at the symposium. We thank them all. We also thank Mark Abley and Philip Cercone at McGill-Queen’s University Press, who were immediately enthusiastic about a book to commemorate and address the long-term impacts of the Royal Proclamation of 1763. Rebecca Shrubb formatted the papers, and Alastair Campbell prepared the bibliography. Figures 7.1 to 7.5 are derived in part from earlier maps prepared by Articulate Eye Design, Saskatoon. The Walter and Duncan Gordon Foundation provided a grant to the Land Claims Agreements Coalition to assist in the publication of this book. The coalition was particularly pleased that McGill-Queen’s Univer- sity Press agreed to take on this publishing project, for this press has more Aboriginal titles to its credit than any other university press in xiv Acknowledgments

North America. We also thank our home institutions, Nunavut Tun- ngavik Inc. and Nisga’a Lisims Government, for enabling us to take on this book project, and our colleagues in these organizations and in all members of the Land Claims Agreements Coalition, far too numerous to identify individually.

Terry Fenge Nunavut Tunngavik Inc.

Jim Aldridge Nisga’a Lisims Government Acknowledgments xv

Foreword

cathy towtongie and mitchell stevens

The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve the “reconciliation of the pre-existence of Abo- riginal societies with the sovereignty of the Crown.” Supreme Court of Canada, Haida Nation v. British Columbia (Minister of Forests), 2004

The settling of comprehensive land claims and self-government agreements (such as those of Nunavut and James Bay) are important milestones in the solution of outstanding human rights concerns of Aboriginal people. They do not, in themselves, resolve many of the human rights grievances afflict- ing Aboriginal communities and do require more political will regarding implementation, responsive institutional mechanisms, effective dispute resolution mechanisms, and stricter monitoring procedures at all levels. Rodolfo Stavenhagen, United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, 2004

When issuing judgment on the land rights of the Nisga’a Nation in British Columbia in early 1973, the Supreme Court of Canada found that Aboriginal title to land did not depend on statutory law but existed prior to, and continued after, the establishment of European sovereignty over the continent. While the Court was divided on whether xvi Cathy Towtongie and Mitchell Stevens the Nisga’a Nation’s Aboriginal title had been extinguished prior to Confederation, the Government of Canada some months later announced its willingness to negotiate “comprehensive” land claims with Aboriginal peoples who had not signed historic treaties or whose title to land and natural resources had not been “superseded by law.”1 Twenty-four comprehensive land claims agreements – modern treaties – have since then been painstakingly negotiated, signed, and ratified by Aboriginal peoples whose territories comprise more than 45 per cent of Canada. Treaty making continues in British Columbia, the southern Northwest Territories, eastern Ontario, and portions of the Maritimes and Quebec. Promises in modern treaties are rights protected by Canada’s Constitution and are enforceable through the courts. Modern treaties deal with far more than land, although establishing who owns what is a central feature of them all. Each modern treaty is unique, but all provide Aboriginal signatories with tools and assets to promote cultural renewal, economic development, environmental protection, and governance. Implementing these agreements is challenging for all concerned and requires firm and enduring partnerships between Aboriginal signatories, the Government of Canada, and provincial and territorial governments, as the case may be. Rec- onciliation unfolds through the implementation of modern treaties. Much has been accomplished through these agreements, even though they have yet to be implemented to achieve their full range of goals and objectives. As a result, in November 2003, political leaders of all modern treaty organizations established the Land Claims Agree- ments Coalition (www.landclaimscoalition.ca) with the objective of persuading the Government of Canada to adopt a policy to fully implement modern treaties to achieve their objectives. The coalition recommended that the key elements of this policy include:

1 Recognition that the Crown in right of Canada, not the Depart- ment of Indian Affairs and Northern Development, is party to our land claims agreements and self-government agreements. 2 There must be a federal commitment to achieve the broad objectives of the land claims agreements and self-government agreements within the context of the new relationships, as opposed to mere technical compliance with narrowly defined objectives. This must include, but not be limited to, ensuring adequate funding to achieve these objectives and obligations. Foreword xvii

3 Implementation must be handled by appropriate senior level officials representing the entire Canadian government. 4 There must be an independent implementation and review body, separate from the Department of Indian Affairs and Northern Development. This could be the Auditor General’s department or a similar office reporting directly to Parliament. Annual reports will be prepared by this office, in consultation with groups with land claims agreements.

The coalition has received most welcome support from the Auditor General of Canada and the Senate Standing Committee on Aborigi- nal Peoples and has reached out to Canadians at large through four national conferences, the proceedings of which are posted on the coalition’s website. To further encourage a positive response from the Government of Canada, in 2008 the coalition drafted a model land claims agreements implementation policy. Modern treaties have been concluded in Canada only since 1975 with the ratification of the James Bay and Northern Quebec Agree- ment, but treaty making goes back to the earliest days of settlement by Europeans in a continent they claimed to have newly found. Early agreements dealt with peace, friendship, military alliances, and trade. A key event in the still-unfolding history of treaty making is the Royal Proclamation of 7 October 1763, through which King George III of Great Britain reorganized “his” territories in North America and the Caribbean, lands newly acquired in the Seven Years’ War (pointedly referred to in the United States as the “French and Indian War”). The Royal Proclamation reserved land west of the Appalachi- an Mountains for Aboriginal peoples and committed the Crown to negotiating agreements with Aboriginal peoples and to purchasing land used, occupied, and owned by Aboriginal peoples in advance of issuing rights to settlers and others, and to do so in public without coercion. Few Canadians are familiar with the Royal Proclamation, yet its principles underpin treaty making in British North America following the 1783 Treaty of Paris, which brought the American War of Independence to a close, and, in Canada, following Confederation in 1867. In 1973, Justice Emmett Hall characterized the Royal Procla- mation as the “Indian Magna Carta.” We were surprised, then, to learn that the Government of Canada had no plans to commemorate the 250th anniversary of the Royal Proclamation of 1763. Some in the xviii Cathy Towtongie and Mitchell Stevens

Government of Canada were nervous, we were told, about the likely negative reaction in Quebec to this anniversary. While mindful of these sensitivities, as part of our continuing commitment to educate and inform Canadians about modern treaties, the coalition sponsored and hosted a one-day symposium at the Canadi- an Museum of Civilization in Ottawa on 7 October 2013. At the symposium, which was attended by more than three hundred people, the museum authorities kindly displayed an original copy of the Royal Proclamation. The governor general of Canada and the minister of Aboriginal Affairs and Northern Development spoke at the symposium – we thank them both. A link to video from the symposium is posted on the coalition’s website. This book reflects and expands upon the presentations at the symposium. We both spoke at the symposium, welcoming participants, and were hugely encouraged by the quality of the presentations and the enthusiasm and commitment shown by all in attendance to implement treaties, both historic and modern. If the symposium is any guide, Canadians want their governments to remain true to the spirit, intent, and letter of treaties. All who share in this objective might benefit from reading this book, which we are happy to thoroughly recommend.

Cathy Towtongie President, Nunavut Tunngavik Inc., and Co-Chair, Land Claims Agreements Coalition

Mitchell Stevens President, Nisga’a Nation, and Co-Chair, Land Claims Agreements Coalition Introduction 1

keeping promises This page intentionally left blank Introduction

terry fenge and jim aldridge

John Ralston Saul characterizes Canada as a “Métis civilization” inspired by four centuries of life side by side with Indigenous peoples as well as four centuries of immigration. If this characterization is accurate, then treaties, historic and modern, provide the formal terms of the “compact, contract, covenant,” to quote historian J.R. Miller, that all Canadians – no matter their origin or background – hold in common. But many Aboriginal signatories to treaties feel that this connection is poorly understood by most Canadians. Lawyers and anthropologists may characterize treaties as building blocks of Cana- da and the “law of the land,” but few Canadians know much about these agreements and many, perhaps most, perceive them as historical remnants with limited current relevance. This is not the case. Rather, treaties are essential components of contemporary life in Canada. More than 45 per cent of Canada, mostly in the North, is subject to modern treaties negotiated since 1973, and treaty making continues. It is safe to assume that within twenty years more than 50 per cent of the country will be subject to these agreements which, reflecting their provisions, will influence, perhaps determine, the scale, pace, and timing of development in the regions to which they apply. “Modern” treaties are very much for the here and now, and for the future. Many Canadians have only a rudimentary understanding of the history of their country, but key events hundreds of years in the past continue to influence us in the twenty-first century. Certainly this is the case with the Royal Proclamation of 1763, which laid out the policy that settlers could only legally obtain land from the Crown after the 4 Terry Fenge and Jim Aldridge

Crown had purchased it from Aboriginal peoples through treaties negotiated in good faith and in public. Notwithstanding the Royal Proclamation’s stated intent and purpose, George Washington characterized it as a temporary pacifier to “quiet” the natives. Because the Proclamation made it difficult for settlers to obtain land, thus slowing their movement west, Thomas Jef- ferson, the third president of the United States, cited it as one cause of the American War of Independence. Following the 1783 Treaty of Paris, which brought this war to an end, the Royal Proclamation continued to underlie and inform treaty making in British North Amer- ica and then Canada. In 1973 Justice Emmett Hall of the Supreme Court of Canada characterized it as the “Indian Magna Carta,” a foundation document recognizing key rights of aboriginal peoples. This book is the proceedings of a one-day symposium sponsored and hosted on 7 October 2013 in Ottawa at the Canadian Museum of Civilization by the Land Claims Agreements Coalition. Chapters report events and initiatives in chronological sequence, beginning with an explanation and evaluation of the Royal Proclamation of 1763. Subsequent chapters consider historic treaties from the late eighteenth to the early twentieth centuries and, then, modern treaties concluded since treaty making was resumed in 1973. Presentations by His Excellency the Right Honourable David Johnston, governor general of Canada, and the Honourable Bernard Valcourt, minister of Aboriginal Affairs and Northern Development, immediately precede the papers. The 250th anniversary of the Royal Proclamation of 7 October 1763 provides an opportunity to remind Canadians of the agreements consequently made with Indigenous peoples upon their behalf. The broad purpose of this book is to do just that, and in so doing to encourage the federal, provincial, and territorial governments to remain true to the spirit, intent, and letter of these agreements and to implement their provisions. Brian Slattery, professor of law at Osgoode Hall at York University, sets the scene by explaining, interpreting, and discussing the application of the Royal Proclamation and the emergence, as he puts it, of Canada’s “Aboriginal Constitution.” His contribution is followed by that of Colin Calloway, professor of history and native studies at Dart- mouth College, who provides the historical context in which the Proclamation was made and looks at the events of 1763 and after- Introduction 5 wards from an American perspective. While many Canadians know little about the Royal Proclamation, Calloway suggests that Ameri- cans know even less and that, in any case, events surrounding the Proclamation have been overshadowed by the Revolutionary War, which resulted in the establishment of the United States of America. Next, Mark Walters, professor of law at Queen’s University, shows how the Proclamation has informed the evolution of the Constitution of British North America and then Canada. Walters illustrates the ongoing importance of the Royal Proclamation as a constitutional document. Ghislain Otis, professor of law and Canada Research Chair on Native Peoples and Legal Diversity at the University of Ottawa, pointedly reminds us that while many Aboriginal people view the Procla- mation positively, in Quebec, it is widely seen as an instrument of colonization and oppression. J.R. Miller, professor of history and Canada Research Chair in Native-Newcomer Relations at the University of Saskatchewan, outlines early treaty making in British North America following the American War of Independence and post-Confedera- tion “numbered” treaties that apply to the Prairies. Two of the final speakers at the symposium – Jim Aldridge and Matthew Coon Come – are personally engaged in negotiating and/ or implementing modern treaties. Their chapters are of particular importance, for they reflect the views of practitioners who understand that “tradeoffs” determine the nature and substance of agreements often negotiated in adversarial circumstances. Jim Aldridge, partner at Aldridge and Rosling and general counsel to the Nisga’a Nation, outlines key events that led to the conclusion in 1998 of the Nisga’a Final Agreement. He also addresses the attitude and position of the federal and British Columbia governments toward implementation of this agreement. Matthew Coon Come, national chief of the Assembly of First Nations from 2000 to 2003 and currently grand chief of the Grand Council of the Crees (Eeyou Istchee) and chairperson of the Cree Regional Authority, speaks of the decades-long, unrelenting struggle of his people to determine their own future. Robert Potts, partner at Blaney McMurtry and principal negotiator for the Algon- quins of Ontario, spoke at the symposium of the preliminary agreement-in-principle between the Algonquins of Ontario and the governments of Canada and Ontario. Because negotiations between these parties are ongoing, his remarks are not included in this volume but can be viewed on the website of the Land Claims Agreements Coali- 6 Terry Fenge and Jim Aldridge tion. The paper by Terry Fenge, an Ottawa-based consultant to Nun- avut Tunngavik Inc., was generated specifically for the symposium and circulated to presenters and participants in advance of the event but was not formally delivered in the symposium. It charts the evolution of the federal land claims policy since 1973 and the establishment and advocacy of the Land Claims Agreements Coalition. Fol- lowing the symposium, Alastair Campbell, a long-time commentator on northern and Aboriginal affairs and currently with Nunavut Tunn- gavik Inc., wrote the chapter on the implementation of the 1971 Alas- ka Native Claims Settlement Act. The chapter is an important addition; the Alaska settlement was referenced in the 1973 Memorandum to Cabinet considered by the Government of Canada when it decided to negotiate what it called “comprehensive” land claims by Cana- dian Aboriginal peoples. The Alaska settlement took place outside the long-standing Bureau of Indian Affairs/reservation framework and provided a potential model for the settlement of Aboriginal land claims in Canada outside the Indian Act/reserve framework. All authors were asked to prepare papers based on their oral presentations, and to do so in line with the coalition’s intent that the papers be easy to read and accessible to the public. Thus, while this book is published by McGill-Queen’s University Press and we hope that it will be used by academics in their teaching, it was prepared for the public. The book’s purpose is to inform and encourage the full and effective implementation of treaties, specifically modern treaties, between the Crown and Canadian Aboriginal peoples. 1

Address by the Governor General of Canada

his excellency the right honourable david johnston

Co-chairs, minister, elders, chiefs, friends. Thank you for your warm welcome to this important conference. Allow me to begin by acknowledging that this gathering is taking place on the traditional territory of the Algonquin Nation, which spans the provinces of Ontario and Quebec. The 250th anniversary of the Royal Proclamation is an important occasion for all Canadians – Aboriginal and non-Aboriginal alike. This extraordinary document is part of the legal foundation of Canada. It is enshrined in the Constitution Act of 1982, and it sets out a framework of values, or principles, that have given us a navigational map over the course of the past two-and-a-half centuries. The Royal Proclamation showed the way forward for the country that would become Canada. Its guiding principles – of peace, fairness, and respect – established the tradition of treaty making, laid the basis for the recognition of First Nations rights, and defined the relationship between First Nations peoples and the Crown. To quote the final report of the Royal Commission on Aboriginal Peoples: “More than a hundred years later [after the Royal Proclama- tion], in 1867, the arrangement we know as Confederation would also allow for power sharing among diverse peoples and governments. But the first confederal bargain was with First Peoples.” This anniversary provides us with a wonderful opportunity to revisit and learn about the origins of this country. 8 David Johnston

But it is also much more than a history lesson. All history reverber- ates through the ages, but the Royal Proclamation is uniquely alive in the present day. Not only is it a living constitutional document, its principles are of great relevance to our situation today, in 2013, and to our shared future. Its origins date back to our earliest days together. Since first contact, the relationship between Aboriginal and non- Aboriginal people has been of core importance to all of us. By the time of the Royal Proclamation in 1763, there was a recognition of the fact that we must work together in order to survive and thrive in this land. That formative period in our history saw several fundamental truths begin to be enshrined in law: we are all here to stay and we are better off as partners. That is the ultimate significance of the Royal Proclamation, and it is one of Canada’s most unique and important contributions to the world. Today we know: we are not diminished by our differences, but en- riched by them. As a nation, Canada has always been most successful when we recognize and respect each other and work together. When we fail to do this – when the sense of partnership and dialogue between peoples is eroded and replaced by inequality and paternalism – all Canadians suffer, Aboriginal and non-Aboriginal alike. Without a doubt, we have faced and are facing challenges, and we have much hard work to do on the road to reconciliation, but it is a road we must travel together. In modern times, the successful conclusion of comprehensive land claims agreements is an example of the principles of the Royal Procla- mation in action. I would like to commend the members and supporters of the Land Claims Agreements Coalition, which is hosting today’s symposium, for their commitment to dialogue, cooperation, and partnership. You are helping us to realize the wonderful promise of Canada. The success of these agreements is our success as Canadians – Abo- riginal and non-Aboriginal alike. As with the historic treaties of friendship and alliance signed centuries ago, they are central to our evolution and to our shared future. Address by the Governor General 9

Today, as in 1763, we must once again draw upon all we have in common and recognize our interdependence. If Canada is to achieve its potential, if we are to build the smarter, more caring society of which we dream, we must work together. The Royal Proclamation represents the very best essence of Canada and of Canadians – who value partnership, diversity, and compromise over conflict. As such, this anniversary is truly reason to celebrate, and to renew our commitment to these principles as we look ahead to the future. I encourage all Canadians to learn about and respect this essential part of our history. Thank you. 10 David Johnston

Address by the Minister of Aboriginal Affairs and Northern Development

the honourable bernard valcourt

Good morning to His Excellency the Right Honourable David John- ston, governor general of Canada, elders, leaders, members of the Land Claims Agreements Coalition, ladies and gentlemen. I am honoured to be here on Algonquin territory for this event and to commemorate the 250th anniversary of the Royal Proclamation. I would like to thank the Land Claims Agreements Coalition for organizing this symposium. I have a special connection with the lcac – you were the first organization I met with when I was appointed minister of Aboriginal Affairs and Northern Development. At that meeting, I appreciated the opportunity for an open and honest dialogue on our shared priorities of healthier, more prosperous and self- sufficient Aboriginal communities. But I will also add that I was surprised a bit, because I had in my previous incarnation as a member of Parliament in a previous government, been a witness to these negotiations, to these agreements, these modern treaties being reached. And kind of coming back twenty years later, I was surprised about this Land Claims Agreements Coalition. So I inquired immediately to my officials, my people, “What’s this?” “Well,” they said, “this is the group of the modern treaties.” I said: “They have modern treaties. Why do they need a coalition?” And they said, “Well, it’s about implementation.” And of course I said, “I want to go meet with them.” And that’s how we met, barely seven days after my appointment. And I was surprised that twenty years after my first stint with Abo- riginal Affairs as a minister of state in the ’90s, that we had issues on Address by the Minister 11 the implementation of modern treaties. I was also fully cognizant of the fact that these modern treaties will be historic treaties pretty soon. The successful negotiation of modern treaties and self-government agreements results in greater self-sufficiency, certainty, and economic opportunities for First Nations in a manner that balances the rights and interests of all concerned. I think the living proof of that statement is the beneficiaries, and the leaders and the communities that have reached these land claim agreements or self-government agreements. Today we commemorate the 250th anniversary of the Royal Procla- mation of 1763. This is a unique opportunity to recognize the importance of this foundational document to all Canadians and its crucial role in the development of our territories and to the treaty relationship that continues today. The anniversary of the Royal Proclamation is an occasion for all of us Canadians to reflect on our shared history and the essential role First Nations and all Aboriginal people have had and continue to have in the cultural identity, economic success, and military defense of our country. Britain’s military alliances with First Nations, we have to remember, were a key part of the defensive network of British North America. Dur- ing the War of 1812, First Nations warriors and Métis fighters played important roles in the defence of these British territories against invading American forces. And during the First World War alone, at least fifty medals were awarded to Aboriginal people in Canada for their bravery. We can also reflect on the principles embedded in the Royal Procla- mation, the duty our government has to consult with and work alongside First Nations peoples but also to protect Aboriginal rights across Canada. Today we consider how these principles have influenced, and continue to influence, the relationships between Aboriginal peoples in Canada and the Crown. The anniversary of the Royal Proclamation is also an occasion to reflect on our shared history. It brings a greater understanding of the relationship between Aboriginal and non-Aboriginal Canadians, and an opportunity for us to continue to move forward on a path of reconciliation. The Royal Proclamation has served as a basis of the treaty- making process throughout Canada. The protocols and procedures it established led to the orderly opening of the lands of what is today southern Ontario, and eventually of Western Canada. While its intent was to control western expansion of the colonies and formalize the relationship between First Nations people and colonists, the Royal 12 Bernard Valcourt

Proclamation also became the first public recognition of First Nations rights to lands. The issuance of the Royal Proclamation and the accompanying promises made at Fort Niagara in 1764 laid the foundation for the constitutional recognition and protection of Aboriginal rights in Canada. This understanding was formally enshrined in the Constitu- tion Act of 1982, which guarantees that the Charter would not impact any Aboriginal and treaty rights. Fundamentally, the Royal Proclamation laid out the procedures for acquiring First Nations’ land as well as the necessity of concluding agreements with First Nations people, which allowed for the peaceful and prosperous development of Canada. Prior to the 1970s, the treaties concluded covered nearly 50 per cent of Canada and established a firm and ongoing relationship between the Crown and Treaty First Nations. It is through the Royal Proclamation that treaties became an important element of nation building. Treaties remain, and they are, the highest expression of a respectful relationship between the Crown and Treaty Aboriginal people – a living, breathing relationship that compels us all to work together to find practical solutions to shared goals. Two hundred and fifty years after the Royal Proclamation was issued, the guiding principles of that decree continue to guide the negotiation and implementation of modern treaties in Canada today. Our goal is to move forward to find joint solutions that help reconcile relationships, promote self-sufficiency, and unlock economic opportunities for Aboriginal people and communities. While progress is being made, we know there is much work to be done and that requires commitment and cooperation on all sides. We all want results that make a real difference, and we need to see those results faster. The Royal Proclamation and its principles began to guide Canada along a historic path that distinguished it – and we have to all realize this, these principles began to guide Canada along a path that distinguishes us from many other places on Earth where Indigenous people are found to live and have been living there for a long, long time – such as the Doctrine of Discovery, under which states claimed to acquire sovereignty over newly encountered lands. Well, it is important to note that here in Canada, there is no place for the Doctrine of Address by the Minister 13

Discovery. It plays no part at all in our relationship with Aboriginal peoples in Canada. The anniversary of the Royal Proclamation is an occasion for honest reflection on the past 250 years and an examination of the forces that helped shape modern-day Canada. It is also an opportunity to talk about the way forward for Aboriginal people and all Canadians based on the knowledge of our shared history. Following the Royal Proclamation was the meeting in 1764 of Sir William Johnson, superintendent for Indian Affairs, with First Nations estimated at twenty thousand people, to renew the relationship with First Nation allies and to form new alliances with the former allies of France. As we approach the anniversary of that historic meeting next summer, we need to continue to work together to strengthen the foundation of our relationship. The Government of Canada remains committed to improving our relationships stemming from historic treaties, and we believe that by working together with Treaty Aboriginal people, provinces and territories, we can revitalize and enhance the treaty relationship to bring forward positive and practical outcomes. And together, we can work to build a stronger, more prosperous Canada. The government has heard the calls from across the country that we must take steps with our partners to move ahead on modern treaty implementation. Negotiating treaties is key to renewing and reconciling relationships with Aboriginal people in Canada. But as I was told when we first met, some of them feel like it’s a solemn occasion when you sign the treaty, and it’s like a wedding. But then the bride remains alone, and the other is gone, and doesn’t seem to be there to ensure that the promises are kept. So we have to work, and we are working as I speak, on this implementation issue, and we are doing this in good collaboration with the Land Claims Agreements Coali- tion. And it is important that we keep up that good work, so that we can get those results – as I said – earlier, faster. And that’s our commitment: to keep working with you. It is in a spirit of mutual respect and reconciliation that Canada continues to work with Aboriginal partners, to build and renew our historic relationship. I look forward to our ongoing work together. And I wish you all a very successful symposium. Thank you very much. 14 David Johnston

The Royal Proclamation of 1763 and the Aboriginal Constitution

brian slattery1

introduction

In a remarkable series of cases, from Haida Nation2 to Manitoba Métis Federation,3 the Supreme Court of Canada has illuminated the doctrine of the honour of the Crown and its links to Indigenous treaties and the Royal Proclamation of 1763.4 Taken together, these form the underpinnings of the Aboriginal Constitution, which parallels the federal pact among the provinces5 and provides the Constitution of Canada with some of its most ancient and enduring roots. The Supreme Court’s decision in Manitoba Métis Federation6 makes a particularly important contribution. The Court holds that the honour of the Crown was breached by its failure to implement diligently the constitutional obligations undertaken toward the Métis people in section 31 of the Manitoba Act, 1870,7 in which the Crown promised to distribute 1.4 million acres of land to the children of Métis families in Manitoba when it entered Confederation. The decision stands for several basic points. Chief Justice McLach- lin and Justice Karakatsanis8 hold that the principle of the honour of the Crown extends to all explicit constitutional obligations undertaken by the Crown to Aboriginal peoples and generates a duty of diligent, purposive fulfillment.9 This duty has two aspects: the Crown must take a broad purposive approach to the interpretation of its constitutional obligations, and, second, it must act diligently to fulfill them.10 The courts have the power to determine whether the Crown has met this standard and to issue appropriate declarations to enforce it. A claim that the Crown has violated its constitutional obligations The Aboriginal Constitution 15 cannot be barred by the passage of time. Neither statutes of limitation nor the common law doctrine of laches or unreasonable delay can prevent courts from issuing declarations on the constitutionality of the Crown’s conduct in this context.11 The ruling is of historic significance in its own right, as official recognition of long-standing Métis grievances over the way in which section 31 was implemented. However, the broader principles endorsed by the Court lend it added weight, making it one of the most meaningful Aboriginal rulings to be handed down in recent times. In this paper, I offer some thoughts on the decision’s import for the Aboriginal Constitution, focusing on the three elements identified above: the honour of the Crown, the Royal Proclamation of 1763, and Aboriginal treaties. I close with a discussion of the Crown’s duties of diligent performance and negotiation.

the honour of the crown

The Crown and its servants must conduct themselves with honour in their dealings with Aboriginal peoples.12 This principle is a fundamental postulate of Canadian constitutional law – a “core precept” that gives rise to an array of substantive obligations.13 The principle lies at the base of the Canadian constitutional order and governs the actions of the Crown from the initial assertion of sovereignty onward.14 Although the honour of the Crown has been incorporated in a number of constitutional documents, in essence it is a matter of common law.15 In Manitoba Métis Federation, the Court traces the doctrine to the early periods of European exploration and settlement when the British Crown launched claims to vast tracts of North America that were actually subject to pre-existing Aboriginal sovereignty and territorial rights.16 The tension between these conflicting claims gave rise to a special relationship between the Crown and Aboriginal peoples, which required the Crown to deal honourably with them.17 The doctrine found expression in the Royal Proclamation of 1763, which refers to “the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection.” The Court notes that the “Protection” proffered by the Crown did not arise from a pater- nalistic desire to protect Indigenous nations; rather, it was a recognition of their military strength and the need to persuade them that 16 Brian Slattery their rights would be better protected by peaceful relations than force of arms. The ultimate purpose of the honour of the Crown, says the Court, is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty. The doctrine has been enshrined in section 35(1) of the Constitution Act, 1982,18 which recognizes and af- firms existing Aboriginal rights and envisages the negotiation of just settlements of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with Aboriginal peoples. This account prompts several questions. How precisely does the honour of the Crown stem from the tension between Crown claims and pre-existing Aboriginal sovereignty? What role is played by the Royal Proclamation of 1763, and how do the treaties with Aboriginal peoples figure in the process? More broadly, what does the notion of “honour” actually require, and what sort of reconciliation does the Court envisage? These are difficult questions, which do not allow for simple answers. Nevertheless, some guidance is provided by the Royal Proclamation of 1763, as viewed in its historical context (figure 3.1).

The Royal Proclamation of 1763

The Proclamation was drafted to deal with the aftermath of the Seven Years’ War and the transfer of extensive French and Spanish colonial territories to Great Britain in the Treaty of Paris, 1763.19 It is a complex document with four distinct parts, each with its own preamble, subject matter, and discrete series of provisions. These provisions vary enor- mously, not only in content, but also in geographical scope – a point worth stressing. Some, for example, relate to the newly ceded territories, others concern existing British colonies, while still others apply to the full range of territories claimed by the British Crown in North Ameri- ca. Any attempt to define the scope of the Proclamation in a global manner flies in the face of the text itself (reproduced in Appendix I).

An Overview

The first part of the Proclamation announces the measures taken by the Crown to dispose of the recently acquired French and Spanish territories. Portions of these territories are brought within four newly The Aboriginal Constitution 17 created British colonies, while certain other parts are annexed to existing colonies. The remaining territories, by far the largest part, are left in an unorganized state. The four new colonies are Quebec, East Flori- da, West Florida, and Grenada. As shown in figure 3.1, the colony of Quebec centres on the St. Lawrence Valley, while East Florida comprises the Florida peninsula, and West Florida a strip of territory along the Gulf of Mexico. The colony of Grenada includes the Caribbean island of that name, along with the present-day islands of Dominica, Saint Vincent, Tobago, and the Grenadines. The boundaries of Quebec are defined in a narrow fashion, so as to comprise only a segment of the St. Lawrence Valley, from the St. John River and Gaspé on the east to the Ottawa Valley and Lake Nipissing on the west. Excluded are the lands around the Great Lakes and indeed most of the other territories that France claimed as part of Canada. The status of the residual area is left unresolved, as is its geographical scope. Parts of the area had long been contested between France and Great Britain and were claimed by existing English colonies under their charters. The Proclamation makes no attempt to resolve these controversies. After describing the limits of the four new colonies, the Proclama- tion announces the expansion of several old ones. The Labrador coast, from the St. John River to Hudson Strait, is placed under the “Care and Inspection” of Newfoundland, and St. John’s Island (Prince Edward Island) and Cape Breton Island are annexed to the colony of Nova Scotia. In the south, Georgia is expanded to include all lands between the modern Altamaha and St. Marys Rivers. In its second part, the Proclamation deals with the constitutions of the newly established colonies. It recites that their governors have been empowered to summon assemblies as soon as circumstances admit, and, in conjunction with council and assembly, to make laws for the peace, welfare, and good government of the colonies concerned, “as near as may be agreeable to the Laws of England.”In the meantime, the inhabitants “may confide in Our Royal Protection for the Enjoyment of the Benefit of the Laws of Our Realm of England.”Courts are to be erected for the hearing of civil and criminal causes “according to Law and Equity, and as near as may be agreeable to the Laws of England.”The governors of Quebec, East Florida, and West Florida are also empowered to settle and agree with the inhabitants for “such Lands, Tenements, and Hereditaments, as are 18 Brian Slattery

Limits of the Hudson’s Bay Company Territory

EAST

3.1 Eastern North America according to the Royal Proclamation of 1763. (Map by William Nelson) The Aboriginal Constitution 19 now, or hereafter shall be in Our Power to dispose of” and to make land grants on moderate terms. On the face of it, these provisions appear to introduce a qualified form of English law, superseding to some extent French and Spanish law, and this seems to have been the interpretation adopted in Grenada.20 But as regards Quebec, so drastic was the effect on the large settled French population, and so great the resulting confusion, that this intent was soon doubted by relevant authorities,21 later denied by a party to the Procla- mation’s drafting,22 and long after disputed in the courts.23 Whatever the effect of the Royal Proclamation on French law in Quebec, the original position in civil matters was largely restored by the Quebec Act of 1774.24 As for the areas of Canada lying beyond the boundaries of Que- bec, no provision was made for their government nor for the laws applicable to their inhabitants, most of whom were Indigenous peoples living under their own systems of government and laws. The third part of the Proclamation differs from the two preceding parts both in subject matter and scope, providing for free land grants to officers and soldiers who had served in the Seven Years’ War in America. The provisions are directed at the governors of “Our said Three New Colonies,” namely Quebec, East Florida, and West Florida, and also to “all other Our Governors of Our several Provinces on the Continent of North America.”Note that the wording is comprehensive and prima facie covers Nova Scotia, Newfoundland, and Rupert’s Land, as well as the Thirteen Colonies to the south. The final and longest part of the Proclamation contains detailed measures regarding Indigenous peoples and their lands – measures that are our main concern here. This part comprises six distinct provisions, which vary significantly in content and coverage. To understand them, we need to step back for a moment and consider the historical context in which they arose.

Historical Background

From early colonial times, the British Crown cultivated relationships with a series of powerful Indigenous nations living in the territories adjacent to the British settlements on the Atlantic seaboard – the Mi’kmaq, the Iroquois Confederacy, the Cherokee, and many others.25 These relationships took many forms – treaties of peace and friendship, military alliances, trading partnerships, land cessions, mutual 20 Brian Slattery guarantees of rights, and seasonal parleys. Over time, they gave rise to a corpus of customary law that was neither wholly Indigenous nor Euro- pean but a kind of inter-societal law that bridged the gulf between Abo- riginal and English legal and political systems. As such it formed a species of common law – a law that was common to the parties. This law provides the backdrop for the Royal Proclamation of 1763 and remedies some of its gaps and ambiguities.26 A second factor influencing the Proclamation was the French Crown’s departure from the imperial field, leaving behind an extensive network of Indigenous allies and trading partners stretching from the St. Lawrence Valley westward into the heart of the continent.27 The character of French–Indigenous relations was described in the landmark case of Connolly v. Woolrich, decided by Justice Monk in 1867: “[The French] entered into treaties with the Indian tribes and nations, and carried on a lucrative and extensive fur trade with the natives. Neither the French Government, nor any of its colonists or their trading associations, ever attempted, during an intercourse of over two hundred years, to subvert or modify the laws and usages of the aboriginal tribes, except where they had established colonies and permanent settlements, and, then only by persuasion.”28 Many of these Indigenous nations had little love for the British Crown and were deeply suspicious of its intentions. As the Chippewa leader, Minavavana, told an English trader: “Englishman, although you have conquered the French, you have not yet conquered us. We are not your slaves. These lakes, these woods and mountains, were left to us by our ancestors. They are our inheritance; and we will part with them to none.”29 Similar views were expressed by some Wabash River Indi- ans: “You tell us, that when you Conquered the French, they gave you this Country. That no difference may happen hereafter, we tell you now the French never conquered, neither did they purchase a foot of our Country, nor have [they a right] to give it to you, we gave them liberty to settle for which they always rewarded us and treated us with great Civility.”30 Indigenous discontent came to a boiling point in the spring of 1763. War belts circulated from village to village, with the Ottawa war chief, Pontiac, giving voice to the underlying anger: “It is important for us, my brothers, that we exterminate from our lands this nation which seeks only to destroy us. You see as well as I that we can no longer supply our needs, as we have done, from our brothers, the French.”31 In May, a coalition of Aboriginal nations launched the The Aboriginal Constitution 21 armed struggle known as Pontiac’s War, which quickly spread across an enormous swathe of territory from the Great Lakes south to the Ohio Valley. One after another, British forts in the western interior fell to Indigenous forces, leaving only Fort Pitt, Detroit, and Niagara. Five hundred British soldiers and numerous settlers lost their lives in the conflagration, and Detroit itself was under siege for six months.32 Even before the outbreak of war, the British government had been formulating a plan to assure Indigenous nations of the Crown’s good intentions. This appears from a letter written in January 1763 by Lord Egremont33 to the commander in chief in North America, Sir Jeffrey Amherst. Egremont refers to the threat of an Indian war erupting over settlements made on Indian lands near the Susquehanna River and states that the king had it “Much at heart to conciliate the Affection of the Indian Nations, by every Act of strict Justice, and by affording them His Royal Protection from any Incroachment on the Lands they have reserved to themselves, for their hunting Grounds, & for their own Support & Habitation.”34 In March 1763, Egremont sent a circular letter to the governors of Virginia, North Carolina, South Carolina, and Georgia, as well as to the superintendent for Southern Indians. He notes that the departure of the French and the Spaniards will “undoubtedly alarm, & increase the Jealousy of the Neighbouring Indians.” He speaks of the need to gain their confidence and goodwill and to dispel the false notion that “the English entertain a settled Design of extirpating the whole Indi- an Race, with a View to possess & enjoy their Lands.” Egremont orders the officials to call a joint meeting with the chiefs of all the major southern tribes, so as to reassure them of Britain’s good intentions and to promise “a continual Attention to their Interests, & … a Readi- ness upon all Occasions to do them Justice.”35 News travelled slowly at that era, and the first reports of Pontiac’s War only reached England in July. The news confirmed the British government’s fears and gave greater impetus to the plans already underway, resulting in the publication of the Royal Proclamation on 7 October 1763.36

The Indian Provisions

The final part of the Proclamation is introduced by a preamble that sets out the Crown’s overall vision of its relations with Indigenous nations: “And whereas it is just and reasonable, and essential to Our 22 Brian Slattery

Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.” This preamble has several striking features. First, the Crown makes it clear that the Proclamation is prompted not simply by considerations of justice but also by military necessity. Unless the British are able to maintain peaceful relations with neighbouring Indian nations, the security of the American colonies would be at risk. Peace is “essential” to British interests. Second, while the Crown asserts ultimate sovereignty over extensive regions in the American interior, styling them “Our Dominions and Territories,” it also recognizes that these territories are actually in the possession of numerous Indigenous nations, which are described as “connected” with the Crown and living under its “Protection.” The connections to which the text alludes consist of the long-standing ties of treaty, alliance, and trade between Indigenous nations and English colonies, and the similar network that the Crown had ostensibly inherited from the French – now in a shambles due to the war. Third, the Crown tacitly acknowledges the autonomy of the “Nations or Tribes of Indians” as distinct political entities with their own political structures and laws. It recognizes their rights to the territories in their possession and undertakes to prevent them from being molested or disturbed in those lands. It thus repudiates the doctrine of terra nullius, according to which no one owned the land prior to the arrival of Europeans.37 The Crown confirms that Aboriginal peoples are entitled not only to their village sites and cultivated fields but also to the “Hunting Grounds” from which they draw their suste- nance and support – in Lord Egremont’s phrase “the Lands they have reserved to themselves, for their hunting Grounds, & for their own Support & Habitation.” Overall, then, the preamble contemplates a quasi-federal arrangement in which a protective cloak of imperial rule is thrown over a host of autonomous Indigenous nations, living within their own territories, with their own laws and constitutions. These nations are not conquered peoples nor are they subject to direct British rule. Rather their connections with the Crown take the form of treaties, which are periodically negotiated and renewed, often in annual sessions. The The Aboriginal Constitution 23 treaties make up the framework of the structure, which would otherwise collapse like a house of cards, as Pontiac’s War demonstrated. The text continues with several specific measures designed to protect Indian lands. It prohibits the governors of Quebec, East Florida, and West Florida from granting survey warrants or patents for lands located beyond the boundaries of their colonies. It further stipulates that no governor or commander in chief “in any of Our other Colonies or Plantations in America” shall presume “for the present, and until our further Pleasure be known” to grant survey warrants or patents for “any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantick Ocean from the West and North- West, or upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.” The Proclamation alludes here to a boundary line drawn along the watershed of the Appalachian mountain range, which runs in a long chain southward from the Gulf of St. Lawrence to Florida.38 Land grants west of this line are prohibited. Significantly, the Crown also forbids grants “upon any Lands whatever” that have not been ceded by their Aboriginal possessors – regardless of their location, whether east or west of the boundary line. The next two paragraphs contain measures designed to protect Indian lands from settler encroachment. The Crown declares its will, for the present, to reserve “under Our Sovereignty, Protection, and Dominion” for the use of the said Indians “all the Lands and Territo- ries not included within the Limits of Our said Three New Govern- ments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the West- ward of the Sources of the Rivers which fall into the Sea from the West and North West, as aforesaid.” The Proclamation forbids British subjects from purchasing these lands or establishing settlements on them without the Crown’s licence. It orders the removal of all persons who have settled in this reserved area “or upon any other Lands, which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid.”Once again the text protects unceded Indian lands generally, not just those located in the specified areas. The Crown draws attention to the “great Frauds and Abuses [that] have been committed in the purchasing Lands of the Indians, to the 24 Brian Slattery great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians.” In order to prevent such abuses in the future, and to the end that “the Indians may be convinced of Our Justice, and determined Resolution to remove all reasonable Cause of Discontent,” the text strictly forbids private persons from making purchases “of any Lands reserved to the said Indians, within those Parts of Our Colonies where We have thought proper to allow Settlement.”The Crown goes on to provide that “if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Com- mander in Chief of our Colonies respectively within which they shall lie.” This regime of public purchases of Indian lands by way of treaty was not, of course, a new creation, but reflected established law and practice in many colonies.39 Note, once again, that these provisions are not restricted to particular colonies but apply to British colonies across the board. The remaining provisions deal with questions of trade and jurisdiction. The Crown opens the Indian trade to all British subjects, on condition that a licence is obtained and certain regulations observed. It requires the governors “of all Our Colonies respectively” to grant such licences without fee or reward. Finally, the Proclamation makes provision for the apprehension of suspected criminals who take refuge “within the Territories reserved as aforesaid for the Use of the said Indians,” and for their return “to the Colony where the Crime was committed” to stand trial. Enough has been said to indicate the diversity of the measures making up the Royal Proclamation of 1763, a diversity as pronounced in subject matter as in the range of colonies and territories affected. Nev- ertheless, as our survey has revealed, all the main protective provisions in the final part of the Proclamation are worded so as to apply to unceded Aboriginal lands generally, and not simply to those located within certain colonies or territories.

The Treaty of Niagara

The Proclamation reflects an expansionist imperial viewpoint – one far more favourable to British interests than the facts warranted. The true situation may be gleaned from the Treaty of Niagara, which was concluded the following year, in the summer of 1764.40 The treaty was The Aboriginal Constitution 25 negotiated in an immense gathering of Indigenous peoples – the largest ever seen in the northeast to that date – including representatives of nations as far west as the Mississippi, as far north as Hudson Bay, and perhaps as far as east as Nova Scotia.41 There were some two thousand chiefs in attendance and over twenty-four Indigenous nations represented. In the course of the negotiations, the British representative, Sir William Johnson, presented the great belt of the Covenant Chain, stating:

Brothers of the Western Nations, Sachims, Chiefs and Warriors; You have now been here for several days, during which time we have frequently met to renew and Strengthen our Engagements and you have made so many Promises of your Friendship and Attachment to the English that there now only remains for us to exchange the great Belt of the Covenant Chain that we may not forget our mutual Engagements. I now therefore present you the great Belt by which I bind all your Western Nations together with the English, and I desire that you will take fast hold of the same, and never let it slip, to which end I desire that after you have shewn this Belt to all Nations you will fix one end of it with the Chipeweighs at St. Mary’s whilst the other end remains at my house, and moreover I desire that you will never listen to any news which comes to any other Quar- ter. If you do it, it may shake the Belt. I exhort you then to preserve my words in your Hearts, to look upon this Belt as the Chain that binds you to the English, and never to let it slip out of your hands. Gave the Great Covenant Chain, 23 rows broad and the year 1764 worked upon it, worth about 30 pounds.42

The spirit of equality and fair dealing that informs this treaty is quite palpable. Indeed in a subsequent letter, Sir William Johnson scoffs at any notion that the treaty involved the subjection of the Aboriginal nations concerned.43 We need to draw a basic distinction, then, between the constitutional structure envisaged in the Proclamation and its application to particular Aboriginal nations. From the perspective of the British Crown, the Proclamation constituted a constitutional template designed to govern and regularize its relations with Indigenous nations – not only 26 Brian Slattery for the present but also for the future.44 But the extent to which the template applied to specific Indigenous nations depended on two factors: whether those nations had entered into treaties that acknowledged or consented to the Crown’s protective role; or whether, in the absence of such consent, the nations had factually passed under British rule. In other words, the constitutional structure envisaged in the Proclamation could come into effect either de jure, through Treaties, or de facto, through the actual imposition of British governmental authority. As the Crown’s power and influence grew over the next century and the tide of British rule spread steadily westward, the Proclamation became a kind of Magna Carta that applied presumptively to Aborig- inal peoples falling under the Crown’s sway, whether by way of treaty or through factual processes.45 When the Crown entered into relations with new Aboriginal nations and assumed governmental responsibility for them, it did so against a backdrop of fundamental constitutional norms flowing from the Proclamation of 1763 and the body of inter-societal law that it reflected. Whether the Crown actually respected these norms is, of course, another matter. What does the Supreme Court have to say about this complex sweep of historical events and the contrasting roles played by treaties and power politics? And how does all this relate to the honour of the Crown?

treaties and the negotiated constitution

In Manitoba Métis Federation, the Supreme Court stresses the contrac- tual and consensual nature of the process that gave rise to the Con- federation of Canada.46 The Court notes that Canada is a young nation with ancient roots. The country was born in 1867 by the “consensual union” of three colonies – United Canada, Nova Scotia, and New Brunswick. Soon after, the Canadian government embarked on a policy to bring the territories west of Ontario within the boundaries of Canada and to open them up to settlement. This meant dealing with the Indigenous peoples living there, which consisted mainly of two groups – the First Nations and the Métis. The Court recounts that the government’s policy regarding the First Nations was “to enter into treaties with the various bands, whereby they agreed to settlement of their lands in exchange for reserva- tions of land and other promises.” The policy with respect to the Métis The Aboriginal Constitution 27 population was less clear. Settlers began pouring into the region that is now Manitoba, displacing Métis social and political control and leading to resistance and conflict. To resolve the conflict and ensure peaceful annexation of the territory, the Canadian government entered into negotiations with representatives of the Métis-led provi- sional government of the territory. The result was the Manitoba Act, 1870, which made Manitoba a province of Canada. In a significant passage, the Court states that the promises made in this act “represent the terms under which the Métis people agreed to surrender their claims to govern themselves and their territory, and become part of the new nation of Canada.”47 In essence, the case before the Court involves “a collective claim of the Métis people, based on a promise made to them in return for their agreement to recognize Canada’s sovereignty over them.”48 This account draws tacit parallels between the process whereby the provinces entered the federal union and the process whereby Indige- nous peoples became partners in Confederation. In both cases, the Crown usually proceeded by way of negotiation and agreement, a route not without its difficulties and conflicts. In both cases, it made solemn promises in order to secure the other party’s agreement to enter Canada. In both cases, the resulting pact was embodied in fundamental constitutional accords – the Constitution Act, 1867 in the case of the provinces,49 the Manitoba Act in the case of the Manitoba Métis, and treaties in the case of other Aboriginal peoples.50 In Haida Nation, the Supreme Court explains that treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty.51 It goes on to say:

Put simply, Canada’s Aboriginal peoples were here when Euro- peans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.52

In these passages, the Court highlights the need for Aboriginal consent – not simply as a matter of justice, but as a matter of constitu- 28 Brian Slattery tional duty flowing from the honour of the Crown. Reconciliation cannot be achieved by governmental or judicial fiat, but only through genuine negotiations leading to treaties. In the process, the prior sovereignty of Aboriginal peoples is reconciled with Crown claims of sovereignty. The result is something new – arguably a form of shared sovereignty.53 The fundamental kinship between treaties and Constitution Acts is emphasized in Manitoba Métis Federation, where the Court discusses section 31 of the Manitoba Act, 1870. The passage merits reproduc- tion at length.

To understand the nature of s. 31 as a solemn obligation, it may be helpful to consider its treaty-like history and character. Section 31 sets out solemn promises – promises which are no less fundamental than treaty promises. Section 31, like a treaty, was adopted with “the intention to create obligations … and a certain measure of solemnity” … It was intended to create legal obligations of the highest order: no greater solemnity than inclusion in the Consti- tution of Canada can be conceived. Section 31 was conceived in the context of negotiations to create the new province of Manito- ba. And all this was done to the end of reconciling the Métis Abo- riginal interest with the Crown’s claim to sovereignty.54

In essence, then, the Supreme Court presents the vision of a negotiated Constitution – a federal union knit together with the consent of the peoples affected, both Indigenous and newcomer. This process unfolded in a wide variety of historical settings – including the seminal conferences at Quebec and Charlottetown, the negotiations with Métis leaders, and the solemn treaties concluded with other Indige- nous peoples under the auspices of the Royal Proclamation. Most of these historical negotiations took place in an imperial context, at a time when the British Crown still claimed ultimate authority over the country. Canada is now, of course, an independent state, even if its independence was achieved by stealth – gradually and qui- etly.55 The British Crown has morphed into the Canadian Crown, and the governor general has assumed an important role in ensuring the integrity of the Constitution and the pacts and treaties that make it up. Just as the Constitution Acts – mostly enacted by the British Par- liament – are interpreted in a fashion that befits Canada’s independent status, likewise another set of imperial instruments – the Royal The Aboriginal Constitution 29

Proclamation of 1763 and the historical treaties – must be interpreted in a way that takes account of the post-colonial character of Cana- da and the status of First Peoples as partners in Confederation.56

the duty of diligent performance

As seen earlier, Manitoba Métis Federation holds that the honour of the Crown is engaged by constitutional obligations undertaken by the Crown to Aboriginal peoples.57 Two basic duties arise in this context. The Crown is required, first, to take a broad purposive approach to the interpretation of the constitutional obligations. Second, the Crown must act diligently to fulfill them.58 We will refer to these con- straints globally as “the duty of diligent performance” or simply “the constitutional duty.” The first branch of the constitutional duty – that of broad purposive interpretation – has long been recognized in the jurisprudence.59 The second branch – diligent performance – is more novel. The Supreme Court cites a number of precedents to support it,60 but they deal mainly with matters of interpretation, and it seems clear that new ground is being broken. The Court notes that not all interactions between the Crown and Aboriginal peoples engage the honour of the Crown. In the past, the constitutional duty has been found to exist in two main instances. The first is Indigenous treaties, “where the Crown’s honour is pledged to diligently carrying out its promises.”61 The second is section 35(1) of the Constitution Act, 1982, where the Crown must act honourably in defining the rights it guarantees.62 Nevertheless these are not the only instances in which the constitutional duty exists. Reviewing the precedents – and in particular those dealing with treaties – the Court holds that the duty of diligent performance arises whenever four elements are present: (1) an intention to create obligations; (2) a certain measure of solemnity; (3) an overar- ching purpose of reconciling Aboriginal interests with the Crown’s sovereignty; and (4) a promise explicitly owed to an Aboriginal group.63 The Court observes that in some instances the constitutional obligation may arise after a course of consultation similar to treaty negotiations. Nevertheless, it seems clear that the Court does not view this as a necessary element. Where a Crown undertaking to Aboriginal peoples meets these four criteria, the honour of the Crown is engaged, giving rise to the 30 Brian Slattery constitutional duty of diligent performance. The Court goes on to apply these criteria to section 31 of the Manitoba Act, 1870 and holds that it satisfies all four elements.64 How do these criteria apply to the Royal Proclamation of 1763? As seen earlier, the Proclamation makes solemn and explicit undertakings to Indigenous nations to shield their territories from unlawful settlement, with the overall purpose of reconciling these nations to the Crown’s assertions of sovereignty. It follows that the Proclamation is a paradigmatic example of an instrument that engages the honour of the Crown. As Justice Binnie observes in Beckman: “The obligation of honourable dealing was recognized from the outset by the Crown itself in the Royal Proclamation of 1763, in which the British Crown pledged its honour to the protection of Aboriginal peoples from exploitation by non-Aboriginal peoples.”65 The same conclusion holds true of Indigenous treaties, as Manito- ba Métis Federation makes clear. The Court observes that the duty of diligent performance “has arisen largely in the treaty context,” and it goes on to conclude that the duty exists “whether the obligation arises in a treaty, as in the precedents outlined above, or in the Constitu- tion, as here.”66 Indeed, it would be strange if treaties did not meet the conditions set out by the Court, which are drawn mainly from treaty case law.

the duty to negotiate

We saw that the Supreme Court emphasizes the role of negotiations and consent in the formation of Canada. But it also recognizes that in some instances the consent of Aboriginal peoples was absent or taint- ed. In such cases, the Crown is required to engage in good faith negotiations with the peoples affected, in order to achieve a just settlement of their claims.67 This duty has two aspects. First, the Crown has a positive legal duty to do all that is reasonably possible to initiate the negotiating process and to pursue it to a successful conclusion. Sec- ond, in the course of the negotiations, it has the obligation to conduct itself with honour and integrity, avoiding even the appearance of sharp dealing.68 It could be argued that the Crown’s legal duties in this context are confined to the second aspect. While there may be a moral or political obligation on the part of the Crown to engage in negotiations, there cannot be a legal obligation. It takes two parties to negotiate – and the The Aboriginal Constitution 31 participation of both sides must be voluntary. It follows, so the argument goes, that the Crown cannot be legally bound to do something that it cannot bring about on its own. A second problem relates to the enforcement of such an obligation. Unless judges are willing to take on the role of actively supervising the Crown’s conduct, how can they ensure that the Crown actually engages in substantive negotiations, as opposed to merely showing up at the table? Thus, says this argument, the Crown’s legal duties are necessarily limited to the manner in which it conducts negotiations, once these get underway. Such arguments, however, have not carried the day. The Supreme Court has gone out of its way to indicate that the Crown is under a substantive legal duty to engage in negotiations and not merely to conduct itself honourably in any negotiations that take place. Con- sider the Court’s words in the Haida Nation case: “Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims.69 [...] The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.”70 In effect, the Crown’s obligations spring from its broader duty to determine, recognize, and respect Aboriginal rights. This duty is constitutional in nature and finds a place in section 35 of the Constitu- tion Act, 1982. As Haida Nation explains: “Section 35 represents a promise of rights recognition, and ‘[i]t is always assumed that the Crown intends to fulfill its promises’ (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests.”71 This constitutional promise is violated not only when the Crown fails to negotiate honourably, but also (and more fundamentally) when it refuses to negotiate at all or places unwarranted obstacles in the path of negotiations. Of course, as with the tango, it takes two to negotiate, and the Crown cannot be held responsible for the laggardly feet of an unwilling partner. Moreover, the distinction between the duty to negotiate and the duty to negotiate honourably can be a fine one. But these factors do not relieve the Crown of its obligations in this area. The Crown is bound to take all reasonable measures within its 32 Brian Slattery power to initiate and successfully pursue negotiations, and to conduct itself honourably in the process. If it fails to perform this duty diligently, a Court may issue declarations to this effect.72

conclusion

The Aboriginal Constitution forms a vital part of the Constitution of Canada – as vital as the Federal Pact among the Provinces and the Canadian Charter of Rights and Freedoms. Section 35(1) of the Con- stitution Act, 1982 recognizes important elements of the Aboriginal Constitution; however, that section is not its source, which lies in the links between Indigenous peoples and the Crown established in the early days of European settlement – relations recognized in the Royal Proclamation of 1763 and given concrete form in treaties with the Crown. In 1698, the Onondaga sachem, Sadeganaktie, stated in the course of negotiations with the English at Albany:

All of us sit under the shadow of that great Tree, which is full of Leaves, and whose roots and branches extend not only to the Places and Houses where we reside, but also to the utmost limits of our great King’s dominion of this Continent of America, which Tree is now become a Tree of Welfare and Peace, and our living under it for the time to come will make us enjoy more ease, and live with greater advantage that we have done for several years past.73

This Tree of Welfare and Peace is neither Indigenous nor British, but a joint creation, encompassing both Indigenous peoples and newcomers, all of whom recline in the coolness of its shade. The Aboriginal Constitution 33

The Proclamation of 1763: Indian Country Origins and American Impacts

colin g. calloway

As the other essays in this volume attest, in Canada the Royal Procla- mation of 1763 is recognized as crucially important in establishing the protocols, policies, and procedures of the enduring treaty relationship with Aboriginal peoples. That’s not the case in the United States, where the Proclamation was set aside in the Revolution. In US history books and in the mythology about the nation’s founding, the Proclamation usually receives little attention and less understanding. Textbooks often list it as just one in a series of blunders by British ministers who were hopelessly out of touch with reality and the aspirations of the American colonists. In popular culture and movies, the Proclamation is not even mentioned; the Revolution and Indepen- dence are portrayed as a foregone conclusion – it’s only a matter of time before freedom-loving Americans throw off the dominance of an empire represented by arrogant red-coated martinets who are not very bright. But many of the primary causes and conditions that gave rise to the Proclamation lay south of the Great Lakes; the Proclama- tion was an important step on the road to the American Revolution, and some of the policies it outlined were incorporated into US Indi- an policy after the Revolution. The Proclamation was part of a package of measures by which the British government endeavoured to reform, administer, and pay for a huge new North American empire. In standard retellings of American history, the Revolution was a war against British tyranny and taxes and a war for freedom, but the Revolution was also, at least in part, a war 34 Colin G. Calloway about Indian land, and it happened, at least in part, because of British attempts to keep the colonists off Indian lands. That effort was not a knee-jerk reaction by ministers in London who knew nothing about what was happening in America; several years in the making, it was an aspect of British policy that responded to developments on the Amer- ican frontier and in Indian country. The Proclamation of 1763 was an imperial instrument, but it was one shaped by Indian people, Indian power, and Indian actions. Colonists had been intruding into Ohio Indian country since at least the Treaty of Lancaster in 1744, when Virginia manoeuvred the negotiations to secure Iroquois recognition of its claims to the area beyond the Alleghenies. A group of Virginia gentry then formed the Ohio Company in 1748; gentry in the Virginia House of Burgesses awarded them land grants in the Ohio Valley, and colonists began to press across the mountains. The British population in North America was increasing by leaps and bounds; Benjamin Franklin said it was doubling every twenty-five years. Speculators who could obtain large swaths of Indian land and then sell it in parcels to colonial settlers stood to make huge profits.1 Traders from Pennsylvania and Virginia established posts and built relations with Indian hunters and cus- tomers in the Ohio Country. But that country was the vital link between French settlements in Canada and in the Illinois Country and Mississippi Valley, and France responded to the increasing Eng- lish activity in the area with a show of force. Escalating tensions erupted in open conflict in 1754, the spark that ignited what was known in America as the French and Indian War, which grew into the global conflict known as the Seven Years’ War. In 1755, General Edward Braddock led a British army against Fort Duquesne, the French stronghold at the Forks of the Ohio. Braddock alienated the colonial assemblies he had to deal with, but more importantly he alienated the Native peoples of the region. A Delaware chief named Shingas asked the general what he intended to do with the land if and when he had driven out the French. Would the Indi- ans who were friends of the English “be Permitted to Live and Trade Among the English and have Hunting Ground sufficient To Support themselves and Familys?” Braddock replied emphatically and disdain- fully that the English would “Inhabit & Inherit the Land” and that “no Savage Should Inherit the Land.” Shingas and his fellow chiefs replied that “if they might not have Liberty To Live on the Land they would not Fight for it.” Some joined the French; most waited to see Indian Country Origins and American Impacts 35

“How Things wou’d go Between Braddock and the French in their Engagement.”2 Braddock and his army suffered a disastrous defeat at the hands of the French and their Indian allies. Shingas exaggerated, but Indian power mattered. Three years later, General John Forbes, with Cherokee allies and without Indian opposition, led another army against the fort and took it – or at least what was left of it: the French abandoned it and blew it up. Although he shared many of Braddock’s attitudes and antipathy towards Indians, Forbes grasped their importance, and the role of Indian diplomacy, to his campaign. When Indians “switched sides,” Europeans attributed it to their “fickle” and mercenary nature: Indi- ans, they said, watched to see which way the winds were blowing and sold their services to the highest bidder. The British complained about the amount they had to expend in gift giving to buy Indian support. But they also understood that, in the escalating competition for the Ohio Country, the Indians’ consistent goal was to maintain their independence and keep their homelands intact. (The British should have understood – the Indians told them often enough.) The key to Forbes’s success lay in neutralizing Indian power in the struggle with France by promising that the Indians’ lands would be protected when the war was over, which was precisely what Braddock had apparently refused to do. As a first step toward weaning the Delawares, Shawnees, and Ohio Iroquois away from the French, Pennsylvania dispatched a Quaker missionary named Christian Frederick Post as an envoy to get the Indians to attend a treaty at Easton in Pennsylvania in 1758. It was not an easy task. Why did the British and French come and fight on Indi- an land instead of waging war back home in Europe? Indians asked him; “This makes every body believe, you want to take the land from us by force, and settle it.”3 But by painstaking diplomacy and working with key Delaware leaders Shingas, Pisquetomen, and Tamaqua, Post succeeded. Around five hundred Indians representing a dozen nations turned up at Easton in October. Knowing the Indians would never agree to peace as long as they feared that Britain intended to take the Ohio Country from them, Pennsylvanian negotiators gave the Indians the assurances they needed: the British did not want to settle the land, only to open it to British traders and defend it against the French. Indeed, Pennsylvania actually promised to return some lands previously ceded by the Iroquois.4 At the same time as the Indians wanted to keep settlers out of the Ohio Country, they realized that 36 Colin G. Calloway they needed to let traders and their merchandise in. The Treaty of Eas- ton seemed to secure them both objectives. Having achieved the goals for which they had fought, they likely regarded the treaty as the end of the war for them. Shingas agreed to allow Forbes’s army to advance without interference. (The peace treaty did not, of course, bind the Odawas, Ojibwas, and other nations around the Great Lakes, who were not party to it.) The French Empire beyond the St. Lawrence rested on a network of alliances with Native nations. French forts in the west depended for their defense less on palisades and firepower than on allegiance with the Indian people who lived outside the forts. Once those allegiances were removed, as they were at the Treaty of Easton, even a substantial edifice like Fort Duquesne became essentially indefensible, and the French abandoned it. George Washington, who was in Forbes’s army, said the capture of the fort came as a “great surprise to the whole army – and we can not attribute it to more probable causes than those of weakness, want of Provisions, and desertion of their Indians.”5 The British had other advantages that helped them turn the tide of the war – the quality, quantity, and price of their trade goods; command of the seas; the leadership of William Pitt; and key victories – but they had learned what the French knew: that in Indian country imperial policies often depended on negotiation and agreement. Consequently, the British took steps to protect Indian lands from settler invasion well before 1763. When General Jeffery Amherst captured Montreal in 1760, the Articles of Capitulation agreed upon with the Marquis de Vaudreuil stated that France’s Indian allies were to “be maintained in the Lands they inhabit, if they chose to remain there; they shall not be molested on any pretence whatsoever, for having carried arms, and served his most Christian Majesty.”6 In 1761, Colonel Henry Bouquet, as commander of Fort Pitt, issued a military proclamation prohibiting British subjects from settling west of the Appalachians unless they had written permission from the general or the governor of their colony, and he refused bribes from members of the Ohio Company who offered him a share of company stock in return for letting them sell titles to squatters already occupying “company land” in Indian country. Army officers ejected squatters; they even burned their cabins. In November 1761, the Board of Trade urged King George III to do something to stop British colonists settling on land the Indians had not yet sold – the board called it a “most dangerous Tendency.”7 Indian Country Origins and American Impacts 37

But British appreciation of the pivotal power of Native allies during the war diminished once the war was won. At the Treaty of Paris in 1763, France gave up its North American empire, ceding everything east of the Mississippi to Britain. (Its territory west of the Mississippi went to Spain, to keep it out of British hands.) British garrisons now occupied posts formerly held by the French. Fort Pitt, built on the ruins of Fort Duquesne but a much more formidable structure, was an imposing symbol of British imperial presence. Meanwhile, Gener- al Amherst terminated gift giving to Indians. The British saw this decision – like the decision to tax the colonists – as a logical and necessary measure for cutting costs at the end of a global war that had left the nation virtually bankrupt. The Indians regarded it as a declaration of hostile intentions and a breach of British assurances that they wanted to trade with Indians and not to steal their land. Friends and allies gave and received gifts as testimony of their mutual need, generosity, and commitment to maintain and refresh good relations. Withhold- ing gifts at the same time as the redcoats were embedding themselves in Indian country signaled that Britain intended to seize Indian country, not protect it. The spiritual teachings of a Delaware prophet, Neolin, further galvanized Indian suspicions. War belts circulated through Indian country even before the Treaty of Paris was signed. In the spring of 1763, and in a war named after the Odawa chief Ponti- ac, multiple Indian leaders and multiple Indian nations took up arms against the king’s men. They took every British post west of the Appalachians except Detroit, Niagara, and Fort Pitt, which they besieged; they sent settlers scrambling back east in panic, and they almost destroyed Britain’s hold on the interior of North America. Indian actions at Detroit, Michilimackinac, and Niagara sent rever- berations across the Atlantic and back again. The Indians’ war of independence against the British Empire set in motion a chain of events that would produce another war of independence, by American colonists, twelve years later. Pontiac’s War did not create the policy of restricting settlement on Indian land – officials in London were already studying proposals to impose a western boundary on settlement – but it did push the British government into action. Secretary of State Lord Egremont “was almost entirely ignorant about America” and relied on Henry Ellis, a former governor of Geor- gia, for advice. Ellis argued that if settlers spread unchecked into the vast American heartland, Britain would eventually lose control over them. Holding settlement east of the Appalachians would limit the 38 Colin G. Calloway costs of administering new territories, prevent the colonies from growing to the point where they became ungovernable, encourage settlers to move north to Nova Scotia or south to the Floridas, and remove Indian apprehensions about British intentions. “Such an Instance of our goodwill to the Indians, would fix them more firmly in our Inter- est, than all the Talks we can give them, or all the Presents we can bestow on them.”8 Egremont told Amherst that the king wanted to win the Indians over “by every Act of strict Justice, and by affording them His Royal Protection from any Incroachment on the Lands they have reserved to themselves, for their hunting Grounds, & for their own Support & Habitation.”9 Lord Shelburne, president of the Board of Trade, envisaged a boundary line as a device for regulating not elim- inating frontier expansion, something that would be abolished as old colonies grew and new ones were created, but, like Ellis, he also hoped to relieve population pressure in colonies abutting the Appalachians by diverting settlers north and south.10 The Earl of Hillsborough, who replaced Shelburne as president of the Board of Trade in early Sep- tember, likewise hoped that a western boundary would keep American settlers within the British commercial orbit and dependent on British manufactures; the farther west settlers migrated, the more difficult it would be for them to import British goods and the more tenuous their ties to Britain. On 16 September, Lord Halifax, incorporating sugges- tions from two proposals drafted earlier in the summer, presented a plan for the Royal Proclamation to the cabinet. By 4 October, Hills- borough “had touched up the draft, run the document by the attorney general for legal amendments, and returned it to Halifax.” The Privy Council gave its pro forma approval and on 7 October the king officially promulgated it.11 By the standards of eighteenth-century government the Proclamation was issued at breakneck speed. The Proclamation organized the newly acquired territories into four new colonies – Quebec, East and West Florida, and Grenada – and established the Appalachian Mountains as the boundary line between Indian and colonial lands, reserving for Native peoples a vast territory stretching from the Appalachians to the Mississippi. It was Britain’s first attempt to administer the new American empire it had won. To restore and maintain order on the frontier, Indian relations needed to be directed from London by a government taking a global view of North American affairs, not by individual colonies pursuing their individual agendas. The Proclamation stipulated “that no private Person do presume to make any Purchase from the said Indians of any Indian Country Origins and American Impacts 39

Lands reserved to the said Indians within those parts of our Colonies where, We have thought proper to allow Settlement.” Only the Crown’s representatives acting in formal council with Indian nations could negotiate land transfers, and only licensed traders would be permitted to operate in Indian country. By such measures, the government sought to prevent “all just Cause of Discontent, and Uneasiness” among the Indians in the future. The governors of Quebec and the Floridas were authorized to grant land to help populate their new colonies. Veterans of the war were entitled to free land on a graduat- ed scale according to rank.12 In its haste to issue the Proclamation, the government had no time to survey the actual patterns of Indian-white settlement – there were still Indian peoples and lands east of the line and Europeans already west of the line, including French settlements in the Illinois Country. Ministers latched on to the Appalachians as a clear demarcation line that could be adjusted when time and circumstances allowed; the goal was to regulate westward expansion, not to stop it in its tracks. Nevertheless, the Proclamation reaffirmed for Indian peoples the commitment the British had made in 1760 to protect France’s Indian allies in the lands they inhabited, and it reiterated British assurances that colonists would not encroach on Indian lands. At the same time, it opened the way for the Crown to acquire land. The Crown claimed a right of pre-emption to those lands – i.e. an exclusive right to purchase if and when the Indians chose to sell. In law professor Stuart Banner’s view, the Proclamation completely overhauled the process of acquiring Indian land. In the past, individuals had bought land from Indians in all kinds of circumstances. Now only the Crown and its official representatives could purchase Indian land; only tribes could sell land, and it must be done in open treaty council. What was more, by banning sales of Indian land to individuals and claiming the right of pre-emption, the government placed severe limitations on what Indians could do with their land. “After 1763,” Banner writes, “the Indians could do less with their land than the English could do with theirs.” English landowners could sell their land to anyone they chose; Indians, the government said, could sell their land only to the government. Now that Indians were no longer allowed to sell to private purchasers, “it became easier for settlers to think of the Indians’ rights to the land as something less than full ownership.”13 With France removed from the scene, the Proclamation outlined the foundations for building a new relationship between Britain and 40 Colin G. Calloway the Indian nations. As Anishinaabe scholar John Borrows points out, the Proclamation must therefore be read and understood in tandem with the exchange of wampum belts that took place at Niagara the following summer. In the winter, Indian delegates carrying copies of the document and strings of wampum traveled Indian country from the Northeast to the Midwest, summoning the tribes to a council. Two thousand Indians, representing twenty-four nations from Nova Scotia to the Mississippi and as far north as Hudson Bay, assembled at Niagara in July and August 1764. William Johnson read the provisions of the Proclamation as “the terms of what he hoped would prove a Pax Britannica for North America” and the Indians pledged themselves to peace. Gifts and wampum belts were exchanged to seal the agreement, with the Gus Wen Tah, the two-row wampum belt, reflecting the Indians’ understanding of the Niagara treaty and the Proclama- tion as ushering in a new era of alliance between equals based on mutual respect and interdependence.14 American colonists did not see things that way. Those who had crossed the mountains were now squatting illegally on Indian land and might be removed by British troops. But squatters were used to that risk, and the Proclamation had limited effect on them, especially as the British army lacked the resources to patrol and maintain the line. Many simply ignored the Proclamation Line. Four years after the Proclamation, Indians complained settlers were making “more incroachments on their Country, than ever they had before.”15 Speculators, on the other hand, could not ignore the Proclamation. They had pinned their hopes on being able to turn their speculations into fortunes now that the war was won, the French were expelled, and the way west was open to settlers. But their ability to make profits depended on being able to convey clear title to the lands in which they invested, and they could not, now, buy and sell western lands legally. The new measures adopted in 1763 “infuriated Virginia land speculators.” It seemed a new British and Indian barrier had replaced the old French and Indian barrier. Colonists who had fought and bled in the war were not about to be deprived of the fruits of victory by a distant government. Land speculators would not watch their investments in Indian country slip away. The clash of French and British ambitions gave way to a clash of British and American ambitions.16 In Virginia, postwar depression aggravated years of falling tobacco prices, but men like George Washington continued to live the extrav- Indian Country Origins and American Impacts 41 agant life of a tidewater planter by buying goods from England – on credit against the expected profits from their sales of tobacco in Eng- land. By 1763, Washington was deeply in debt to London and looking for a way out. Selling western lands to the settlers who should have flooded across the mountains would have provided it. On 3 June 1763, Washington – already a member of the Ohio Company – joined other Virginian planters and formed a new land company, the Missis- sippi Company. They petitioned the Crown for a massive 2.5 million acres of territory handed over by France at the Treaty of Paris four months earlier. Washington’s timing, however, was unfortunate – he formed the Mississippi Company on the same day that Ojibwa warriors seized the British fort at Michilimackinac, and events were already in motion to stop the very land sales on which Washington and his cronies staked their future.17 The Royal Proclamation effectively doomed their scheme. It was a first step in their alienation from the empire for which they had recently fought. Washington, Thomas Jefferson, Arthur Lee, Patrick Henry, and others denounced British interference as tyranny. The freedom they began to demand from Britain included the freedom to acquire and sell Indian land at will. George Washington did not give up on land speculations – nor did anyone else. Frustrated by British policy on the ground in America, the Ohio Company and other speculators turned their efforts to changing British policy at the highest levels in London. Instead of trying to buy land themselves, they lobbied the government to buy it for them; once it was purchased the government could then grant it to the speculators who would in turn divide it up and sell or rent it to settlers. These gentry had connections in high places, and the Ohio Company had shareholders in Britain as well as America. Some members of the government were also stakeholders in the Ohio Company or other land syndicates. It was common practice to offer shares in land companies to people in positions of power who could decide, or influence those who decided, whether and which land could be purchased. These would be the men – more than those trying to carve out new homes on the frontier for their families – who would determine whether the Proclama- tion Line would endure. Writing to his friend and business associate (read, fellow land speculator) William Crawford in 1767, Washington urged a hasty and surreptitious collaboration:

[T]o secure some of the most valuable Lands in the King’s part, which I think may be accomplished after a while, notwithstand- 42 Colin G. Calloway

ing the Proclamation that restrains it at present and prohibits the settling of Them at all[,] for I can never look upon that Proclama- tion in any other light (but this I say between ourselves) than as a temporary expedient to quiet the Minds of the Indians and must of course fall in a few years especially when those Indians are con- senting to our Occupying the Lands. Any person therefore who neglects the present opportunity of hunting out good Lands and in some measure marking and distinguishing them for their own (in order to keep others from settling them) will never regain it, if therefore you will be at the trouble of seeking out the Lands I will take upon me the part of securing them as soon as there is a possibility of doing it … By this time it may be easy for you discover, that my Plan is to secure a good deal of Land.18

Land speculators and their agents and associates lobbied in London to have the Proclamation Line abandoned or at least moved. Almost from the beginning there were plans to renegotiate the boundary. As those negotiations needed to be carried out by the Crown’s official representatives, it fell to John Stuart, British superintendent for Indian affairs south of the Ohio, and Sir William Johnson, superintendent north of the Ohio, to carry them out. In the fall of 1768, Stu- art negotiated a treaty with the Cherokees that effected a westward movement of the boundary to the Kanawha River. The home government had authorized Johnson to secure an extension of the boundary down the Ohio River as far as the Kanawha, where it would meet up with the new Cherokee boundary. Johnson met with some two thousand Iroquois over a period of several weeks at the Treaty of Fort Stan- wix in New York. Pennsylvania, Virginia traders seeking compensation in land for losses they had suffered in the war and various other interested parties sent representatives. It was the largest Indian treaty in colonial America. At the end of the negotiations, in exchange for £10,000 in money and merchandise, Johnson and his associates obtained a cession of territory that stretched 400 miles beyond the Kanawha to the mouth of the Cherokee or Tennessee River. It was a deal that suited just about everyone at the treaty. Britain got a new boundary; Virginia got access to Kentucky; Johnson and his sidekick George Croghan got land for themselves (although Johnson got his knuckles rapped for exceeding his instructions). For their part, the Iro- quois received British confirmation of their claims to lands in the Indian Country Origins and American Impacts 43

Ohio Valley and effectively diverted the oncoming tide of settlement away from Iroquois country and down the Ohio. The people most affected by the treaty, however, did not make the treaty. The Shawnees and Cherokees both claimed the ceded territory as hunting grounds and denied that the Iroquois had any right to sell it. When colonial settlers rushed into the ceded lands, the Indians living there treated them as trespassers and expelled or killed them. The Shawnees tried to build a multi-tribal coalition to resist the British- Iroquois land deal. The new boundary lines pointed like an arrow into the heart of Indian country, and Kentucky soon became a bloody battleground. Virginia defeated the Shawnees in battle in 1774, and the Shawnees grudgingly accepted the Ohio River as the new boundary. But that same year, in a move to restrict colonial settlement, Parliament passed the Quebec Act, making all the land west of the Ohio part of Quebec. There would be no unrestricted access to Indian land under the British Empire. When Virginians declared independence from Britain in 1776 they immediately adopted a state constitution that nullified both the Proclamation of 1763 and the Quebec Act. Freed from the tyranny of imperial restraints, Virginian gentry could get back to the business of selling Indian land to farmers. The American Revolution was a war for independence, but it was also a war over Indian land and who should get it. American rebels cited British attempts to limit their access to Indian land as evidence of tyranny – among the grievances against King George the Declara- tion of Independence included “raising the conditions of new Appro- priations of Lands.” Although most Indians initially tried to stay out of a conflict they regarded as a civil war, most eventually sided with the British, in large part because the Crown had tried to control access to Indian land and the rebels seemed determined to throw Indian lands open to sale and settlement. But at the end of the war, Britain sold its Indian allies down the river. By the terms of the Peace of Paris in 1783, Britain recognized American independence and handed over to the new United States all territory south of the Great Lakes, north of Florida, and east of the Mississippi. The Indians who inhabited this territory were neither included in the treaty nor consulted about its terms. They were left to make their own terms with the victorious Americans. Britain’s Indian allies were outraged. They were not defeated subjects of King George; they were independent nations still 44 Colin G. Calloway fighting to defend their territorial boundaries as set by colonial treaties to which at least some of them had been party. “These people,” said Governor Frederick Haldimand of Canada, “have as enlightened Ideas of the nature & Obligations of Treaties as the most Civilized Nations have, and know that no Infringement of the treaty in 1768 … Can be binding upon them without their Express Concurrence and Consent.” Indians saw the peace treaty made in Paris as an act of betrayal “that Christians only were Capable of doing.” The British responded lamely that they had only ceded the right of pre-emption to Indian lands to the United States.19 For Indians the fighting did not end in 1783; it merged into a longer struggle to halt American expansion at the Ohio River – the boundary established at Fort Stanwix. That war lasted another twelve years. The United States in 1783 found itself in a situation not unlike that of Britain in 1763: virtually bankrupt with a huge new empire on its hands. Western lands – Indian lands – represented the new nation’s best resource and hope for the future. Acquiring and selling those lands would provide homes for citizens, fill the empty treasury, and ensure the growth and survival of the young republic. The new nation would be built on Indian homelands. Now that the states had thrown off the authority of Britain, they were no longer legally bound by the Proclamation and its restrictions. Nevertheless, many states continued to prohibit private purchases, for the same reason the British government had. And the new federal government asserted its authority over Indian affairs and Indian lands, for the same reasons the British government had. The concept of concentrating purchases of Indian land in the hands of the government persisted as best practice and wise policy.20 The new republic struggled with the same problem that had confounded the old empire – how to control the frontier and hold back a land rush. The government feared that simply opening up the new territory to a flood of squatters in a chaotic scramble for lands would threaten the social order of the young republic before it was properly established. “To suffer a wide-extended country to be overrun with land jobbers, speculators, and monopolizers, or even scattered settlers is inconsistent with that wisdom and policy which our true interest dictates, or which an enlightened people ought to adopt,” George Washington declared in 1783. Instead, the government envisioned building the empire of liberty through an orderly process and Congress collabo- Indian Country Origins and American Impacts 45 rated with land speculators to coordinate national agendas and private interests.21 In 1783, the Continental Congress prohibited unauthorized settlement or purchase of Indian lands beyond the borders of any state. It then dispatched treaty commissioners in Indian country who negotiated, or more accurately dictated, a series of treaties – with the Six Nations in 1784, with the Delawares, Wyandots, Ojibwas and other Ohio nations in 1785, and with the Shawnees in 1786 – in which the United States claimed tribal lands “by right of conquest.” Indians who were not present at the treaties denounced those who were and refused to accept the terms. As 1786 drew to a close, delegates from the Iroquois, Shawnees, Delawares, Hurons, Ojibwas, Potawatomis, Odawas, Piankeshaws, Weas, Miamis, and Cherokees gathered in council near Detroit and adopted a united stance. In a forceful message to Congress, they declared that the previous treaties were invalid and that they would only recognize land cessions “made in the most public manner” and approved by the united tribes.22 Faced with the prospect of an all-out war with still-formidable Indi- an nations, Congress had little choice but to retreat from its high- handed policy of dictating treaties by right of conquest. Secretary of War Henry Knox recommended returning to the British practice of purchasing Indian lands in open council. In an effort to avoid the bloody scramble for land that had occurred south of the Ohio River in Kentucky, the Confederation Congress (successor to the Continen- tal Congress) issued a series of land ordinances, culminating in the Northwest Ordinance of 1787. The Northwest Ordinance established a blueprint for national expansion that harnessed and directed the potentially divisive forces of western expansion. The approximately 220,000 square miles of territory northwest of the Ohio River would be surveyed, divided into districts, townships, and lots, sold, and settled. “Not less than three nor more than five States” should be formed in the territory. A territory would have its own territorial government, and once its population reached sixty thousand, could petition to become a state. Eventually Ohio, Indiana, Illinois, Michigan, and Wis- consin entered the Union as states carved from the Northwest Terri- tory, and more than thirty states entered through the process the ordinance outlined. The Northwest Ordinance established the territorial system of the United States, committed the nation to indefinite expansion, and created a national market in Indian lands. At the same 46 Colin G. Calloway time, however, it pledged that the United States would observe the “utmost good faith” in its dealings with the Indians. Their lands would not be taken from them without their consent and they would not be attacked except “in just and lawful wars authorized by Con- gress.”23 Since the government’s idea of fair conduct and just peace always entailed Indians giving up land that the tribes were committed to defending, “just wars” were inevitable. In 1790, Congress passed a measure that bore some striking simi- larities to the Proclamation of 1763. The Indian Trade and Intercourse Act stipulated that traders in Indian country must be licensed by Con- gress and that “no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.” Like the Proclamation, the act sought to minimize frontier conflict by cen- tralizing land transactions, and declared invalid any land deals not approved by Congress.24 In words that must have sounded reminiscent of British assurances after the Proclamation of 1763, George Washington – who had railed against the Proclamation – now assured the Iroquois: “The General Government only has the Power to treat with the Indian Nations, and any Treaty formed and held without its Authority will not be binding. Here, then, is the Security for the Remainder of your Lands. No State, nor Person, can purchase your Lands, unless at a general treaty, held under the Authority of the Unit- ed States.”25 But frontier settlers, squatters, and speculators seldom shared their government’s concern for orderly expansion, and individual states, resentful of attempts by the federal government to restrict their rights, frequently made treaties that never received congressional approval. Like the British imperial administration in 1763, the United States government found that proclaiming order on a distant frontier was a far cry from being able to enforce it and restrain its citizens as they flooded onto Indian lands. Indians resisted American expansion and American good intentions. In 1790 and 1791, a confederacy of Indian nations north and west of the Ohio defeated American armies that invaded their territory. (In fact, in 1791 they destroyed the only army the United States had.) As the US scrambled to build a new army, it resumed negotiations on a boundary line between Indian country and American set- Indian Country Origins and American Impacts 47 tlement. US commissioners held out some prospect of a compromise line – mainly as a ploy to buy time and divide the confederacy – but the Shawnees and other hard-liners refused to accept anything other than the Ohio River boundary. In council with American commissioners in the summer of 1793, they made their position clear:

We never made any agreement with the king, nor with any other nation, that we would give to either the exclusive right to purchase our lands, and we declare to you that we consider ourselves free to make any bargain or cession of lands whenever and to whomsoever we please. If the white people, as you say, made a treaty that none of them but the king should purchase of us, and he has given that right to the United States, it is an affair which concerns you and him, and not us. We have never parted with such a power.26

It was a position the United States Supreme Court categorically denied thirty years later. General Anthony Wayne returned with a new American army in 1794, defeated the confederacy, and held a treaty at Greenville, Ohio the next year. Chiefs who had fought to defend the Ohio boundary since before the Revolution acknowledged that the fight was lost and ceded most of Ohio to the United States. But the new boundary line established at Greenville was no more effective in checking American expansion than the Proclamation Line of 1763 or the Fort Stanwix boundary of 1768 had been. “Scarcely anything short of a Chinese Wall, or a line of Troops will restrain Land Jobbers, and the Incroach- ment of Settlers, upon the Indian Territory,” said George Washing- ton.27 Treaties increased dramatically in number and frequency – more than two hundred between 1795 and 1840. In the first decade of the nineteenth century, Tecumseh’s confederacy revived Indian hopes for maintaining a boundary between Indian country and the United States – in fact, for an independent Indian state in the heartland of America. But Tecumseh’s vision of America was incompatible with America’s vision for Indian lands. Tecumseh was killed and, in treaty after treaty, Indian homelands were transferred into American real estate. In 1823, the United States Supreme Court heard the case Johnson v. McIntosh, a suit brought by a group of land speculators to establish the validity of some pre-Revolutionary purchases of Indian land in what 48 Colin G. Calloway is now Illinois and Indiana which the United States subsequently obtained at the Treaty of Greenville and then sold to other parties. The purchases were illegal under the Royal Proclamation at the time they were made, and Virginia and the United States had both rein- stated the ban on private land purchasing as well, so the land speculators were chasing a long shot, and the case was marred by collusion, corruption, and conflict of interest. But in writing the court’s decision, Chief Justice John Marshall, himself an accomplished land speculator, took the opportunity to pronounce on Indian land rights and shape Indian policy. The Supreme Court affirmed American inheritance of rights of discovery from Britain and deployed the doctrine of discovery to legitimize national expansion. The 1763 Proclamation constituted “an additional objection to the title of the plaintiffs.” It also provided precedent for Marshall’s assertion that Indians possessed the land but did not “own” it in the way English or Americans owned land. Native people retained a limited right to occupy the land, but they were not free to dispose of it as they wished or to whom they wished. The “exclusive power to extinguish the Indians’ right of occupancy” lay with the federal government, just as, the Proclamation had asserted, it previously lay with the Crown. Indians could sell their interests in lands to other parties but only with the explicit approval of the federal government or its agents. Indians were, in effect, tenants or “guests in their own ancestral homelands, whose invitation could be revoked unilaterally by the new hosts.”28 As the United States ramped up the pressure on Indian lands and began the process of ethnic cleansing known as Indian removal, the provisions of the 1763 Proclamation that protected Indian lands were long forgotten. But the provisions according the central government the exclusive right to extinguish the Indians’ right of occupancy had been incorporated into federal Indian policy. In a nation built on Indian land, the dispossession of Indian peoples was a national endeavour. The federal government extinguished their rights of occupancy in treaties, agreements, and executive orders that bore little resemblance to the procedures, protocols, and respectful relationships imagined in the Proclamation of 1763 and at a rate unimaginable in 1763. The Aboriginal Constitution 49

The Aboriginal Charter of Rights: The Royal Proclamation of 1763 and the Constitution of Canada

mark d. walters1

A number of years ago, I visited the Museum of Anthropology at the University of British Columbia, and there I found among the displays of Indigenous artifacts a modern sculpture made by the Gitxsan artist Eric Robertson which consisted of two large cedar poles that could be turned by pushing carved wooden hands that extended from each pole. Around one pole was wrapped a copper plate covered in small lettering that read, at the top, “A Proclamation … George the Third, by the Grace of God, King of England,” and, at the bottom, “Given by my hand at St. James Palace, October 7th, 1763.”2 I was impressed, and continue to be impressed, by the sense of irony captured by Robert- son’s sculpture. Robertson had incorporated the promise to protect “Indian” land rights found in the Royal Proclamation of 1763 into an artistic depiction of an Aboriginal game involving outstretched hands, and in doing so he managed to appropriate the unilateral voice of imperialism and to transform it into a transcendent voice of justice capable of cutting across time and cultural difference.3 The sense of transcendence and irony captured by Robertson’s sculpture seems to me important to a full understanding of the significance of the Royal Proclamation of 1763 for the constitutional rights of Aboriginal peoples in Canada today. There is irony in the fact that a colonized people might turn to the edicts of the colonizer to find justice – that they might appropriate the law of the colonizer as a law by 50 Mark D. Walters which the colonizer might be judged. It is, however, an irony that dis- appears once the transcendence of principle is understood and the possibility for cross-cultural justice is accepted. Commissioners investigating Indian affairs in 1844 noted that colonial officials in Canada adhered to the Proclamation of 1763 and did not consider themselves “entitled to dispossess the Indians of their lands, without entering into an agreement with them, and rendering them some compensation,” and that, as a result of the practice of treaty making that ensued, Abo- riginal peoples themselves came to see the Proclamation as “their Char- ter.”4 There was, then, an Aboriginal perspective on the Proclamation, and a sense that it was at least partly theirs. Starting in the 1880s, judges picked up on the idea that the Procla- mation was seen by Aboriginal people as “their Charter.”5 For lawyers trained in the common law tradition before 1982, a reference to a “charter” of rights would naturally bring to mind the Great Charter, or Magna Carta, of 1215, and indeed it became common to refer to the Proclamation as the “Magna Carta of Indian rights in North America.”6 Despite these passing references to the fact that Aboriginal peoples themselves saw the Proclamation as “theirs,” however, judges did not consider the possibility that there might be a distinctive Aboriginal understanding of the Proclamation that might somehow shape or inform the interpretation of Canadian constitutional law. For judges, the Proclamation has always been a unilateral projection of sovereign will extending from imperial centre to colonial periphery. Of course, judges have not agreed on what exactly the sovereign willed. Some judges saw the Proclamation as a royal expression of goodwill without legal force, others thought it was repealed a mere eleven years after it was made, while others considered it to be a powerful piece of imperial legislation. But whether judges saw the Proclamation as a tepid and transient expression of royal pleasure or as a powerful and enduring expression of imperial law, they did not think to ask what legal significance, if any, flowed from the fact that the Aboriginal peoples of Cana- da saw the Proclamation as “their Charter.” Things might have changed in this respect after 1982. True, section 35 of the Constitution Act, 1982, which protects the “existing aboriginal and treaty rights of the aboriginal peoples of Canada,” does not refer explicitly to the Royal Proclamation of 1763, and nor does section 52, which defines the “Constitution of Canada” as “includ[ing]” a specified list of written instruments. However, section 25 of the Canadian Charter of Rights and Freedoms, which was enacted as part The Aboriginal Charter of Rights 51 of the Constitution Act, provides that the rights and freedoms guaranteed by the Charter shall not be interpreted “so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including … any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763.” On the eve of the patriation of the Canadian Con- stitution in 1982, in a case that several Aboriginal nations brought in the English courts to prevent the enactment of constitutional reforms for Canada that they thought undermined their rights and aspirations, the renowned English judge Lord Denning conceded that the provisions of the Proclamation concerning Indian lands contained “general statements which are wanting in particularity,” but he did not doubt that they formed part of the Constitution of Canada and that their details would “like other Bills of Rights … have to be worked out by the courts.”7 Over thirty years have passed since Lord Denning made this obser- vation – and in one sense at least he has been proven wrong. The rest of the Constitution of Canada is now regarded by judges as a “living tree,”8 and this tree has been, in effect, nurtured by liberal and purposive judicial interpretation that emphasizes underlying moral values and objectives over cramped literal readings of the text. Not so in relation to the Proclamation’s provisions on Aboriginal rights. If anything, courts have become ever more narrow in their reading of the Proclamation as a source of written law. The incorporation of one Charter by the other Charter seems to have made little difference. One might even go so far as to say that whatever its status politically, morally, or socially, today the Proclamation of 1763 appears legally to be a dead branch on the “living tree” that is the modern Constitution of Canada. But this is only part of the story. Once the implicit, indirect, and unwritten effects of the Proclamation are considered, its true constitutional significance can be appreciated. In examining the status of the Aboriginal provisions of the Royal Proclamation of 1763 in Canadian constitutional law today, it is important to recall the various dimensions of law’s existence. Law exists, in one sense, in the form of a “scratch of a pen” on parchment (to use the phrase Colin Calloway invokes in relation to the European transactions of 1763)9 – or, we might say today, as inkjets on paper or digital forms appearing on com- puter screens. The written, scriptural, or chirographic dimension of law is a powerful one, a product of “the hermeneutic impulse – the 52 Mark D. Walters human need to create and interpret texts.”10 The association of law with the statutes, decrees, edicts, or proclamations of a sovereign law- giver – the association of law with sovereign commands that are made tangible through promulgation – fits with those theories of legal positivism emphasizing law as a conscious and creative human act. But law also exists in another, unwritten sense. The letter of the law is frequently in tension with law’s ambitions for itself as a system of justice, ambitions that are manifested more often than not through forms of implicit or customary law, through common law, or through unfolding traditions of legal interpretation or discourse.11 These two conceptions of law sometimes work in tandem and sometimes in opposition. The conception of law as the command of the sovereign promulgated by some written text and the conception of law as the instantiation through legal discourse of principles of political morality to which people – or peoples – are committed are two conceptions of law that engage together over time in a dynamic process of connection and dis- connection, of productive synthesis and destructive fragmentation. In terms of old charters, whether the Magna Carta of 1215 or the Abo- riginal Magna Carta of 1763, this means, paradoxically, that law can be both dead and alive. An old instrument like the Proclamation may be dead as a command of law scratched on parchment, but its ethic may be very much alive and integrated into our broader sense of legality and constitutionalism. Indeed, if we accept that Indigenous legal traditions shape the understanding of constitutional law in Canada – and we should – then perhaps viewing the Proclamation as a source of unwritten constitutional law may make perfect sense.12

When considering the legal status of the Royal Proclamation of 1763 in Canadian law today, it is important to remember that the Procla- mation was an omnibus constitutional instrument with different provisions for different purposes, and therefore different legal foundations depending upon which provisions are examined. With the British defeat of France in the Seven Years’ War and the subsequent cession of various French colonies, including “Canada,” to Britain by the Treaty of Paris, 1763, Britain acquired and/or consolidated its dominion – if only from the European perspective – from the Hud- son’s Bay watershed through the Great Lakes region to the Gulf of Mexico east of the Mississippi River. The point of the Royal Procla- The Aboriginal Charter of Rights 53 mation of 1763 was to organize, at least temporarily, these territories. The Proclamation constituted new British colonies and colonial governments for East and West Florida, Grenada, and Quebec, introducing local representative legislatures and English law for each. It was only in the last seven paragraphs of the Proclamation that the “Indi- an” question was addressed. This section began with the following preamble: “And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.” The Crown in Council then proceeded to establish rules in relation to two separate categories of Indian land. First, a massive area that included the Great Lakes region and the lands west of the Atlantic watershed was “for the present” set aside for Indian nations, and all settlements and purchases of Indian lands within this area were prohibited unless “our especial leave and Licence” was first obtained. Second, in all other parts of British North America, where settlements were to be permitted, the Proclamation provided that “no private Person” was to purchase land from Indians, but that “if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name,” – that is, for the Crown – “at some public Meeting or Assembly of the said Indians” to be held for that purpose by the governor or commander in chief of the colony in which the lands were located. Once a purchase was made through this process, the Crown (or local governors representing the Crown) would be in a position to grant lands to settlers. Reading the two sets of rules together, it appeared as though the Proclamation contemplated a dynamic process according to which the temporary boundary line blocking westward settlement would be gradually lifted and unceded Indian land would shift from the first legal category to the second legal category – or, in other words, lands that were at first subject to the rules prohibiting purchases and settlements would eventually fall under the rules permitting settlements following the purchase of the land by the Crown in public treaty councils. The settlement of the North American interior would be, in other words, a measured and ordered process under the supervision of the imperial Crown rather than a chaotic free-for-all 54 Mark D. Walters whereby settlers and local officials scrambled for land and provoked violent responses from Indigenous peoples. Of course, these rules were expressed as general rules: they had to apply not just in territories acquired from France but within all colonies, both old and new, throughout British North America, if their underlying policy objectives were to be secured.13 In terms of the legality of the Proclamation, perhaps the first question to ask is simply this: Could an order of the king made on the advice of his Privy Council (i.e. an imperial order in council) legally have accomplished so much? By this time, it was a settled principle of constitutional law that Parliament was the sovereign and supreme legislature for all of the king’s dominions, and that while the king, acting alone or in Council, may have had certain executive powers by virtue of the royal prerogative (i.e. those inherent powers associated with the Crown recognized by the common law), the king could not generally legislate except by assenting to bills passed by the two Hous- es of Parliament.14 But there were exceptions. In the case of Campbell v. Hall (1774), Chief Justice Lord Mansfield affirmed an ancient rule according to which the Crown could legislate without Parliament in those territories acquired by conquest or cession, at least until the territory was given its own representative legislature.15 In Campbell v. Hall, the provisions of the Royal Proclamation of 1763 establishing the colony of Grenada and granting to it a representative assembly were held to be a valid form of legislation on this ground, with the result that any further laws for that colony could only be made by either the local colonial assembly or by Parliament, and an attempt by the Crown to impose a tax upon the colony by prerogative instrument was therefore legally invalid. Clearly, the provisions of the Royal Proclamation of 1763 (or at least certain of them) represented a very powerful source of imperial constitutional law that was judicially enforceable even against instruments issued subsequently by the Crown in Council. The principle articulated in Campbell v. Hall may explain the status of the Proclamation as valid prerogative legislation in places like Grenada or Quebec that were conquered and ceded countries. But it cannot explain the Proclamation’s legal status in relation to the Indi- an nations that had not been conquered or whose territories had not been ceded, and nor can it explain the validity of the rules on Indian affairs that applied within the boundaries of older British colonies. The Aboriginal Charter of Rights 55

Indeed, if anything, Campbell v. Hall was authority for the proposition that prerogative legislation like the Proclamation purporting to apply within colonies that already had legislative assemblies was void. There were, however, two other legal arguments in favour of the Crown’s authority to make rules on Indian affairs by prerogative instrument. First, by the common law the Crown was lord paramount – the owner of the underlying title – of all land within its dominions and thus the source of all real property titles, and the Proclamation could thus be seen as a valid set of rules commanding how colonial governors were to exercise the prerogative powers of the Crown in relation to the acquisition and subsequent granting of Crown lands in North America.16 Second, the common law recognized that the Crown had special prerogative powers both in relation to foreign nations, including non- European, non-Christian nations, and also in relation to national or regional units found within its empire.17 In fact, Aboriginal nations within the North American territories claimed by the British seemed to have a legal status, from the British legal perspective at least, some- where between that of foreign nations and that of distinct national components of the larger imperial order; treaty relations with them were, as Chief Justice Antonio Lamer would later rule, “very close to those maintained between sovereign nations.”18 As commissioners investigating Indian affairs in 1856 observed, “By the Proclamation of 1763 territorial rights, akin to those asserted by Sovereign Princes, are recognised as belonging to the Indians, that is to say, that none of their land can be alienated save by treaty made publicly between the crown and them.”19 So although the conduct of Indian affairs had been left largely to local colonial governments throughout much of the seventeenth and early eighteenth centuries, there were solid legal arguments supporting the move by the Crown, which began in the mid-1750s with the appointment of two superintendents for Indian affairs, to reassert direct imperial control over Indian policy, even within colonies with established representative legislatures. As Edmund Atkin, later Indian affairs superintendent for the southern district, argued in 1755, relations with Indian nations were treaty based and therefore matters of state falling within the royal prerogative of the Crown rather than within the jurisdiction of local colonial governments.20 Indeed, there was judicial authority for this general proposition. The infamous case of Mohegan Indians v. Connecticut 56 Mark D. Walters

(1705–73) established that the Crown could, by prerogative instrument alone, legally intervene within a colony to protect those Indian nations with which treaty relations were maintained on the grounds that these nations were not wholly subject to the local legal systems of the colonies within which they resided.21 Still, it must be acknowledged that the Crown’s prerogative power to regulate relations with Aboriginal peoples within established colonies was controversial. Atkin may not have known about the Mohegan Indians case, but, even if he had, he would likely have maintained his final conclusion – which was that although the Crown might legally enact general rules for Indian affairs by prerogative instrument applicable throughout British North America, it was politically advisable for these rules to be given statutory force through an imperial Act of Parliament. This logic seems to have been accepted at the highest levels. However, it was not until after the Seven Years’ War that the imperial government was in a position to contemplate legislative reform of this nature – and then, just as that war ended, another one began. The crisis that precipitated the inclusion of the Aboriginal rights paragraphs within the Proclamation of 1763 – the uprising of Aboriginal nations throughout the Great Lakes region during the summer of 1763 that became known as Pontiac’s War22 – did not allow time for an Act of Parliament. The paragraphs were hur- riedly drafted and the Proclamation was shipped off to North Ameri- ca in great haste, with Sir William Johnson, the Crown’s superintendent of Indian affairs for the northern parts of North America, instructed to “make the best Use of every particular [within the Proclamation] which relates to the Indians” to allay the concerns that had led to the war.23 The Proclamation’s paragraphs on Indian affairs were thus a temporary and incomplete solution to a complex problem, and the imperial government fully intended to replace them with detailed and comprehensive legislation enacted through an Act of the Imperial Parliament – just as Atkin had advised some eight years before. Almost as soon as they had completed drafting the Proclamation, the Lords of Trade and Plantations, the committee of the Privy Council then responsible for imperial and colonial policy, set to work on drafting a bill on Indian affairs to be put to Parliament to replace the paragraphs found in the Proclamation.24 The result was the so-called “Plan of 1764.”25 The draft bill not only affirmed the basic rules found in the Proclamation relat- The Aboriginal Charter of Rights 57 ing to the acquisition of Indian lands, but also established a statutory foundation for the imperial Indian department, provided a regulatory system for the fur trade, addressed questions of criminal justice in Indi- an territories, and established a statutory framework for maintaining political relations with Aboriginal governments within British dominions. The recognition of Aboriginal self-government and customary laws of governance was to have been explicit. The plan assumed, as its drafters said, that “the manner in which the Indians regulate their civil Concerns will suffice to show that a steady and uniform attachment to, and Love of Justice and Equity is one of their first Principles of Government.”26 A system of selecting chiefs created for the nations of the southern district was, according to article 19 of the draft bill, to have been implemented in the northern district (which included what is now much of central and eastern Canada) only “as far as the Nature of the Civil Constitution of the Indians in this District … will admit.”27 The Plan of 1764 is, one might say, what the Royal Proclamation of 1763 would have looked like had its drafters had more time before its promulgation. As such, it is an important – but neglected – contextual source for interpreting the historic meaning of the Proclamation. The Plan of 1764 is also the Act of Parliament for Indian relations that might have been but never was. The British Empire lurched from one crisis to the next – and the next crisis, the near-revolt by colonists incensed over taxes imposed by the Stamp Act of 1765, made enactment of a controversial imperial law on Indian affairs practically impossible at the time.28 The provisions on Indian affairs found within the Royal Proclamation of 1763, which were admittedly incomplete, thus acquired a permanency not originally contemplated, though without statutory grounding these provisions remained controversial. Throughout the 1760s, Johnson did his best to implement the Proclamation of 1763 and the Plan of 1764, all the while pleading for statutory powers and complaining that colonists only laughed when he told them to obey the Proclamation’s rules protecting Indi- an land rights.29 Whether settlers within the thirteen colonies that were about to rebel against British rule would have had any greater respect for an Act of Parliament, however, is a very good question. For its part, the imperial government certainly thought that the Proclamation’s prohibition on settling within un-surrendered Indian lands within colonies was legally binding on settlers and traders. In a 58 Mark D. Walters

1766 opinion, the attorney general for Quebec stated that colonial officers could legally destroy the houses of traders built within unceded Montagnais territory within the colony of Quebec on the grounds that the traders had acted “in Defiance of his Majestys Proclamation Dated 7th Octr 1763.”30 The colonial government accepted this advice, and a complaint by the traders in response was later dismissed by an imperial order in council.31 Still, executive acts and judicial rulings are, in law, different things – and without authoritative judicial decisions on the legal status of the Proclamation and the Aboriginal rights that it acknowledged, the state of British law remained very unclear throughout the eighteenth century. By the terms of the Proclamation itself, the temporary boundaries established for the Indian territory where no purchases or settlements were allowed were open to modification at any time by the Crown. But what about the other provisions in the Proclamation that were not expressed to be temporary in nature, in particular the rules that required the purchase of Indian lands by the Crown in a public meeting before lands were open to settlement? The Proclamation may have authorized colonial officials to take steps against squatters on Indian lands, as the attorney general for Quebec thought in 1766, but was the Proclamation something that could be enforced judicially against colonial officials who refused to enforce the Proclamation or who acted contrary to it themselves? Could Indian land rights protected by the Proclamation be judicially enforced against a colonial governor? Could they be judicially enforced in the face of an inconsistent law made by a colonial legislature? For that matter, could they be enforced against the Crown? We have seen how the case of Campbell v. Hall established that at least certain parts of the Proclamation could be invoked to render an inconsistent Crown instrument void. Did the Indian land rights provisions in the Proclamation have this effect in law too? If not, could they be ignored by the Crown at will, or did they have to be repealed or amended formally by another prerogative instrument before the Crown or its officials departed from them? As the nineteenth century unfolded, the Proclamation’s requirement on public Indian land purchases would be ignored in some places, like Lower Canada/Quebec, the Maritimes, and British Columbia, but followed carefully in other places, in particular Upper Canada/Ontario and in what would become the Prairie provinces. It would not be until the 1880s that the courts would consider the legal status of the Proclamation and the The Aboriginal Charter of Rights 59

Aboriginal title it acknowledged – and even then the idea of Aborig- inal title would remain a “shadowy”32 presence in Canadian law until the end of the twentieth century.

iii

In the late eighteenth and early nineteenth centuries, the upper country around the Great Lakes and the lower country along the St. Lawrence River were complex places, geographically, socially, militar- ily, and legally. European empires collided, old colonies rebelled to form new states, Indigenous nations were shattered and reconfigured, and lines of normative order as dynamic and shifting as the networks of rushing water that cut through the homelands of these diverse peoples were formed and reformed through methods that owed more to Aboriginal customary law than to either the common law or civil law traditions. The violence and chaos produced by the struggle between British and French empires did not end with the Seven Years’ War; there followed Pontiac’s War and then, in time, the American Revo- lutionary War and the War of 1812. The upper and lower countries witnessed significant population movements – traders, soldiers, warriors, refugees, rebels, loyalists, settlers, villagers, and hunters all moved along the waterways and into the lands between the lakes to establish homes, to engage in trade, to defend territories, to assert claims of power and dominion. The makers of imperial law in distant London could not keep up with these developments. In their haste to produce the Royal Proclamation of 1763, they forgot about the distinct religious and legal traditions of the French-Canadian population of Quebec, and in their eagerness to remedy that problem with the Quebec Act of 1774, they neglected the special status of Aboriginal nations. Other constitutional instruments were issued by imperial authorities over the following decades, but they did little more than provide the skeletal rules for settler governments. The development of “law” in a more meaningful sense – law as a manifestation of normative engagement between peoples, Aboriginal and non-Aboriginal alike – arose through practice, custom, and discourse. And in this respect, the Royal Proclamation of 1763 gained a new life. The Procla- mation’s ethic helped shape the practice of intercultural council discourse and treaty making in the upper country, losing its essence as a written parchment issued by a king and entering into an implicit or 60 Mark D. Walters customary law, a kind of law that was hardly recognized by the standard sources of positive law, the cases and statutes of the lawyer’s office, that dominated the British legal tradition at the time. There was never a distinct moment marking the death of the Proc- lamation as written law and its rebirth as unwritten law. However, the case of St. Catherine’s Milling & Lumber Co. v. The Queen, decided in the 1880s, which addressed the question of what kind of legal right or title, if any, Aboriginal peoples surrendered when making land- surrender treaties with the Crown, may be read as a judicial dialogue on the Proclamation’s fate in this respect.33 The trial judge, Chancel- lor John Alexander Boyd, concluded that Aboriginal peoples had no legal entitlements at all to their lands; although the Crown made treaties with them, it did so for reasons of “prudence and Christian charity,”34 a policy, not a law, appropriate when dealing with “heathens and barbarians,” “untaught and uncivilized” people, “rude red-men” in a “primitive state.”35 What about the Proclamation? It was, Boyd concluded, repealed eleven years after it was made by the Quebec Act, 1774 – at least in relation to those territories to which that act applied (the expanded province of Quebec, which later became Upper Cana- da/Ontario). On appeal to the Supreme Court of Canada, one of the judges, Sir Henri-Elzéar Taschereau, went one step further than Boyd. The Proclamation, in his view, did not recognize or create any legal rights in the first place. The Crown owned all lands within its dominions, subject only to those property rights it granted to subjects, and the wording used by the king in the Proclamation was insufficient to convey to the Indians a “right in law to the possession of any lands.”36 “Their occupancy under that document,” wrote Taschereau, “has been one by sufferance only.”37 For judges like Boyd and Taschereau, the Indian land rights provisions in the Proclamation were dead or, one could say, never really alive (legally) in the first place. However, St. Catherine’s Milling may be seen, as noted, as a judicial dialogue on this point. At the Supreme Court of Canada, Justice Samuel Strong issued a powerful dissent, taking a very different approach. Strong thought the Proclamation was very much alive as a matter of written law. It was obvious upon reading the terms of the Quebec Act, he argued, that its purpose was to repeal those provisions within the Proclamation introducing a representative legislature and English law into the colony of Quebec – provisions that, according to section 4 of the act, “ha[d] been found, upon Experience, to be inap- The Aboriginal Charter of Rights 61 plicable to the State and Circumstances of the said Province” given its population of sixty-five thousand French Canadians with their own distinctive religion and laws – and that nothing in the act or its context suggested that Parliament intended also to repeal the parts of the Proclamation dealing with Indian land rights.38 We may add, on this point, that although the Quebec Act placed a large part of the Indian territory that the Proclamation temporarily excluded from settlement within the newly expanded boundaries of Quebec, this change would simply have meant that the general provisions of the Proclamation on how Indian lands were to be acquired within colonies open to settlement were triggered; there was no indication that Parliament wanted to repeal these rules for one colony, Quebec, when they remained in force for all other colonies. Significantly, however, Strong also saw the Proclamation, whether repealed or not, as a reflection of unwritten law. For Boyd and Taschereau, law was what the Crown or Parliament expressly granted or commanded by an explicit legal text; the mere practice of treating for Indian lands was at best a reflection of morality or politics. For Strong, however, “colonial policy” relative to Indians, shaped as it was by both sentiments of justice and pragmatism, had “ripened into well established rules of law,” and thus Indians held their lands “as their rightful though inalienable [except to the Crown] property”; indeed, Strong insisted that even if there had been an “entire absence of any written legislative act ordaining this rule as an express positive law” – even, that is, had the Royal Proclamation of 1763 never required the purchase of Indian lands by the Crown – the rule would “nevertheless [have] existed as a rule of the unwritten common law.”39 Of course, the Proclamation both reflected and informed the policy and practice of treaty making, and, although Strong did not put it quite this way, his reasoning is therefore consistent with the rebirth of the Procla- mation – or at least its principles – as an integral aspect of an unwritten or common law formed through intercultural practice. St. Catherine’s Milling was a case about Aboriginal title, but it was ultimately a case about which level of government within Canada, federal or provincial, owned the land that was surrendered by Indian nations to the Crown. The federal government was responsible for treating and paying for Indian lands, and so, if Aboriginal title was a real property interest, then it would seem to follow that the purchas- er, the Crown in Right of Canada, would become owner. But this 62 Mark D. Walters result would have been inconsistent with one central part of the Con- federation compromise, the principle secured by section 109 of the British North America Act, 1867 that provinces own all Crown lands within their boundaries subject only to any trusts or other interests existing in relation to those lands. The case was therefore as much about the vision of federalism that would prevail in Canada as about the nature of Aboriginal title. If it could be shown that there was no such thing as an Aboriginal property right in law – that the Crown already owned Indian lands and the treaties of surrender were legally unnecessary – then the provinces would be able to claim the benefit of that ownership by virtue of section 109. This was the argument favoured by the judges in the lower courts in St. Catherine’s Milling. On appeal to the Judicial Committee of the Privy Council in London, however, a very different kind of reasoning emerged. Although the Privy Council held in favour of the provinces (which was hardly surprising given the general tendency of the empire’s highest court to favour strong provincial rights), Lord Watson, speaking for the Judi- cial Committee, did not adopt the extreme views of judges like Boyd and Taschereau on the Proclamation and Aboriginal title. The reasons were brief and perhaps purposefully vague. Said Lord Watson, it was unnecessary to define “the precise quality” of the “Indian right” in relation to land other than to say that this right could only be “ascribed to” the provisions of the Royal Proclamation of 1763, that the terms of the Proclamation suggested that it was “a personal and usufructuary right, dependent upon the good will of the Sovereign,” and that there had been “all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium” – or unencumbered and absolute – “whenever that title was surrendered or otherwise extinguished.”40 Lord Watson’s account of Aboriginal title to land has been denounced many times in the years since. But it is a remarkable opinion for at least one reason. It would have been easy enough for Lord Watson to have ruled in favour of the province by adopting the position articulated by Boyd and Taschereau in the courts below – that is, by ruling that there was no “Indian right” or “Indian title” in law at all – but instead he decided to reconcile the province’s title to surrendered Indian lands with an understanding of Aboriginal title as a legal interest, albeit a non-proprietary legal interest, existing as a burden upon the Crown’s underlying proprietary estate. This is of course a The Aboriginal Charter of Rights 63 very thin understanding of Aboriginal rights, but it was just enough to keep the idea of Aboriginal rights alive in Canadian law at a critical moment in the country’s legal and political history when it might otherwise have been eliminated. In this respect, the Proclamation of 1763 proved to be critical. Lord Watson might have reached the same conclusion about Aboriginal title by focusing upon official practice and usage and theories about the law of nations, and he might then have regarded the Proclamation not as the source but an affirmation of an essentially common law right to occupy land; indeed, this was precisely what the United States Supreme Court did sixty-five years earlier in the famous case of Johnson v. McIntosh, a case that had been cited in argument during the appeal of St. Catherine’s Milling.41 But British legal culture in the 1880s was not the same as American legal culture in the 1820s. Not all judges took as sympathetic a view toward unwritten law as Justice Strong. The ability to invoke a document issued by the Crown in support of “Indian title” seems to have made all the difference for Victorian judicial minds schooled in the legal positivism of Jeremy Bentham and John Austin. And herein lies the paradox of Lord Watson’s ruling in St. Catherine’s Milling: it may be seen, on the one hand, as saving the concept of Aboriginal title in Canadian law at a time when many Canadian judges would have denied it altogether, and yet, on the other hand, by pinning the idea of Aboriginal title to the Proclamation, Lord Watson provided an anemic understanding of Aboriginal rights as legal interests that were, in some sense, held hostage to (using his ambiguous words) the “good will of the Sovereign.” In the long run, the challenge of Cana- dian courts would not be, as it was in, for example, Australia, to articulate a common law theory of Aboriginal title from first principles, but rather it would be a matter of both building upon and escaping from the limited sense of Aboriginal rights that Lord Watson articulated – and in very simple terms this would mean both profiting from his use of the Proclamation as a springboard for a more robust sense of Aboriginal rights and also finding an unwritten or common law foundation for Aboriginal rights separate from the written law of the Proclamation. For a time, judges seemed to take the references to the Proclama- tion in St. Catherine’s Milling at face value, and they therefore treated the Proclamation as a meaningful source of positive legal rights for Aboriginal peoples; indeed, some judges saw the Proclamation as the 64 Mark D. Walters equivalent of an imperial statute that had been binding upon the Canadian Parliament until the Statute of Westminster, 1931 enabled dominions like Canada to repeal or amend imperial statutes extending to them.42 But, in the end, it was perhaps the very emphasis placed on the Proclamation as a positive source of legal rights that led to closer judicial scrutiny as to its legal status, its legal meaning, and its legal reach – and the Proclamation’s direct effect as a source of law was slowly eroded. With respect to its legal status, the questionable argument made by Chancellor Boyd in St. Catherine’s Milling that the Proclamation had been repealed by the Quebec Act in 1774, at least in the territories that fell within the expanded colony of Quebec, would be res- urrected a century later and (apparently) affirmed by the Supreme Court of Canada.43 It would seem that the Proclamation therefore has no direct force in Ontario. As for the Proclamation’s legal meaning, in those parts of Canada where it does still apply, certain courts have adopted an odd interpretation of its terms which drains it of its primary legal force. The Proclamation says that Aboriginal nations are to be protected “in the Possession of such Parts of Our Domin- ions and Territories as, not having been ceded to, or purchased by Us, are reserved to them.” In other words, the Indian lands protected by the Proclamation are those lands that have not yet been ceded to or purchased by the Crown – or at least that is what the words seem to say. But a number of judges have read this passage to mean something different. They say that the Proclamation only protects Indian lands not yet ceded to or purchased by the Crown if those lands have already been reserved to the relevant Aboriginal nation by some previous treaty or instrument.44 This interpretation of the passage is not only difficult to reconcile with basic rules of English usage and grammar, but it is inconsistent with historical context too. Would the Lords of Trade have sent Sir William Johnson to reassure hostile Aboriginal nations with a Proclamation that protected only those nations who happened already to have been granted reserved lands? No. In fact, Johnson promised protection to all nations that were or would become, as the Proclamation says, “connected” to the Crown, or, in other words, any nation that was part of the general treaty of peace, friendship, and alliance known as the Covenant Chain, which connected the various nations of the Great Lakes region to the Crown.45 As for the legal reach of the Proclama- The Aboriginal Charter of Rights 65 tion, there have been over the years strong statements from certain judges that the Proclamation is like the Magna Carta in that it followed the British flag to newly acquired territories and was therefore applicable throughout Canada, including British Columbia and the far north.46 In recent years, however, a different view has emerged, which seems to be the dominant view, which is that the Procla- mation does not, and never did, extend to territories (like British Columbia) that were not in the contemplation of drafters of the Proclamation.47 Finally, lawyers for the federal government continue to argue, on the basis of controversial expert legal history evidence, that the Proclamation was never a source of legal rights for Aboriginal peoples.48 As for the reference to the Proclamation in section 25 of the Canadian Charter of Rights and Freedoms, it has received hardly any judicial attention at all. At most, one judge has said, it serves to protect existing rights from derogation by the interpretation of Charter rights; it does constitutionalize rights not already constitutionally protected.49 But the death of the Proclamation as a source of positive legal rights represents only part of its legal story. In the end, the approach of Justice Strong from 1887 won out: the Proclamation came to be seen as legally alive as both a reflection and a manifestation of a deep- er underlying and intercultural form of unwritten or common law. Starting in the 1970s, judges came to see Aboriginal title to land as a legal right recognized by but not dependent upon the Proclama- tion.50 The Proclamation’s continued relevance to Aboriginal title derives from its ability to act as a kind of mirror that reflects back basic principles and ideals onto a timeless common law. When the common law on Aboriginal title seems at times to stumble, so to speak, as it did in the 2005 decision in Marshall and Bernard, the Proclamation serves as an interpretive ideal showing the way forward.51 In this respect, the labyrinth of the Proclamation’s text, with its anomalies and inconsistencies, ceases to be relevant; what matters are the general legal principles it embraces. Here perhaps the most profound significance for Canadian constitutional law of the Procla- mation, aside from the way that it saved the idea of Aboriginal title during a difficult stretch of judicial history, is the way judges have drawn from it the principle of the “honour of the Crown.” Over a century ago, it was judicially recognized that the “line of policy begotten of prudence, humanity and justice adopted by the British 66 Mark D. Walters

Crown … outlined in the Royal Proclamation of 1763” was one respectful of “the honour of the Crown.”52 Building upon this idea, judges at first recognized a specific “fiduciary” duty owed by governments to Aboriginal peoples when dealing with their lands.53 In the last decade or so, however, the Proclamation has served as a key normative foundation for the development by the courts of a more general principle of the “honour of the Crown” that in turn provides the foundation for the constitutional duty on governments to consult Aboriginal peoples when policies may affect rights that they have claimed, and a duty to remedy historic wrongs that have damaged the constitutional fabric of the country.54 Perhaps the most important constitutional legacy of the Royal Proclamation of 1763 will be, in the long run, not its impact on the complex details of Aboriginal title to land, but its implications for the general understanding of Aboriginal nations within Canada. It is worth recalling that Aboriginal leaders themselves wanted a reference to the Proclamation within the Constitution Act, 1982 mainly because it was a powerful reminder of the status of Aboriginal peoples as nations with inherent rights of self-government.55 From this perspective, the first decision of the Supreme Court of Canada on the new constitutional provisions, R. v. Sparrow, was perhaps disappointing. Chief Justice Brian Dickson and Justice Gérard La Forest appeared to adopt a very narrow and textual reading of the Procla- mation in relation on the issue of sovereignty, quoting the passage from the Proclamation stating that Indian lands were reserved under the Crown’s “Sovereignty, Protection and Dominion” and concluding that “there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.”56 Had the judges looked at what Sir William John- son said in the aftermath of the treaty councils held soon after the Proclamation was issued, had they examined the Plan of 1764, the Act of Parliament that the Proclamation might have been, or even had they paid closer attention to the old American cases that they themselves cited, one wonders whether they would have offered such an unequivocal statement on the question of sovereignty.57 And yet, in the long run, the hope of Aboriginal leaders in the early 1980s may prove justified. In recent years, a more nuanced view of the complex issues surrounding sovereignty and self-government may have emerged. We may note, for example, that in 2001 Chief Justice Bever- The Aboriginal Charter of Rights 67 ley McLachlin cited the Proclamation as support for the proposition that “English law, which ultimately came to govern aboriginal rights, accepted that the aboriginal peoples possessed pre-existing laws and interests, and recognized their continuance in the absence of extinguishment, by cession, conquest, or legislation,”58 and that in 2004, in two cases that developed the Proclamation-inspired “honour of the Crown” concept, she insisted that treaties with Aboriginal peoples are required “to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty,” or “de facto Crown sovereignty,” the respective “sovereignty claims” being “reconciled through the process of honourable negotiation.”59 The word of the Proclamation is largely dead as a direct source of written law, but its unwritten ethic is very much alive and perhaps only just beginning to flourish in our law. Indeed, the focus on the ethic rather than the text of the Proclamation may be a good thing for two reasons. First, it is possible, given the peculiarities of the Procla- mation’s wording, that it simply never could have been a meaningful textual foundation for Aboriginal rights in Canada today. Second, and more importantly, the meaning of the Proclamation in our law, like the interpretation of Aboriginal and treaty rights generally, must take into account the Aboriginal perspective. As John Borrows so effectively argues, the true normative life of the Proclamation is not found in the unilateral expression of sovereign will by a distant king, but in the way in which the general principles affirmed by the Proclamation were accepted by Indigenous peoples at treaty council fires – like the famous Covenant Chain treaty council of 1764 at Niagara.60 Although there have been statements by judges at the highest levels that the Proclamation itself is not a treaty and does not represent a set of treaty rights,61 perhaps the better view is the one expressed by the Ontario Court of Appeal in the recent case of Chippewas of Sarnia Band v. Canada, that the Proclamation started as “a unilateral declaration of the imperial Crown” but, after treaty councils like the one held at Nia- gara in 1764, it became “a formal part of the treaty relationship with the Indian nations.”62 Through this way of conceiving the Proclama- tion, judges may finally begin to confront the possibility that its meaning in Canadian law today is shaped, at least in part, by Aborig- inal legal traditions and perspectives. The Proclamation’s status in Canadian constitutional law is best seen, I think, as the manifestation of an intercultural constitution formed over a long and hard history 68 Mark D. Walters of nation-to-nation engagement. We need not get tripped up by the wording of its text. Its ethic is a part of the unwritten constitutional law of Canada, and it is an ethic that, in my opinion, is captured by the image of intercultural synthesis, and, yes, irony found in Eric Robertson’s wonderful sculptural rendition of the Royal Proclama- tion of 7 October 1763. The Aboriginal Constitution 69

The Impact of the Royal Proclamation of 1763 on Quebec: Then and Now

ghislain otis1

introduction

The Royal Proclamation of 1763 was an imperial constitutional instrument that brought within its fold the Indigenous people, the French people, and the new British rulers, thus initiating an unprece- dented tripartite relational dynamic in Canada that endures to this day, even as the country has since become an even more culturally diverse and complex society. In discussing the impact of the Proclamation on Quebec, this paper will primarily focus on its impact on the people that occupied the territory before the British took over and called it “The Province of Que- bec” for the very first time in 1763. These people were the Indigenous people who lived on their traditional land and also some reserves or mission settlements created under the French regime2 and the French people of Canada who had settled in the St. Lawrence Valley since the early seventeenth century. Of course, the territory of New France had been much larger than the tiny Province of Quebec created by the Proclamation, but the majority of French settlers did live in that part of the territory claimed by France.3 The paper will first briefly discuss the impact of the Proclamation on the French people, a very important subject from the Quebec perspective and one that is not addressed in detail in the other chapters of this book. It will then touch on the effect of the Proclamation on the relationship between the French people and Indigenous peoples. In the last section, I will explain how the Proclamation has impacted the legal status and the land rights of the Indigenous peoples of Que- 70 Ghislain Otis bec and Canada. Since this last issue is extensively discussed in other chapters, only a few additional comments will be made here.

the relationship between the british crown and the french people of canada: a proclamation of conquest

The phrase “French people of Canada” is used in this paper for the sake of convenience because the most exact expression would be “les Canadiens.” This is what the French people of Canada called themselves and that is what they were called by other people in 1763. The immediate impact of the Proclamation on the French people cannot be fully appreciated without a good understanding of the drama they had experienced in the war that had just ended, in 1760, with the capitulation of Montreal. The French people of Canada had been shaken and impoverished by the military invasion and conquest of what had been their homeland for 150 years. In the final year of the war, every village and hamlet in the St. Lawrence Valley had mobilized to repel the invaders; hundreds of men and boys were killed, hundreds more were wounded and made prisoners. During the siege of Quebec City, villages and crops were burnt by the British troops, cat- tle were destroyed, and whole communities were displaced. Women and children died in large numbers from the diseases and the depri- vations caused by these displacements.4 The French military, administrative, and commercial elites were expelled to France or emigrated in substantial numbers. Created in the immediate aftermath of the Treaty of Paris, the Proclamation is the constitutional expression and institutional implementation of the conquest of the French people and their colony. It is therefore the constitution that confirmed a dramatic reversal in status and fortune: from making colonial claims to Canada the French became a colonized people. This would change forever how they defined themselves and the way they saw their destiny on this continent. Key provisions of the Proclamation dealing with the constitution of the new British colony of Quebec were regarded as detrimental to the French people, that is, to the overwhelming majority of the population. Although the Proclamation did not extinguish their property rights, the Canadiens by no means saw it as their Magna Carta. The provisions of the Proclamation contested by the French people concerned religion, the legal system, and the French language. The Royal Proclamation and Quebec 71

Religious Exclusion: The Test Oath

The new British sovereign was in general hostile to Catholics. Practi- cally all the French were Catholics and religion was a core element of their cultural and social fabric. Although the British had no choice but to tolerate the presence of Catholics in the colony, the legal right of the Catholic Church to exist in Quebec was not formally recognized. Moreover, the French were denied any access to the colonial administration and the judiciary as a result of the requirement that all public officials swear the Test Oath whereby they had to repudiate central tenets of the Catholic religion. Consequently, the population of the colony was administered by a few Protestant, English-speaking British officials and merchants.5 The governors eventually made some exceptions, but the rule produced its systemic discriminatory effect until it was abolished by the Quebec Act, 1774. Not surprisingly this led to alienation on a large scale and to pressing calls for an end to this discrimination.6

French Law in Limbo

The Proclamation stated that “Persons inhabiting in, or resorting to Our said Colonies, may confide in Our Royal Protection for the Enjoyment of the Benefit of the Laws of Our Realm of England.” It consequently empowered the colonial government to create courts to deal with civil and criminal cases “according to Law and Equity, and as near as may be agreeable to the Laws of England.” Governor Mur- ray issued an order pursuant to which civil and criminal courts were created and empowered to hear and decide all cases following English law.7 The order of Governor Murray provided for an exception in the lower Court of Common Pleas, where the application of French law between French parties was accepted, but only for causes of action arising prior to 4 October 1764. New causes of action were to be adjudicated in accordance with English law. Predictably, many in the colony interpreted this order as an abro- gation of French law regarding not only criminal matters but also in the matters of property and civil law, especially since no French jurist could be appointed to the civil courts because of the Test Oath. The French people resisted this apparent attempt to do away with the French legal tradition in Canada because it threatened their familial, social, and economic institutions. 72 Ghislain Otis

In practice, however, it is widely believed by historians that French law continued to govern dealings between the new subjects in a large number of cases. Many French people, though not all, did their best to avoid official British institutions and continued to apply the only law they knew in their private dealings and agreements. Whenever they could, they settled their disputes through non-judicial or informal means on the basis of French law.8 Moreover, according to a recent study of the records of the Court of Common Pleas, French law was often applied by the court in cases involving French parties, even when the cause of action arose after 4 October 1764.9 Existing research does not permit conclusions as to which legal system was generally applied to dealings between subjects of British origin. There was a debate among top British officials as to whether the true intent of the Crown was to abolish French private law. Some deemed “tyrannical” the notion that the long-established civil law institutions of the conquered could thus be abruptly suppressed.10 Indeed, this notion was at odds with the principle of continuity usually applied to conquered colonies under British imperial law.11 Governor Carleton formally recommended that the 1764 order be revoked so as to secure the continued application of French law.12 The confused policy regarding the legal system touched off demands by new subjects for the reintroduction or confirmation of French law.13 But this controversy was only to be settled for good by the adoption of the Quebec Act in 1774, which nonetheless maintained the application of English criminal law to Quebec.

Linguistic Marginalization in Government Affairs and the Administration of Justice

Although several high-ranking colonial officials were fluent in the French language and most important official documents were translated into French out of sheer necessity, the French were barred from public office and the judiciary. The threat to French law was also a threat to the French language, which was inseparable from the law. As a result, the ordinary business of government was conducted in the English language. The language issue was another reason for the French to demand constitutional change. The Royal Proclamation and Quebec 73

No Political Participation in Government

While other British colonies in North America had been granted an elected legislative assembly, the people of the newly created colony of Quebec were not given any political representation in the colonial institutions. A non-elected legislative and executive council composed of only British Protestants was set up, and no legislative assembly was summoned (a possibility that had been contemplated but not mandated by the Proclamation). The colonial administration opposed the establishment of an elected local assembly because none of the options available was seen as acceptable. If the view of the Protestant merchants were to prevail, only Protestants, or at least a clear majority of them, could have been elected to the assembly. This would have been an affront and an injustice to the French. On the other hand, if the French could vote and sit in the assembly, they would be certain to control it. This prospect was no more palatable to the colonial administration than a Protestant-led assembly as it would give too much political clout to the new subjects whose loyalty to the king remained untested. It must be said, however, that the creation of a local assembly was not the most pressing issue for the French. After all, they had had no such assembly at the time of New France and many feared unjust taxation.14 Overall, the political institutions put in place under the Proclama- tion were no improvement on the centralized French regime, despite the propaganda about British liberties that pervaded official commu- nications in the colony.15 No representative assembly was created until 1791 and no truly democratic institutions until the middle of the nineteenth century.

The Lasting Effects of the Proclamation

The experience of the Royal Proclamation has shaped the collective consciousness of the French people in Quebec up to this day. It marked the beginning of a long and ongoing march toward some degree of respect, autonomy, prosperity, and cultural security on a primarily Anglo-American continent. The French term often used for this relentless existential quest of a whole people is survivance.16 The French people of Quebec have managed to move beyond the Royal Proclamation along a sinuous and often treacherous path lined with 74 Ghislain Otis some successes and several setbacks. Later constitutional developments addressed some of the major wrongs the Proclamation inflict- ed. In 1867, for the first time, the then “French Canadians” secured control of fully democratic institutions in British North America. Since the Proclamation, the French people of Quebec have astutely combined dogged resistance to powerful assimilationist forces with compromise, and rebellious opposition to political marginalization with cooperation.17 Many Quebecers think, however, that their nation has not yet overcome the heritage of British colonization and that decisive constitutional action is still required to get past it.18 Suffice it to note here that it was no coincidence that the distinct society clause in the doomed Meech Lake Accord of 1987 mentioned the civil law system and the French language as two defining characteristics of Quebec as a distinct society. The very fundamental question that arose on 7 October 1763 is still with us: What is the future of a distinctive Quebec in Canada and in the world? Another enduring legacy of the Proclamation in Quebec lies in the way it profoundly altered the relationship between the French and Indigenous peoples. This is discussed in the next section.

the relationship between indigenous peoples and the french people: proclamation of division

The presence of the French in North America had depended heavily on their military and commercial alliances with the First Peoples. As was acknowledged by the Supreme Court of Canada in R. v. Sioui, the French had no choice but to treat their Indigenous allies as virtually independent nations19 – a relationship that one historian has termed a “sovereignty association.”20 The French Crown had not proclaimed a formal policy of recognizing Indigenous title, and it had not concluded land treaties with its Indigenous allies. But the absence of such specific forms of recognition did not mean that the French considered the Indigenous peoples to be without rights. They simply dealt with the matter differently from the British because the issue of extinguishment of Aboriginal title – which had been key to British colonization – was virtually non- existent in practical terms given the specific geographic, economic, and political patterns of French settlement. The French colony in Canada was never intensively settled the way the British colonies The Royal Proclamation and Quebec 75 of the Atlantic seaboard were. Clashes over territory did exist but were much less frequent in the French colony, so the issue of coexistence on the land was settled on an ad hoc basis that did not entail a wholesale expropriation of Indigenous peoples’ lands throughout the colony.21 The Royal Proclamation confirmed that the longstanding relationship and existing alliances between the French and the Indigenous peoples of Canada had ended. All the issues addressed in the Procla- mation that were vitally important to Indigenous peoples – military matters, diplomacy, land rights, trade, and European settlement – were placed in the hands of the British Crown. The relationship between the French and the Indigenous peoples was fundamentally trans- formed, and each of these two groups would gradually turn toward defining its interests separately from the other. Each would fight for its survival, development, recognition, and sovereignty. Now, however, slow progress is being made to restore the ancient alliances between the conquered and the “discovered” of 1763. The third segment of the relational triangle put in place by the Proclamation relates to the establishment of a new relationship between the British Crown and the Indigenous peoples of Quebec and other parts of Canada. This is the subject of the last section of this paper.

the relationship between the british crown and indigenous peoples: a proclamation of discovery

Discovery Then and Now

The Proclamation is often celebrated as a foundational instrument proclaiming the rights of Indigenous peoples in Canada and as the constitutional source of treaties. Surprisingly, its deeply imperial and colonial nature is sometimes overlooked or downplayed by those who prefer not to dwell on the way in which the First Peoples were robbed of their international status as independent nations.22 The harsh fact is that, through the Proclamation, King George III exercised his newly acquired discovery authority over the territory claimed by France. The sovereign solemnly claims in this instrument that Indians tribes and nations “live under Our Protection” and declares even the Indian country to be “our Dominions and Territories” even though the land 76 Ghislain Otis had not yet been ceded to or purchased by the Crown. This land is reserved “under our Sovereignty, Protection and Dominion.”In accordance with the sovereign will of His Majesty, Indigenous peoples retain their existing rights as first occupants with respect to their land, subject to the exclusive right of the Crown to acquire these rights through a public procedure laid down in the Proclamation. While their internal sovereignty or self-governing status may have survived (they are called “Indian Nations”), they are not permitted to deal with any other European power than the British Crown. Any Aboriginal nation bold enough to challenge this imposition of sovereignty would be ruthlessly crushed as Pontiac and his allies were. These elements of the Proclamation are nothing less than the king claiming his discovery title to all Indigenous land, his right of pre- emption over this land, and his duty to protect and civilize Indian people.23 This is a unilateral assertion of sovereignty over Indigenous Canada and its land and resources, premised on the notion that countries inhabited by Indigenous peoples could be deemed to be without a sovereign and thus unilaterally annexed through mere possession by European powers. Although Indigenous political and legal systems were not completely abrogated by discovery, they were deemed too backward to require that a sovereign-to-sovereign relationship take account of them before Indigenous territory be occupied.24 It has been argued that the Proclamation was promptly incorporated into a treaty, thereby becoming a bilateral instrument, at a meeting between Crown representatives and a number of Indigenous chiefs at Niagara Falls.25 The Indigenous peoples represented at that meeting may well have consented to British sovereignty subject to their Abo- riginal rights, but, assuming the Crown intended, on that occasion, to repudiate the independent operation of discovery, this intent clearly did not extend beyond the case of that specific treaty. Indeed, the Proclamation was neither the first nor the last British act of discovery in North America; discovery was the basis for the English claim to the vast expanse of land granted to the Hudson’s Bay Company26 and to British Columbia.27 The Proclamation does not embody an absolutist application of terra nullius since the Indigenous peoples retain a limited right to own the land, but they purportedly have been unilaterally deprived of their status as fully sovereign nations capable of entering into free relationships with other nations. Traces of the discovery doctrine can be found in numerous treaties that were signed in the following two hundred years. The preambles The Royal Proclamation and Quebec 77 to the numbered treaties, for example, state that Her Majesty is dealing with “Her Indian subjects” and “Her Indian people,” thus making clear that, at least from the Crown’s standpoint, sovereignty was not the object under negotiation. The logic of discovery has remained to this day at the heart of state ideology in Canada, which treats Crown sovereignty over Indigenous peoples under international law as inherently valid and indefeasible. The fact that this logic is still shaping government policy is illustrat- ed in the federal statement on the inherent right to self-government in which the Crown unilaterally declares that “the inherent right of self-government does not include a right of sovereignty in the international law sense, and will not result in sovereign independent Abo- riginal nation states.”28 In other words, the international sovereignty acquired by the Crown over Canada through discovery is not nego- tiable. Enduring adhesion to discovery has also led to the adamant rejection by the Canadian government of any provision in the UN Declaration on the Rights of Indigenous Peoples that could be construed as affirming a right to external self-determination. There is perhaps even a hint at the logic of discovery in the very wording of section 35 of the Constitution Act, 1982, which refers to the “aboriginal peoples of Canada,” thus apparently reaffirming in current constitutional terms the political incorporation of all these peoples by the Canadian state, whether or not they have consented to Crown sovereignty through treaties. Discovery logic also arguably provides the background to the Supreme Court’s jurisprudence regarding Aboriginal rights and treaties in which the Court insists that section 35 rights must be reconciled with Crown sovereignty. In its very first authoritative interpretation of section 35, the Supreme Court stated that “there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.”29 In a more recent case, Haida Nation v. British Columbia, the Court reasserted “the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty.”30 It is important to note that, for the Court, Crown sovereignty simply is a “reality,” which it later terms the “de facto control of land and resources.”31 While this ter- minology may suggest that the legitimacy of Crown sovereignty should be perfected through reconciliation under section 35, it does not challenge the effectiveness of such sovereignty. Nevertheless, these statements by the Supreme Court have triggered an enthusiastic 78 Ghislain Otis response from some scholars who have interpreted the reference to “de facto” Crown sovereignty and to the need to reconcile “pre-existing aboriginal sovereignty with assumed Crown sovereignty”32 as a recognition by the Court that the sovereignty of Canada over some Indigenous peoples and their land is unconstitutional and can only be made legally valid through a satisfactory negotiation with these peoples pursuant to section 35 of the Constitution Act, 1982, which is ironically itself a product of Crown sovereignty. In the view of these scholars, the Court has dealt discovery logic a severe blow.33 At the same time, however, these authors argue that the territorial integrity of Canada under international law cannot be challenged.34 This means in fact that the key bounty of discovery remains intact because Indigenous consent to a unilaterally imposed Crown sovereignty cannot be withheld and the restitution of Indigenous sovereignty outside the Canadian state cannot be contemplated.

The Debate Regarding Land Rights in Quebec under the Proclamation

Although it constitutes a unilateral assertion of Crown sovereignty, the Proclamation recognizes the pre-existing land rights of Indige- nous peoples. But the extent to which this includes Indigenous land within the colony of Quebec has been the subject of both academic and judicial debate. It is generally agreed that the Proclamation has recognized the rights of Indigenous peoples in that part of today’s Quebec included in the “Indian Country.”35 But the extent to which the Proclamation constitutes an independent legal recognition of rights to ungranted land within the boundaries of the colony of Que- bec as they were drawn in 1763 has been the subject of conflicting opinions among historians and legal scholars.36 There is consensus that all existing Indian reserves within the colony were protected by the Proclamation, and it would probably be relatively uncontroversial to state that lands reserved by treaty, if any, were also covered. But does the Proclamation also acknowledge Aboriginal rights or title to all the land traditionally possessed and used by the Indigenous peoples within the colony of Quebec but not formally incorporated into a reserve or set aside in a treaty? Among scholars and lawyers, who have put forward various textual and contextual arguments, answers vary.37 The Royal Proclamation and Quebec 79

The controversy has to a substantial extent lost its practical legal interest following the Supreme Court decision in R. v. Côté. The Court ruled that Aboriginal rights on ancestral lands are self-standing rights not dependent upon recognition by the Proclamation, and that they have survived within the territory formerly claimed by the French wherever they have not been specifically and clearly extinguished. The Court ruled quite rightly that the French, regardless of whether they had recognized Aboriginal rights or not, had not effected a blanket extinguishment of these rights which may therefore be claimed to this day under section 35 of the Constitution Act.38 There is, in other words, no need to rely on the Proclamation as the legal foundation for a claim to land traditionally possessed by Abo- riginal people within the Quebec colony of 1763 if the conditions laid down for the application of section 35 are met. Section 35 provides a sufficient basis for such a claim – and even a stronger one than one based on the Proclamation – because it is constitutionally entrenched whereas the formal constitutional status of the Proclamation has not yet been clarified. The Proclamation, however, might still be important in cases where an Aboriginal nation cannot make out a claim under section 35 because the test developed by the courts for proving Aboriginal rights or treaty rights cannot be met. This could be the case regarding some old reserves created under the French regime, assuming it is arguable that no Aboriginal or treaty rights exist in some of these reserves.

conclusion

This paper looked into some of the very profound and lasting effects of the Royal Proclamation on the relationship between the Crown, Indigenous peoples, and the people of Quebec. In 1763, both the French and the Indigenous peoples in Canada found themselves under a new and alien imperial sovereign. The French had been conquered, and the Indigenous peoples, who had not, were nonetheless “discovered” and thus subjected to the Crown’s affirmation of sovereignty. Quebec was able to achieve some provincial autonomy in 1867, but most Indigenous peoples are still striving for a just relationship with Canada. The Proclamation was the first act in an ongoing constitutional drama wherein decolonization and reconciliation are at stake. Fortu- 80 Ghislain Otis nately, the need for reconciliation with Indigenous peoples appears to be increasingly recognized even if the challenges remain colossal. On the other hand, addressing Quebec’s persistent constitutional concerns does not appear to be a priority for the moment. It remains to be seen how far we will have gone when the Proclamation reaches the age of three hundred years. The Aboriginal Constitution 81

Canada’s Historic Treaties

j.r. miller1

The agreements between Aboriginal peoples and the Crown in Cana- da known as “historic treaties” constitute one of several categories of treaties that have been concluded since the earliest days of European presence in the northern portion of North America. Although the government of Canada chooses to recognize as “historic treaties” only certain eighteenth-century peace and friendship treaties and pacts dealing with land that were made following the Royal Proclamation of 1763, in fact Canadian history began with a century of treaties that have been largely ignored. Thus, the Royal Proclamation of 1763 and the territorial treaties that flowed from it form part of a long and var- ied tradition of treaty making that stretches from the seventeenth century down to the twenty-first. Territorial treaties, which were entered into from the Proclamation until 1923, were succeeded in turn by two new forms of treaty in the latter decades of the twentieth century. Between 1973 and the present, the Crown in Canada has continued to make treaties by means both of a claims resolution process and agreements directly negotiated with First Nations. Canada’s “historic treaties” accordingly need to be understood as one important part of a lengthy, distinguished practice that connects the earliest days of European contact in eastern Canada with ongoing efforts to advance reconciliation between Aboriginal peoples and the Crown by means of treaties and settled claims. The earliest phases of treaty making in Canada revolved not around territory but commerce and diplomacy. The agreements that French adventurers made from the early years of the seventeenth century in what are now the Maritimes and Quebec were designed to facilitate trade, particularly in furs, and later to smooth and strengthen rela- 82 J.R. Miller tions between Indigenous and immigrant peoples. Why newcomers wanted to create an environment for profitable trade and Native alliances is explained by Europeans’ motives for coming to North America. The French, in particular, who began to establish permanent settlements, or habitations, in the first decade of the 1600s, were in search of fish, fur, fields for evangelization, and opportunities to explore the continent.2 Fish were a vital part of the western European diet, especially in Roman Catholic countries such as France that had many meatless days in their calendar. Furs, particularly those of the beaver that yielded lustrous felt ideal for making men’s hats, were a principal export throughout the seventeenth century and beyond. Fur traders secured monopolies to trade from the French Crown in return for making commitments to promote the evangelization and conver- sion to Catholicism of the First Nations they encountered in North America. In the religiously zealous seventeenth century, the French king insisted that the fur trade entrepreneurs to whom he granted exclusive licenses to seek fur assist the Récollets, Jesuits, and other orders. And, finally, in the early years following contact, the Crown authorized cartographers and others to explore to find a route to the Far East with its fabled riches. To pursue these goals, Europeans soon understood that harmonious relations with the local people were a prerequisite. It would be impossible to fish peacefully for cod and whales in the face of hos- tility from the much more numerous local First Nations. If Native tolerance of the European presence was highly desirable for fishers, it was absolutely indispensable for fur traders. Europeans needed local people, with their extensive knowledge of the environment and the habits of its resident animals, to guide, provision, and assist them in securing prime beaver skins. Because of the physiology of the beaver pelt, which consisted of both long coarse guard hairs and a short softer downy fur underneath, active and sustained contributions of First Nations were necessary if the prime skins were to be obtained. Not only did the Indigenous suppliers locate, take, and skin the beaver, they also “processed” its pelt using a unique method. First Nations wore cloaks made of beaver fur during the winter, and the resulting combination of heat, abrasion, smoke, and oils from the wearer’s body had the effect of stripping off the guard hairs and leaving the desired downy fur attached to a now supple skin. The result of this process – and the prime fur that traders sought above all oth- Canada’s Historic Treaties 83 ers – was known in French as castor gras d’hiver, literally “greasy winter beaver skin.” This instance of how local hunters were indispensable in the beaver fur trade was only an especially pointed example of a general phenomenon: the fur trade could not be carried on without Indigenous assistance. Indigenous cooperation was essential to the success of Europeans’ efforts at evangelization and exploration as well as fur trading and fishing. Obviously, without First Nations’ help, missionaries would not be able to travel to the Natives’ home territories or survive there while proselytizing. In the worst case, absent Aboriginal participation in missionizing, all the European evangelists would have ended up as martyrs rather than preachers resident in First Nations’ villages or tipis. Similarly, explorers and cartographers could not carry out their voyages without the information and guidance that First Nations informants provided. Not only did cooperative Natives tell those looking for the elusive passage to Asia of the waterways and peoples in interior regions, but they also served as guides and porters for the map-makers intent on pushing west to reach the East. In short, explorers, evangelists, traders, and fishers were all overwhelmingly dependent on the goodwill and assistance of Indigenous informants and partners. European adventurers in what would become Canada soon found that First Nations had their own requirements for joining them in their ventures. For Aboriginal peoples, dealing with strangers in trade, for example, was not a simple matter, no mere commercial transac- tion. It was not that they were not familiar with trade; before Euro- peans turned up, they pursued commercial ties with other First Nations regularly, and sometimes over long distances. Seventeenth- century Europeans did not introduce trade; rather, they stepped into existing trade and alliance arrangements that First Nations had established. But in Aboriginal society, it was not possible to trade with strangers without carrying out preliminary actions, for the simple reason that an individual or group’s security depended on assuming that a stranger was likely an enemy until proven otherwise. And to turn the potential danger a stranger constituted into something benign, First Nations recast the outsider as a relative, using ceremonies to create ascribed or fictive kinship between them. The kin ties that were created by ceremonies such as gift giving and smoking the pipe had to be renewed regularly with re-enactments of these same protocols.3 84 J.R. Miller

For example, in 1603, Samuel de Champlain established links with a Montagnais band led by Anadabijou. Champlain described how the chief received and feasted the French visitors in his lodge, and, after a younger member of the group made a speech for the chief,

the said grand Sagamore Anadabijou, who had listened to him attentively, began to smoke tobacco, and to pass on his pipe to Monsieur du Pont-Gravé of St. Malo, and to me, and to certain other Sagamores who were near him. After smoking some time, he began to address the whole gathering, speaking with gravity, pausing sometimes a little, and then resuming his speech, saying to them, that in truth they ought to be very glad to have His Majesty for their great friend. They answered all with one voice, Ho, ho, ho, which is to say yes, yes.

And the following morning, Anadabijou announced to his followers “that they should break camp to go to Tadoussac, where their good friends were,” to trade.4 Champlain and his companions had been converted into people with whom Anadabijou and his Montagnais could associate with confidence. The ceremonies of feasting, speech making, and pipe smoking were the means of establishing an enduring relationship within which the Aboriginal and European people could work together, whether in commerce – as Anadabijou’s decision to go to Tadoussac to trade with his new friends indicated – or by helping each other against common enemies. Indeed, although the French and the British to the south distinguished between their commercial relations with Indigenous peoples and the alliances they established, particularly from the late seventeenth century onward, for First Nations commercial and diplomatic-military links were merely two aspects of the same kin-like relationship. These ties, which would continue to be important to both British and French as they pursued their objectives in eastern North America well into the eighteenth century, were all of a piece to First Nations. An Iroquois diplomat put the point plainly in a speech in council to a British agent in 1735 when he declaimed, “Trade and peace we take to be one thing.”5 The separate activities that Europeans perceived as commercial or strategic were joined as one in the minds of First Nations because they were both facilitated by the ascribed kinship between Indigenous and immigrant that flowed from the ceremonies in which they jointly participated to initiate and Canada’s Historic Treaties 85 later regularly to renew their relationship. These ceremonies and the ententes between strangers that they created were Canada’s earliest treaties. To Europeans they were commercial agreements or peace and friendship treaties, but to First Nations they were simply the links that ceremony created and preserved. In the early eighteenth century, when Europeans’ focus shifted increasingly to the struggle for control of eastern North America, the role of peace and friendship treaties became more prominent. Now, more formal methods were sometimes used to create and renew the diplomatic-military ententes. Some formality had always been present in the making of peace and friendship pacts in the form of wampum. The use of wampum made of shells strung on sinews of deer long pre- dated the arrival of Europeans. Its purposes were numerous. A wampum presented by a First Nations diplomat opened discussion of a topic, such as a proposal to join in a war party. The figures worked into the shells of the wampum symbolized the proposal being presented, or, if a conclusion was reached, the contents of the agreement. Either way, the bearer of wampum would “read” the wampum, making reference to the various symbols to state his case.6 Should it become necessary later, a First Nations representative would use a wampum belt to remind a partner, perhaps the French or the British, of what they had earlier agreed to do together, and how the ally had failed to live up to the commitments made. In other words, wampum was a type of overture, an outline for discussion, and a record of negotiations and conclusions. What was particularly striking about its use in Europeans’ negotiations with First Nations was how quickly the newcomers learned to employ wampum to conduct their side of forest diplomacy. A French leader such as Count Frontenac, or, later, a British representative such as Sir William Johnson was strikingly adept at brandishing belts of wampum and making bravura speeches to First Nations allies. In many cases, of course, wampum belts served to “archive” peace and friendship agreements between Indigenous and European partners. In the first half of the eighteenth century, when strategic considerations bulked larger than commercial concerns in the planning of the French and British as they jockeyed for control of the eastern half of North America, peace and friendship treaties became more formal. The French initiated this new phase of treaty making with the mam- moth Great Peace of Montreal that they made with the Five Nations Iroquois and several dozen other First Nations to conclude six 86 J.R. Miller decades of on-and-off warfare between the Five Nations and New France.7 But, remarkably, this was one of only two formal agreements the French made, the other occurring in Acadia, the Maritime colony over which France and Britain contended for fifty years between the Treaty of Utrecht (1713) and the Peace of Paris (1763). The reason that the French made so few formal treaties of friendship was that they could rely on their extensive fur trade networks that stretched not only north to James Bay but also inland to the Ohio, Illinois, and Mis- sissippi River valleys. Along these extensions of French power, First Nations and Versailles renewed their friendship and cooperation regularly by ceremonial means such as wampum, speeches, feasts, and smoking the pipe. On the whole, these informal means of diplomacy proved highly effective, as France succeeded in maintaining the alliance of First Nations for cooperation in the fur trade and strategic diplomacy aimed at holding the British colonies on the Atlantic seaboard in check. The situation of the British was strikingly different, and the result of this difference was that they were driven to engage in more formal treaty making in the form of peace and friendship treaties in the half- century prior to 1763. Because the British colonies were more agri- culturally based than the French – and became more so over time – they depended less on fur trade networks involving First Nations to conduct their business. Consequently, in some parts of eastern North America, they had little commercial presence and therefore little reason to involve themselves regularly in those regions in the traditional forest diplomacy that employed First Nations ceremonies to make and renew the kinship that underlay successful relationships. Particularly after 1713 in the Maritimes, Britain found itself driven to participate repeatedly in the making of formal peace and friendship treaties with the region’s First Nations. The Treaty of Utrecht, ending the War of the Spanish Succession, conveyed “Acadia with its ancient limits” from the control of France to Britain. The French and their mainly Mi’kmaq allies and trading partners never accepted the transfer, and France worked to maintain its power in the region by building a massive fortress, Louisbourg, on Cape Breton to control strategically and economically important shipping lanes in the North Atlantic. France also relied on its traditional trade links with First Nations and the influence its Roman Catholic missionary priests had with the Indigenous population to shore up its presence and frustrate Britain’s intention to take over the region. The British had to work Canada’s Historic Treaties 87 from scratch to establish the peaceful relations with Mi’kmaq, Maliseet, Passamaquoddy, and Penobscot that would make the establishment of British military power, backed up by British-origin agricultural settlers, possible. The result of the contention of the two European powers in the future Maritime region – and the conse- quence of the different relationship the two powers had with First Nations there – was a striking disparity in treaty-making practice. In all their long history in the Acadian region beginning in the early 1600s, France concluded only one formal treaty with the Mi’kmaq. Between 1720 and 1768, Great Britain would enter into no fewer than thirty-two such formal agreements.8 What accounted for the difference was the reality that the French enjoyed solid relations with the Mi’kmaq based on trade and a shared faith, but the British benefited from no such link. Moreover, Britain planned to establish a military and settlement presence that Mi’kmaq viewed as a threat. The French had long been compatible allies, but the British posed a danger both on territorial and religious grounds.9 The unusual circumstances that prevailed in the Maritimes from the Peace of Utrecht to the Peace of Paris resulted in the creation of peace and friendship treaties between the Mi’kmaq and the British Crown that have remained important in Canadian legal history to the present day. Agreements between the interloper and the local First Nations were numerous in this period because the periods of “peace and friendship” that each was supposed to establish never prevailed for very long owing to the basic incompatibility of British and Mi’k- maq uses of territory. The other factor explaining the instability was the fact that the Mi’kmaq, though they had a regional governance structure, were a diverse and localized people. Individual bands had their own interests and acted accordingly. A peace and friendship treaty would be made to end a period of skirmishes and raids, only to break down in another part of Nova Scotia, as Britain called Acadia. Nonetheless, treaties between the Mi’kmaq and the British Crown that were made from the 1720s until 1760–61established important foundational commitments. The first major agreement, Mascarene’s Treaty of 1726, was merely the northern extension of the 1725 Treaty of Boston, which had ended a war between the British and their Ameri- can colonies and the Abenaki, Penobscot, Maliseet, and Mi’kmaq. By it, the First Nations promised they “will hence forward hold and maintain a firm and Constant Amity and Friendship with all the Eng- lish, and will never confederate or combine with any other nation to 88 J.R. Miller their prejudice.” For their part, the British committed to respecting “all their lands, liberties and properties not by them convey’d or sold to or possessed by any of the English Subjects as aforesaid. As also the privilege of fishing, hunting, and fowling as formerly.” The principles of territorial integrity and gathering rights recognized and protected by formal treaty were thus established by Mascarene’s Treaty. These commitments were maintained when the agreement was renewed by the Mi’kmaq and some other First Nations of the region in 1749.10 Shifting power relations between the British and French in the Maritime region brought about modifications in the British approach to formal treaty making in the 1750s. In that period, British officials became increasingly frustrated with both French, Roman Catholic Acadians, who refused to take an oath of allegiance to the Protestant monarch of Britain, and Mi’kmaq groups who stubbornly clung to their relationship with the persistent French. The establishment of the British naval base of Halifax in 1749 began to change the strategic realities in the theatre, and the onset of the Seven Years’ War in the mid-1750s merely formalized the lengthy “cold war” that had been going on between the British and France and its Mi’kmaq allies since the 1720s. A treaty that some Mi’kmaq bands made with Britain in 1752 expanded the written recognition of their gathering rights:

It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting and Fishing as usual and that if they shall think a Truckhouse [state-subsidized trading post] needful at the River Chibenacadie or any other place of their resort, they shall have the same built and proper Merchan- dize, lodged therein, to be Exchanged for what the Indians shall have to dispose of and that in the mean time the said Indians shall have free liberty to bring for sale to Halifax or any other Settle- ment within this Province, Skins, feather, fowl, fish or any other thing they shall have to sell, where they shall have liberty to dispose thereof to the best advantage.

After the close of hostilities in the region, several treaties made in 1760–61 with individual bands of Mi’kmaq modified gathering rights further: “I will not Traffick, Barter, or Exchange any Commodities in any manner, but with such person or the Managers of such Truck- houses as shall be appointed or established by His Majesty’s Governor Canada’s Historic Treaties 89 at Fort Cumberland or elsewhere in Nova Scotia.” Although the significance of the modification of treaty language in the Maritime treaties of peace and friendship is much contested, there is no doubt that the recognition of gathering rights, including in the 1760–61 pacts, has been extremely important. The landmark Marshall decision of 1999 that recognized Mi’kmaq rights to gather to maintain a modest living turned on such language. With the conclusion of the Seven Years’ War and the transfer of French territories to British control by the Peace of Paris in 1763, Britain faced a series of challenges integrating its new North Ameri- can territories into its imperial system. Its response in October 1763 was the Royal Proclamation, a Crown instrument that would turn out to be the most important document in the history of Canadian treaty making. Most of the Proclamation was devoted to issues of governance and justice in the former French colonies, but five paragraphs at its end focused specifically on First Nations and their lands. Partic- ularly south of the St. Lawrence and the lower Great Lakes, Britain faced a restive First Nations population that previously had been allied with France and distrusted intensely the British victors. Indeed, when the Proclamation was issued, an extensive war raged, as First Nations led by the Shawnee chief Pontiac overran most of Britain’s posts south of the lakes and killed close to two thousand soldiers and settlers, although the key decisions about the contents of the Procla- mation had been taken before word of Pontiac’s War reached Lon- don.11 In any event, while formulating the Proclamation, British plan- ners were conscious that they needed to reassure First Nations in the North American interior of the victorious power’s intentions towards them. As the document rather ponderously put the point, “it is just and reasonable and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of our Domin- ions and Territories, as not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.”12 To ensure First Nations were not “molested or disturbed,” Britain effectively closed the interior of the continent to non-Native settlement. It forbade homesteading west of a line drawn along “the heads or Sources of any of the Rivers which fall into the Atlantick Ocean from the West and North-West” and allowed traders access to this western region only if they procured a license from the governor of 90 J.R. Miller one of Britain’s colonies. These severe measures were intended to avoid conflicts between homesteaders invading First Nations lands and Indigenous defenders of their territories. Earlier conflicts had sometimes erupted when non-Native land developers fraudulently obtained a so-called “deed” from some Native who lacked the authority to surrender lands, leading to conflict when settlers who purchased land from the developers attempted to take up the tracts they believed they had bought legally. The Proclamation described these transactions and consequent conflict as “great Frauds and Abuses [that] have been committed in the purchasing Lands of the Indians, to the great Prejudice of Our Interests, and the great Dissatisfaction of the said Indians.” Finally, the Royal Proclamation established rules governing the process by which First Nations’ territories could legally and peacefully be obtained. It decreed that “no private Person” could “make any Purchase from the said Indians of any Lands reserved to the said Indi- ans.” Should a First Nation choose to divest itself of some territory, it “shall be purchased only for Us, in Our Name, at some public Meet- ing or Assembly of the Indians to be held for that Purpose by the Gov- ernor or Commander in Chief of Our Colonies respectively within which they shall lie.” In other words, First Nations’ lands could be acquired legally by non-Natives only through the Crown and its agents, and a meeting to negotiate any such purchase had to be held in the open after being called specifically for the purpose of dealing with territory by an authorized representative of the Crown. The objective of these restrictive conditions was to reassure First Nations in the North American interior that Britain intended to prevent rep- etitions of the “great frauds and abuses” over land that in the past had caused friction and conflict between Natives and newcomers. Britain’s man on the spot in eastern North America, William John- son, took action soon after the Proclamation was issued to ensure that the document would be widely known and influential with First Nations at a time when conflict roiled Indian Country. During the winter of 1763–64 he had copies of the Proclamation circulated to First Nations throughout the eastern half of North America, and in the summer of 1764 he assembled more than two thousand leaders from twenty-four First Nations at a major conference at Niagara. The terms of the Proclamation were outlined and agreement was reached with the First Nations concerning the process it specified for dealing with their territories. A former trader with the Indians, Johnson, Canada’s Historic Treaties 91 whom the British in 1755 had appointed superintendent of the Northern Indians, exemplified how agents of the European powers had learned to use the forms and protocols of Indigenous society in forest diplomacy. Prior to the Niagara conference, he had advised Britain’s North American commander in chief that “we should tye them down ... according to their own forms of which they take the most notice, for Example by Exchanging a very large belt with some remarkable & intelligible figures thereon” to make what he described as “a Treaty of Offensive & Defensive Alliance.”13 At the Niagara conference he presented the leaders with “a large Belt with a Figure representing Niagara’s large House, and Fort, with two Men holding it fast on each side, and a Road through it.”14 The agreement about the Proclamation that was concluded at Niagara in 1764 both continued the tradition of employing Indigenous protocol for treaties and, in effect, initiated a novel method for making a new type of treaty in future. The Proclamation and the Niagara conference set the stage for an era of territorial treaties negotiated and concluded according to its requirements about Crown monopoly in treaty making and open negotiations at meetings called specifically for the purpose of gaining access to “lands reserved to them.” Between the Niagara conference of 1764 and Confederation a century later, an extensive series of territorial treaties was negotiated between the Crown and First Nations in the future Ontario. In three phases, agreements were concluded that opened the way for settlement in southern Ontario and mineral exploitation in the regions north of Lake Huron and Lake Superior. During the initial period down to the War of 1812, twelve treaties with the Mississauga, an Anicinabe people, opened “the front,” the area adjacent to the waterways, to settlement, first, by Loyalists following the American Revo- lution and subsequently by mainly American immigrants seeking free lands in which to expand (figure 7.1). These treaties compensated First Nations for their lands with one-time remuneration, paid in goods, from the Indian Department. After the War of 1812, the process of facilitating immigration and settlement continued by means of ten treaties, now in regions inland from “the front” and in return for annuities, smaller payments disbursed annually, rather than a single lump sum payment (figure 7.2). In the third phase, which occurred between 1850 and 1862, agreements were made in Ontario’s near North to make mineral exploration and inland fisheries around Manitoulin Island possible without major friction (figure 7.3). The 92 J.R. Miller

7.1 Upper Canada treaties to 1812. (Map by William Nelson)

Robinson Huron and Robinson Superior Treaties of 1850 were moti- vated principally by a desire to exploit mineral resources north of the two Great Lakes named, while the Manitoulin Island Treaty of 1862 aimed to put an end to friction that had arisen between Indigenous and non-Native fishers off Manitoulin Island.15 Even during the first phase of territorial treaty making in Upper Canada, there were signs both that traditional protocol was followed and that the requirements of the Royal Proclamation were not always observed carefully. In this early period, when the Crown’s representatives were invariably officials who had been trained in what might be called the William Johnson School of forest diplomacy, the customary Canada’s Historic Treaties 93

First Nations practices were adhered to and the rhetoric of familial relationships was usually employed. Records of many of the councils that fashioned these treaties contain references to the Crown commissioner employing familial rhetoric that evoked the ascribed kinship that Indigenous protocol conveyed. So, for example, a Crown negotiator would invoke the king as a paternal figure looking out for the welfare of his First Nations “children” in Upper Canada. On the other hand, many of the details of treaty making, such as designating precisely what tract of land was covered by a particular treaty, were handled in a slipshod manner. The governor general, Lord Dorchester, was moved to issue instructions in 1794 that were reminiscent of the original Proclamation requirements. Treaties were to be negotiated only by senior representatives of the Crown and only “in public Council with great Solemnity and Ceremony according to the Ancient Usages and Customs of the Indians, the Principal Chiefs and leading Men of the Nation or Nations to whom the lands belong being first assembled.” Crown commissioners “will employ for the purpose such Interpreters as best understand the Language of the Nation or Nations treated with,” and a copy of the agreement “is to be delivered to the Indians, who by that means will always be able to ascertain what they have sold and future Uneasiness and Discontents be thereby avoided.”16 On the other hand, the vitality of the traditional relationship between Native and newcomer was evidenced by the prominent use of Aboriginal protocol. In 1783, for example, after successful negotiation of a treaty, “a large one [wampum belt] was Deliv- ered to the other chiefs concerned in the Sale, with the usual cere- monys [sic] to be kept in the nation [as] a memorial to their Children that they may know what their Fathers had done at this time.”17 Although the procedures might have slipped sometimes, adherence to traditional Indigenous protocols that emphasized kin making as a basis for a treaty relationship endured in the period down to the War of 1812. As heavy immigration from Britain began to fashion a settler society in Upper Canada in the decades following the War of 1812, Native-newcomer relations deteriorated and Crown observance of the requirements of the Proclamation lessened. One sign of the changing times was the fact that Crown officials began to refer to the agreements for territory that they made with First Nations as “indentures,” rather than treaties. The shift implied adoption of a view of the terri- 94 J.R. Miller

7.2 Upper Canada treaties, 1815–1850. (Map by William Nelson) torial agreements as contracts, rather than treaties embedded in ceremonies and kinship that had prevailed earlier. As well, in the cases of both the Robinson and Manitoulin Island Treaties, the Crown did not follow Proclamation requirements by seeking a treaty in advance of intrusions on First Nations’ territory by non-Natives. In the later 1840s, the colonial government authorized mining near Sault Ste. Marie, and the Manitoulin Island agreement was preceded by non- Native fishing near Manitoulin about which officials did nothing for several years. Another indicator, particularly noticeable from the 1840s onward, was that representatives of the new settler society began to succeed Canada’s Historic Treaties 95

Treaty 1850 Robinson-Huron Treaty 1850

Manitoulin Island Treaty 1862

7.3 Upper Canada treaties, 1850–62. (Map by William Nelson) practitioners trained in the Johnson School of forest diplomacy as representatives of the Crown in treaty negotiations. In the steps that preceded the two Robinson Treaties of 1850, T.G. Anderson, the Indi- an Department’s last member of the Johnson School, was supplanted as treaty commissioner by a colonial surveyor, Alexander Vidal, and W.B. Robinson, a member of a prominent family in the Family Com- pact, a small but powerful elite group in Upper Canada. As well, the Crown negotiator of the 1862 Manitoulin Island Treaty was William 96 J.R. Miller

McDougall, as pure a representative of the new settler type and men- tality as could be found in southern Ontario. The final indication that the influence of the Royal Proclamation was waning in Upper Cana- dian treaty making following the War of 1812 was a noticeable reduction in the use of rhetoric and protocol that had previously been used to create and renew ascribed kinship to representatives of the newcomers at treaty councils. Of course, the diminution in the use of traditional ceremonies and familial rhetoric was to be expected from Crown representatives who came from the new settler society rather than the Johnson era in which treaty interactions stemmed from commercial and strategic exchanges with First Nations. In 1850, treaty commissioner W.B. Robinson was instructed by officials not to distribute presents at the negotiations. In fact, he did give gifts, but clearly the government he represented had shifted in its attitudes towards First Nations.18 Judging by the Upper Canadian experience in the century following the Royal Proclamation of 1763, awareness of and sub- scription to the Proclamation’s requirements in relation to First Nations land was nearly dead. What resuscitated the Proclamation in treaty making was the achievement of Confederation and Canada’s desire to integrate the Hudson’s Bay Company (hbc) lands into the new Dominion. The acquisition of Rupert’s Land, as the hbc lands in the northwest were known, was essential to the Confederation deal. But integrating the region into the Dominion was a challenge given its distance from central Canada and the presence in the northwest of large numbers of Aboriginal peoples. In 1869–70, Canada learned the hard way that ignoring local populations did not work, when Métis resistance to the assertion of Canadian rule delayed the transfer of the lands to Cana- da, forced the creation of a new Province of Manitoba, and temporarily jeopardized the Dominion’s strategy of western development. Given the presence of tens of thousands of First Nations in the southern portions of the former Rupert’s Land, it was obvious that the federal government would have to take the initiative to deal with the Indigenous population. Because of their experience in central Cana- da, from which many of the first generation of federal leaders hailed, the nation’s leaders turned almost instinctively to treaty making as the means to smooth the way into the West for the hoped-for settlement of many thousands of agricultural settlers. Between 1871 and 1877, the Dominion did precisely that by means of seven agreements, Canada’s Historic Treaties 97

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7.4 Numbered treaties, 1871–77. (Map by William Nelson) known as the numbered treaties, that covered the region from the Lake of the Woods to the foothills of the Rockies, and from the international boundary to a point approximately halfway up the present- day Prairie provinces (figure 7.4).19 The First Nations who inhabited the forests of northwestern On- tario and the plains region west of it came to the treaty table with attitudes, assumptions, and practices formed during two centuries of commercial dealings in the fur trade. The trade relations of the hbc and western First Nations had been characterized by the use of ceremonies to create and renew regularly kin-like ties that would permit the negotiation of treaties. Western leaders were familiar with formal welcomes, speech making, familial rhetoric, feasting, and smoking the pipe to turn strangers into kinfolk with whom they could safely do business. And, with the exception of Treaty 4 (1874), where the local 98 J.R. Miller

First Nations were angry at the fact that the Hudson’s Bay Company, and not they, had been compensated for the lands supposedly transferred to Canada, Indigenous ceremonies and rhetoric were prominent in the negotiation of the numbered treaties. Indeed, in a couple of the treaties concluded in the Prairies in particular, the First Nations added to the ceremonialism by performing elaborate equestrian displays for the Crown representatives that were expressive of the distinctive Plains culture. What was striking about negotiations in the 1870s – and a development reminiscent of Europeans’ adaptation to First Nations’ practices in the seventeenth and early eighteenth centuries – was that the commissioners whom Canada sent to represent it quickly fell in with First Nations’ ways. In particular, the pipe was smoked in all negotiations except those in 1874, and Crown commissioners were effusive in their use of oratory that emphasized what the Queen Mother, whom they stressed they represented, wanted for and from her First Nations “children.” Canada’s need for peaceful access to the West for economic development and First Nations’ adherence to their own customs combined to revitalize the use of ceremony and kinship in the making of the numbered treaties. On the surface, it appeared that there was surprising convergence of language and practice in the negotiation of the first seven numbered treaties. But in reality there was more dissonance than harmony in the results of the treaty negotiations in the West in the 1870s. Two considerations in particular ensured that the western treaties would produce no end of misunderstanding and friction. First, Canada’s commissioners – and subsequently Canadian politicians – understood the nature of these seven agreements differently from the way First Nations did. To Euro-Canadian officials, the treaties were simply contracts for land, the contents of which were embodied in the written, or government’s, version of the agreement. First Nations had a vastly different, far richer understanding of what they had agreed to in the negotiations. To them, these pacts were covenants, that is, agreements to which the Creator was a party along with the two human agents. Invoking the Creator was part of what the traditional Indigenous ceremonies did, especially smoking the pipe. Moreover, western First Nations noticed the Canadian officials referred to the Christian god frequently, too, and they observed that the Crown treaty parties often included Christian clergy who conducted church services on the Christian Sabbath during the negotiation period. As well, First Canada’s Historic Treaties 99

Nations who entered treaty regarded everything that was said at the negotiations, and not just what the commissioners chose to write down in their document, as part of the treaty which the deity had overseen and the two human groups had agreed upon. The different understandings were significant. In the first place, there was a large gulf between what Crown commissioners promised orally and what was recorded in the final, printed version. Canada’s representatives stressed repeatedly that the treaties did not take anything away from the First Nations and that the Queen Mother wanted them to enter treaty in order to help them. For example, at one point in the Treaty 6 negotiations Commissioner Alexander Morris assured the chiefs, “What I have offered does not take away your living, you will have it then as you have now, and what I offer now is put on top of it.” The printed versions were bereft of such commitments.20 The other reason the numbered treaties quickly turned out to be problematic was that the Government of Canada adopted a different way of relating to all First Nations in Canada before the process of negotiating the western treaties was even concluded. In April 1876, Parliament passed the Indian Act, a consolidation of legislation dealing with First Nations that was premised on the First Nations being legal children, minors, and the federal government as the Crown’s representative playing the role of their trustee or overseer. First Nations understood their relationship with the Crown as embodied in the treaties made the Queen’s Canadian children kin with them, not legal adults who related to them as children in the eyes of the law. This different understanding of the relationship, along with contrasting oral and documentary approaches, have led to charges from First Nations that the Crown does not honour the spirit and intent of the treaties it made. In a treaty relationship based on notions of kinship in which oral commitments constitute part of the agreement, the two parties will work with each other to adjust the application of the treaty to changed circumstances. They do not insist rigidly on adherence to the letter of the government’s printed version of the pact. Canada has ignored complaints from First Nations leaders about the government’s reliance on the Indian Act as the foundation of the Crown–First Nations relationship, and turned its back on its obligations to Indige- nous peoples with whom it is in treaty. The result has been frustration for more than a century for First Nations who took treaty, and an embittered relationship between the Crown and its treaty “partners.” 100 J.R. Miller

Canada showed that it had learned nothing from its blunders in treaty making in the 1870s when it turned to making the last set of agreements that constitute Canada’s historic treaties. Between 1899 and 1921, the Dominion and northern First Nations made a second set of numbered treaties in the northern regions of western Canada and Ontario (figure 7.4). Canada’s principal motive was to gain trouble-free access for entrepreneurs to a northern storehouse of mineral riches and energy. First Nations entered treaties with the Crown, first, to establish a relationship with government that might provide some protection of their lands as economic development on them proceeded, and, second, to secure direct financial assistance through annuities and other forms of remuneration and support that the treaties contained. Treaty 8 (1899) covered northeastern British Columbia, northern Alberta, a bit of the Northwest Territories, and northwestern Sas- katchewan. Treaty 9 (1905) dealt with the mineral-rich part of northern Ontario beyond the northern boundary of the Robinson Treaties of 1850. The next year Treaty 10 brought the portion of northern Saskatchewan up to the recently proclaimed northern boundary that was east of Treaty 8 under a Crown–First Nations Agreement. And Treaty 11 (1921), which embraced the western portion of what is now the Northwest Territories, provided the clearest example of all the agreements of what the central motivation of the federal government was in making these new treaties. For decades Ottawa had ignored requests from First Nations in the future Treaty 11 area to be taken into treaty. But, then, oil was discovered at Norman Wells in 1920, and the federal government moved with lightning speed to conclude a treaty for the region.21 The northern numbered treaties manifested all the problems and pitfalls that the southern agreements had revealed in the 1870s. There was a chasm in understanding between the government and First Nations parties in the negotiations. This difference was revealed most starkly in the diminished amount of Aboriginal protocol involved in the northern negotiations. The only remnant of such ceremonialism was the feast that concluded successful negotiations, but it was obvious from the attitudes of the government negotiators that they did not understand the symbolic importance of this rite. As well, particularly in the case of Treaty 9, there was an enormous difference between what was promised orally in the negotiations and what terms made it into the government’s written version of the agree- Canada’s Historic Treaties 101

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7.5 Numbered treaties, 1899–1921, and adhesions. (Map by William Nelson)

ment.22 Inevitably, decades of misunderstanding and friction were the result of these treaties, too. With the exception of the so-called Williams Treaties in 1923, the northern numbered treaties concluded the making of Canada’s historic treaties. The Williams Treaties in south-central Ontario simply rectified some of the errors in treaty making that had occurred in the late eighteenth century. Put to the bands that had been affected by the errors in early Upper Canadian treaty making on a take-it-or-leave-it basis, the agreements provided one-time compensation on a per capi- ta basis, the sum amounting to about one-quarter of a million dollars. The negotiation of the Williams Treaties featured no kinship-making ceremonies, and the final documents contained no guarantees of continuing hunting and fishing rights. Dubious as the credentials of the 1923 agreements were to be considered treaties in the Canadian 102 J.R. Miller treaty-making tradition, they were the last treaties made for half a century, apart from important adhesions to existing treaties in northern Ontario and Manitoba. The federal government soon found itself pre- occupied with combatting the Great Depression and then fighting the Second World War, and in any event the Dominion now had acquired access to vast amounts of territory in Indian country that kept it and its entrepreneurial partners busy for several decades. It would not be until after 1945, when the Canadian economy entered a prolonged expansion based on the rapid extraction and export of natural resources, that the necessity to treat with First Nations for access to new resource-rich lands emerged again. As the issue of access to resources came to a head in the 1970s, governments and developers who hitherto had had a free hand getting the right to develop resources on First Nations’ land found that the rules of the game had changed. When the government of Quebec proposed in the early 1970s to develop the hydroelectric power potential of a vast area of the James Bay watershed, it found itself confronted by assertive Cree and Inuit leaders who took it to court and nearly managed to get the project halted in its tracks. Prudently, the provincial and federal governments turned to negotiating what would become the James Bay and Northern Quebec Agreement (jbnqa) in 1975, the first treaty since 1923.23 In 1978, the jbnqa’s provisions were extended to some of the territories of the Innu in the Northeastern Quebec Agreement. While that process was playing out in Quebec, in 1973 the Supreme Court of Canada revolutionized Aboriginal law by its decision in what was known as the Calder case, litigation by the Nisga’a to establish title to their homeland in the Nass River valley. Frank Calder and his Nisga’a colleagues did not succeed in their action – the judges split into three groups, and the deciding justice ruled against the First Nation on a procedural point – but six of the seven jurists who heard the case concluded that at some point the Nisga’a had held Aborigi- nal title to the lands they claimed. The case established the new reality that Aboriginal title existed as part of Canadian common law.24 The implications of the James Bay conflict and the Calder decision, the federal government realized, were enormous. Ottawa responded by announcing that it would negotiate Aboriginal claims, and in 1974 it created the Office of Native Claims (onc) and set up procedures to resolve claims by First Nations and other Indigenous groups. In time, the onc procedures evolved to draw a distinction between what the Canada’s Historic Treaties 103 federal government called comprehensive claims and specific claims. Specific claims were allegations that the Crown had not fulfilled some lawful obligation it had, usually from a treaty or a term of the Indian Act, while comprehensive claims were assertions that the claimant held unsurrendered Aboriginal title to territory. Both the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement were classified by the government as comprehensive claims settlements. Apart from these two, the Inuvialuit comprehensive claim settlement in 1984 set a pattern for the North. Com- prehensive claims settlements are a form of treaty, and in northern Canada, they have become the principal form of treaty making over the last forty years. The Nisga’a Treaty of 1998 and the Nunavut settlement are both classified, technically at least, as comprehensive claims settlements. These “treaties” and the few agreements that have struggled forth from the British Columbia Treaty Commission process constitute the current and continuing form of treaty making in twenty-first century Canada. More detailed analysis of these modern treaties can be found in other chapters of this volume. The Canadian treaty-making tradition began five centuries ago and has gone through many phases. At first, commercial compacts and informal treaties of alliance and friendship were negotiated according to First Nations’ practices and protocols that created a kin-like relationship between the First Nations and European newcomers through the use of Indigenous rituals. For a time, a ceremonial approach to kin making persisted when a third form of treaty, the territorial treaty, began to be negotiated according to the specifications of the Royal Proclamation of 1763. The Crown was never completely faithful to the requirements of the Royal Proclamation, as the Upper Canadian treaties revealed, and over time newcomers’ willingness and ability to engage in ceremony to create kinship as part of treaty making waned. By the time the Upper Canadian treaties were concluded with the Robinson and Manitoulin Island Treaties, the old ways of forest diplomacy were almost completely extinct. Ceremonies to make kin of strangers and facilitate treaty making were revived in the Cana- dian west in the 1870s by First Nations who had developed these practices to deal with European newcomers in the fur trade. But Canada did not remain committed to the traditional approach. The passage of the Indian Act in 1876 and the erosion of the use of protocols and ceremony in the northern numbered treaties between 1899 and 1921 104 J.R. Miller made it clear that the Crown now preferred to deal with First Nations as legal children following the Indian Act, rather than as kinfolk according to Aboriginal practice to which the Crown had once sub- scribed. The result has been frustration, bitterness, and political and legal conflict between what should have been treaty partners. Canada missed an opportunity to ensure good relations between Indigenous and immigrant peoples in the late nineteenth century. Had the federal government adhered to the policy of seeking to make kinfolk of First Nations through ceremonialism as its representatives had done in the 1870s, Native-newcomer relations might have been harmonious. Certainly, that is what First Nations leaders wanted to accomplish when they participated in ceremonies to make kin of Queen Victoria’s people. Indeed, that is what they believed they had accomplished until Canada’s stern reliance on the Indian Act as a governor of government relations with First Nations proved otherwise. If Canadians are to overcome the problems that have emerged in the Crown–First Nations relationship, they will need to rediscover the desire to establish kinship rather than legalistic relations with the Indigenous population. Given the growing numbers of Aboriginal people in Canada and the steady accumulation of court precedents favouring them since the creation of the 1982 Constitution’s recognition and affirmation of Aboriginal and treaty rights, the smoothest path to a better relationship seems clear. The Crown and Canadians need to rediscover the spirit of the Royal Proclamation of 1763’s clauses on First Nations’ territorial rights and treaty making, and appreciate that they were based on Indigenous practices that aimed at creating kinship between Natives and newcomers as the basis for a harmonious and fruitful relationship. The Aboriginal Constitution 105

Negotiation and Implementation of Modern Treaties between Aboriginal Peoples and the Crown in Right of Canada

terry fenge1

introduction

When Europeans arrived in North America, they found a continent used and occupied by culturally, linguistically, and economically diverse Aboriginal peoples.2 A trading relationship quickly developed between European newcomers and Aboriginal peoples, and from the early years of contact following their mutual discovery, Aboriginal peoples and settlers tried to manage their relations by negotiating agreements. This chapter focuses on one element of this long, complex, and still unfolding story: the negotiation and implementation in Canada of comprehensive land claims agreements – “modern” treaties – between the Crown and Aboriginal peoples. As of January 2014, twenty-four such agreements applying to approximately 45 per cent of the country have been negotiated and ratified since modern treaty making was initiated in 1973.3 Negotiations continue, particularly in British Colum- bia, the southern portion of the Mackenzie Valley in the Northwest Territories (nwt), eastern Ontario, and parts of southern Quebec, Lab- rador and the Maritimes. No attempt is made in this chapter to analyze specific modern treaties above and beyond identifying the broad range of rights and benefits they define. Instead, the purpose of this chapter is to review the evolution of the policy of the Government of Canada toward negotiation, ratification, and implementation of modern treaties; to 106 Terry Fenge outline the advocacy of Aboriginal peoples to promote full and effective implementation of these agreements; and to chart and comment upon the response of the Government of Canada to that advocacy. Public policies – statements of intent that guide decisions to achieve objectives – are important because they generally outlast the tenure of governments that make them and ministers that announce them. This is certainly the case with the policy of the Government of Canada in response to the land claims of Aboriginal peoples. There have been twenty-two ministers of Indian Affairs and Northern Development since Jean Chrétien, minister of Indian Affairs and Northern Devel- opment from July 1968 to August 1974, announced on 8 August 1973 the Government of Canada’s willingness to negotiate Aboriginal land claims.

background

Treaty making between the Crown and Aboriginal peoples predates the establishment of both Canada and the United States. Beginning in the early seventeenth century, treaties have addressed peace, friendship, and coexistence; military alliance; trade and economic development; and land cession.4 The Royal Proclamation of 1763 through which King George III of Great Britain structured the governance of territories newly acquired from France through the Seven Years’ War of 1756–63 is important in this story. The Proclamation acknowledged the existence of Aboriginal title and laid out basic principles and procedures through which the Crown would, through consent and by agreement at a “publick Meeting or Assembly,” negotiate to acquire Indian land through purchase.5 This approach was continued in British North America following the 1783 Treaty of Paris, through which Great Britain accepted the independence of the former American colonies. Treaty making continued in the remaining British North America. Upon Confederation in 1867, the Govern- ment of Canada assumed the responsibility of treaty making as settlement moved west. Nineteenth-century treaties featured either lump sum cash payments or annuities, reserves, guarantees of hunting, fishing, and trapping on unoccupied Crown land in traditional territories and, in some instances, implements and seed to promote a transition from hunting and gathering to agriculture. One treaty famously promised a “medicine chest.” Oral versions of historic treaties handed down from generation to generation by Aboriginal Negotiation and Implementation of Modern Treaties 107 peoples are often at odds with versions recorded by the Crown’s representatives, raising questions about the claimed legitimacy of the cession of Aboriginal title. Modern treaties are considerably more detailed, comprehensive, complex, and challenging to negotiate and implement than those the Crown concluded with the Mi’kmaq and Maliseet in the Maritimes in the early to mid-eighteenth century, in Upper Canada following the American War of Independence, across the Prairies in the nineteenth century, in northern Alberta and southern nwt in 1899, and in the Mackenzie Valley in the nwt in 1921. Treaty making ended in 1923 with the conclusion of agreements in central and southern Ontario named after the Crown’s lawyer A.S. Williams. The end of historic treaty making left Aboriginal peoples in Yukon, much of the nwt, northern Quebec, Labrador, and most of British Columbia without treaties or the prospect of negotiating them, for in 1927 the federal Indian Act was amended to make it illegal to raise funds to pursue Aboriginal land claims against the Crown. This prohibition remained in place until 1951. Things began to change following the Second World War.6 A special joint committee of the House of Commons and Senate in 1948 recommended the establishment of an Indian Claims Commission to address treaty-based grievances. Although this recommendation was rejected by Cabinet, the Indian Act was amended in 1951 to remove the prohibition on fundraising for Aboriginal land claims, opening the way for Aboriginal peoples to litigate their claims if they could afford to do so. Another joint committee established by the Diefen- baker government in 1958 to inquire into Indian grievances also endorsed the concept of an Indian Claims Commission. A bill to establish an Indian Claims Commission to advise the Government of Canada on treaty-based grievances was presented by the Pearson government to the House of Commons in 1964 and again in 1965, but these bills did not get past first reading.

the 1969 white paper

Swept to power in the 1968 federal election with a commitment to “participatory democracy” as a means of creating a “just society” and committed to the rights of individuals and opposed to “special status” for Quebec, Prime Minister Trudeau in 1969 released a “white paper” that similarly rejected “special rights” for Aboriginal peoples.7 The 108 Terry Fenge

White Paper characterized promises in existing treaties as “limited and minimal” and suggested that Aboriginal claims to land “are so general and undefined it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to Indians as members of the Canadian community.” Correctly interpreting this as a denial of their heritage, status, identity, and treaty relationship with the Crown, Indigenous peoples widely opposed the White Paper, most tellingly in Harold Cardinal’s The Unjust Society.8 Sally Weaver convincingly analyzes the machinations within the Government of Canada that led up to the White Paper and its consequences, including the politicization of Aboriginal peoples.9 Christa Scholtz believes that nationwide protests that followed the release of the White Paper established a political context in which a policy reversal, which occurred in 1973, became possible, even likely.10 She cites contemporary litigation and political action resulting from the lack of fulfillment of Treaties 8 and 11, and opposition by Cree and Inuit to plans by the Government of Quebec to develop the hydropower potential of the La Grande River in northern Quebec, as additional factors. Commentators generally credit the January 1973 Calder split decision of the Supreme Court of Canada, which acknowledged the existence in Canadian law of Aboriginal title regardless of any grant or act of recognition by the Crown, for the policy reversal six months later.11 Calder was mounted by the Nisga’a of British Columbia more than a year before the release of the White Paper and named after hereditary chief Frank Calder. The Nisga’a had for decades been arguing and agi- tating for recognition of their rights to land.12 Scholtz, however, con- cludes: “When the Calder decision came down, it did so in a context of Cabinet support already shifting in favour of negotiation. Calder did not so much create proponents for the negotiation option as it further weakened the opposition.”13

committing to modern treaties: the 1973 announcement

On 8 August 1973, Minister Chrétien announced that the Govern- ment of Canada would negotiate land claims with Aboriginal peoples who had not concluded historic treaties with the Crown and whose Aboriginal title to land had not been superseded by law.14 The new Negotiation and Implementation of Modern Treaties 109 policy promised that “compensation or benefit” would be provided in return for the “interest” of Aboriginal peoples in land. Agreements were to have the “finality and binding force of law.” While not speci- fying the scope or range of benefits to be negotiated, the minister said: “Claims are not only for money and land, but involve the loss of a way of life. Any settlement, therefore, must contribute positively to a lasting solution of cultural, social and economic problems that for too long have kept the Indian and Inuit people in a disadvantaged position with the larger Canadian society.” Clearly reflecting the activist intent of the Trudeau government, the policy closed, “The Government views this claims policy in the context of other policies intended and designed to remove the sense of grievance and injustice which impedes the relationships of the Indian and Inuit peoples with the governments concerned and their fellow Canadians.”

the aftermath

The 1973 announcement that the federal government would negotiate Aboriginal land claims was historic, and it triggered funding from the government to Aboriginal peoples, enabling them to document their use and occupancy of land and natural resources15 and to develop formal land claims proposals. The mid- to late 1970s was largely a period of preparing to negotiate. During this time, however, two important agreements were reached: the James Bay and Northern Quebec Agreement, involving Cree and Inuit, was finalized in 1975, and the Northeastern Quebec Agree- ment involving the Naskapi was concluded in 1978. This year also saw the Inuvialuit of the Beaufort Sea region and the Government of Canada initial an Agreement-in-Principle. The James Bay and North- ern Quebec Agreement was concluded very quickly as a result of political pressure that reflected construction, already underway, of the La Grande hydropower project,16 and the Inuvialuit Agreement-in- Principle reflected the assumed imminence of oil and gas development in the Beaufort Sea region. In these two cases lies an important insight: it has been the prospect of development on land to which Aboriginal peoples assert ownership, as well as court decisions and political agitation, that have persuaded the Government of Canada to negotiate treaties, both historic and modern. The assertion of rights that flow from the existence of Aboriginal title has been characterized 110 Terry Fenge by the federal and many provincial governments for years as a “barrier” to development. Aboriginal peoples feel very differently about this issue, but the removal of the alleged barrier was – and to a significant degree remains – the Government of Canada’s motivation to negotiate Aboriginal land claims.

in all fairness

Under the direction of John Munro, minister of Indian Affairs and Northern Development, the Government of Canada on 16 December 1981 released In All Fairness, a formal policy statement that reiterated and elaborated on the 1973 announcement.17 Developed to give “context” to what had happened in the intervening years and to indicate how the Government of Canada would proceed in the future, In All Fairness stressed the need for settlements to be “final” and to provide legal certainty to ownership of lands and natural resources. It also stated that “Negotiations are designed to deal with non-political matters arising from the notion of aboriginal land rights such as lands, cash compensation, wildlife rights, and may include self-government on a local basis.” Lands to be owned by Aboriginal people should be traditional lands “currently used and occupied,” with equitable arrangements for third parties to access and travel across Aboriginal land for development purposes. The door was opened for Aboriginal representation on committees and boards to manage Crown land. Monetary compensation could be in cash, government bonds, or other forms of debentures, but had to be “specific and finite.” While compensation funds would be treated as capital transfers exempt from tax, derived income would be fully taxable. Settlements could provide “preferen- tial rights” to wildlife on Crown lands and “Participation in wildlife management, such as making recommendations to the government on the establishment and maintenance of wildlife quotas or providing advice on the formulation of management policies and other related matters.” Subsurface rights could be included in settlements “in some cases” as an “incentive to participate in resource development,” but programs “geared solely to Natives” were not to be included. In All Fairness prompted the categorization of claims into “comprehensive” and “specific” – the former based on assertion of Aboriginal title and continuing land use and occupancy, and the latter reflecting non-fulfillment Negotiation and Implementation of Modern Treaties 111 of provisions of historic treaties or stipulations of the Indian Act. The government claimed personnel and resource limitations; as a result, active negotiations were undertaken with only six claimant groups.

Constitutional Renewal

In All Fairness was released in the midst of political and constitutional ferment in Canada that resulted in the patriation of the constitution through the Constitution Act, 1982, proclaimed by Her Majesty Queen Elizabeth II in Ottawa on 17 April of that year. The Constitution “recognized and affirmed” the “existing treaty and aboriginal rights of the aboriginal peoples of Canada.” A 1983 amendment specified that “treaty rights” include “rights that now exist by way of land claims agreements or may be so acquired.”18 The amendment had been adopted in March 1983 at a First Ministers’ constitutional conference devoted to Aboriginal issues. Three further such conferences were convened in 1984, 1985, and 1987 to focus on Abo- riginal self-government and related issues, but failed to agree to an “inherent” right of Aboriginal self-government to be inserted in the Constitution. Nevertheless, the constitutional discussions of the early to mid-1980s generated considerable publicity on the land claims of Aboriginal peoples.

In All Fairness Exposed

As comprehensive land claims negotiations with the six Aboriginal organizations proceeded during the 1970s and early 1980s, it was readily apparent that the parties had different visions of what these processes should achieve. Aboriginal peoples were looking for settlements to provide for self-government, economic development, environmental protection, cultural enhancement, substantial ownership of land and natural resources, capital transfers, and more. They wanted settlements to provide for their future prosperity as peoples and objected to the principle of “extinguishing” their rights in order to obtain defined benefits. The Government of Canada, it was broadly claimed, was working from a relatively simple land-and-cash formula (not too dissimilar to the eleven numbered treaties concluded between 1871 and 1921 and the two Williams Treaties of 1923) as a means of extinguishing Aboriginal title and Aboriginal rights. 112 Terry Fenge

This clash of visions was starkly revealed in a June 1983 workshop in Yellowknife hosted by the Canadian Arctic Resources Committee (carc) and chaired by Ronald Doering, a lawyer highly knowledge- able about the political and economic circumstances and aspirations of northern Aboriginal peoples.19 At the workshop, negotiators from Aboriginal organizations and the Government of Canada and Clovis Demers, executive director of the Office of Native Claims in the Department of Indian Affairs and Northern Development, participated in a frank and sometimes bruising discussion. John Merritt of Inuit Tapirisat of Canada excoriated In All Fairness as a “chronically ambiguous” commitment to avoid “hard statements of purpose and intent.” He said that In All Fairness, as interpreted by federal negotiators, was preventing Inuit from participating in and gaining royalties and other benefits from non-renewable resource development; he asked, “What incentives will exist for them to welcome non-renewable resource development in their homelands?” His analysis was reiterated by Aboriginal negotiators from the Mackenzie Valley and Yukon, many of whom complained about the refusal of line agencies of the Government of Canada to share authority with Aboriginal peoples. Bob Mitchell, former federal chief negotiator on the Inuit of Nunavut land claim, bluntly characterized the attitude of federal agencies committed to the status quo as “totally inconsistent with the concepts enunciated by the Government of Canada ten years ago and restated in In All Fairness.”

living treaties: lasting agreements

When Brian Mulroney’s Progressive Conservatives assumed power in September 1984, comprehensive land claim negotiations across the country were progressing very slowly and Yukon First Nations had just rejected a land claims agreement concluded with Pierre Trudeau’s Liberal government. The federal policy to extinguish Aboriginal rights through negotiated agreements was clearly at odds with the recent inclusion of “existing” Aboriginal rights in the Canadian Con- stitution. David Crombie, former mayor of Toronto, was appointed minister of Indian Affairs and Northern Development, a position he held from September 1984 to June 1986. Murray Coolican, former executive director of carc, became Crombie’s interim chief of staff, followed early in 1985 by Ronald Doering, who remained in this position until the minister left the portfolio. John Merritt was appointed Negotiation and Implementation of Modern Treaties 113

Crombie’s special assistant. This new ministerial team appreciated the need to reform the federal land claims policy but did not believe the Department of Indian Affairs and Northern Development could develop creative policy options, either substantive or procedural, and certainly not within a reasonable period of time.20 In early summer of 1985, Coolican was appointed chair of a highly capable six-person task force to “review all aspects of the current comprehensive claims policy and make recommendations as to the future policy.”21 The task force met with fifty Aboriginal organizations and received seventy-six briefs from government agencies, environmental and public interest organizations, and business groups, as well as Aboriginal peoples and, remarkably, completed its work within six months. Its report was made public in March 1986.22 Living Treaties: Lasting Agreements, the report of the task force, set out a bold new rationale and vision for comprehensive land claims agreements. An entirely new appreciation of the purpose and promise of comprehensive land claims agreements was needed, one that could then be grounded in a policy that abandoned the requirement for blanket extinguishment of Aboriginal rights and broadened the range and type of benefits that could be included. Comprehensive land claims agreements should seek to build relationships and provide for sharing of power and wealth generated by development of natural resources in traditional territories. The emphasis should not be on compensation for something ceded or surrendered to the Crown, but on tools, techniques, processes, and resources needed to equip Abo- riginal peoples to take their rightful place within Canada. The task force advised that modern treaties look to the future rather than respond to the past. The task force recommended abandonment of the policy of “super- session by law,” through which some Aboriginal peoples had without their consent been dispossessed of their land. Some who provided briefs encouraged the task force to recommend the negotiating process be legislated so as to focus political and departmental attention on the task at hand and to reduce the time required to reach agreements; the task force, however, opted instead for an independent commissioner to monitor and report on negotiations, a “keeper of the process” arrangement adopted some years later by the British Colum- bia Treaty Commission. The commissioner, the report recommended, should also have responsibility to monitor the effectiveness of agreements’ implementation. 114 Terry Fenge

The report did not delve into the details of Aboriginal self-government because, in 1985, discussions were still underway between First Ministers and Aboriginal leaders about entrenching the “inherent” right of self-government in the Constitution. Nevertheless, the task force believed that Aboriginal self-government and settlement of comprehensive land claims were two sides of the same coin. Addi- tional recommendations identified the need for framework agreements to define the negotiating agenda, the need for publicly accessible information about the process, the need for the Government of Canada to negotiate issues within its jurisdiction even if provincial governments refused to participate, and the need to remove the rule that government would negotiate with only six groups at a time. Essentially, the task force recommended replacing adversarial negotiations, which all too often resulted in winners and losers, with cooperative negotiations to build long-term relationships based on mutual respect and sharing of power and wealth. The task force bluntly advised that if a new policy was to succeed, it could “not conflict with the fundamental objectives of the aboriginal groups.” With the recommended attitude and approach, the task force envisaged Aborigi- nal peoples would become “contributors to Canada, as distinct, prosperous and non-dependent societies within Confederation.”

the comprehensive claims coalition

The response by Aboriginal peoples to the Coolican report was unbri- dled enthusiasm. Comprehensive land claims negotiations had come to a virtual halt in early 1986 as Aboriginal organizations waited for the Government of Canada to respond. In April 1986, to hasten a favourable response, the six groups in negotiation joined with three hoping soon to begin negotiations to form the Comprehensive Claims Coalition (ccc).23 The coalition’s first order of business was to agree on what it wanted in a new policy, and to this end developed a 1,500-word statement called “Key Components of a New Federal Policy for Comprehensive Land Claims,” which the group supplemented in October 1986 with a “Self-Government Policy Statement.”24 These statements characterized the land claims policy status quo as untenable and stressed the need to build relationships through agreements that benefited both parties. Agreements should address land and natural resource ownership and management, economic development, self-government, and Negotiation and Implementation of Modern Treaties 115 cultural and social sustainability, the coalition argued. The language of these statements was unerringly similar to that in the letter of trans- mittal that had prefaced the Coolican report. Essentially the coalition wanted its members to be able to put virtually anything on the table in their respective negotiations with the Crown. With the encouragement of David Crombie and his staff, the coalition lobbied civil servants and politicians. Representatives of Inuit and First Nations fanned out across the country – one team covered Canada east of Toronto and another team covered the country to the west – to speak to surprisingly attentive audiences organized by churches, environmental groups, public interest organizations, and professional associations. Meetings with editorial boards of regional newspapers and popular television talk show hosts paid dividends, resulting in several supportive editorials that the coalition circulated widely in Ottawa. What transpired from April to December 1986, when a new policy was announced on the floor of the House of Commons, has been reported by the Comprehensive Claims Coalition in the following way:

In mid-May, the first draft of diand’s policy proposal was circulated to federal agencies for review and comment … The response was chilly. Much of this reaction seems to have been the result of ignorance about the legal and moral basis of land claims. In late May, deputy ministers of those federal departments most directly affected by land claims met under the chairmanship of the deputy minister of diand to discuss the policy proposal. By all accounts, diand was surprised at the rocky reception its proposal received, for the assembled deputy ministers could not agree even on the Coolican Report’s most fundamental recommendation: that land claims settlements affirm, rather than extinguish, aboriginal rights … There was concern that the cost of implementing a new land claims policy might be as high as $12 billion … Federal agencies demanded to know the full financial picture before backing the proposal. Lacking the support of other departments, Mr. Crombie was unable to present a formal proposal to Cabinet … The policy initiative was not dead, but it had been badly wounded. Prime Minister Mulroney shuffled his Cabinet in early summer … Saskatchewan MP Bill McKnight took over the Indian Affairs and Northern Development portfolio [from June 1986 to January 116 Terry Fenge

1989], and with him came a new team to deal with land claims policy. In early September Mr. McKnight met with the Comprehensive Claims Coalition. The minister stressed his willingness to carry on where Mr. Crombie had left off, and opined that the new land claims policy should be “practical” and provide “finality” to land claims. He warned that the government was increasingly nervous about the likely cost of settling land claims. In early October, Mr. McKnight said that he would recommend to Cabinet a national land claims policy composed of “general principles” and would approach Cabinet for detailed mandates to negotiate individual claims … In late October, at a meeting of the Cabinet Committee on Social Development, Mr. McKnight was able to note that the Prime Minister had been fully informed on the issue and that he was in broad agreement with the proposal. At a subsequent meeting of the Cabinet Committee on Priorities and Planning – the so-called “inner Cabinet” – on 16 December, Mr. McKnight’s land claims policy proposal received formal approval. Two days later, the new policy was unveiled in the House of Commons and published early in 1987.25

the 1986 land claims policy

While purporting to be “new,” the 1986 Comprehensive Land Claims Policy was nothing of the kind.26 It reformed certain key components of In All Fairness but did not state the political, economic, social, or other objectives that modern treaties should achieve, and it dealt as much with process as with substance. Key reforms included:

1 Abandonment of the requirement for blanket extinguishment of Aboriginal rights. Future settlements would only require relin- quishment of Aboriginal rights relating to land; 2 Acceptance of the relationship between land claims agreements and Aboriginal self-government, particularly in the administration of lands and natural resources. Aboriginal representation was to be permitted on boards and committees with measures of decision-making rather than purely advisory powers to manage public as well as Aboriginal lands; 3 Inclusion of offshore issues, including wildlife harvesting and management of renewable resources, to the land claims agenda; Negotiation and Implementation of Modern Treaties 117

4 Inclusion of resource revenue sharing from development on land and marine areas to the land claims agenda; 5 Commitment to consult and protect the legitimate interests of third parties and to safeguard the public interest; and 6 Commitment to negotiate framework agreements to define the full scope and intent of land claims settlements.

In this new policy, certainty, finality, and predictability had won out over the Coolican report’s call for negotiating mandates that would allow flexibility of results to reflect differing cultural, geographical, and economic circumstances. Ownership and management by the Crown of subsurface resources remained a key public policy objective and it was unclear what “sharing” of resource revenues actually meant. The policy statement was particularly weak on implementation, including only one sentence to the effect that implementation plans should be completed by the time agreements were finalized. It was silent on Coolican’s proposed independent commissioner, and also gave no indication of the Government of Canada’s plan if provincial governments refused to engage. The policy said virtually nothing about Aboriginal self-government. The reaction to the 1986 land claims policy by the members of the Comprehensive Claims Coalition was mixed: cautious optimism by some, particularly Inuit, but disappointment by others. The 1986 policy made important additions to what could be included in negotiated agreements but was far less comprehensive in its approach than the Coolican task force had recommended. Ottawa had amended and improved its policy but not changed its paradigm. Land claim negotiations would remain largely adversarial.

from policy to agreements

Following adoption of the 1986 land claims policy, discussions quick- ened, the number of modern treaties under negotiation increased, and the scope of prospective agreements broadened (figure 8.1). Several agreements-in-principle and final agreements were concluded, particularly in the early to mid-1990s under Tom Siddon, minister of Indian Affairs and Northern Development from February 1990 to June 1993. Each delivered legal certainty to ownership and management of land and natural resources and provided for Aboriginal people, in exchange, different blends of broadly similar rights and benefits. 118 Terry Fenge

The Yukon Umbrella Agreement-in-Principle (1988) and the Nun- avut Agreement-in-Principle (1990) (figure 8.2) showed that negotiations could result in comprehensive agreements, but there were also major setbacks. After having been signed by Prime Minister Mulroney, the Mackenzie Valley Dene/Métis Agreement was disavowed in 1990 by Dene and Métis in the southern Mackenzie Valley on the grounds that it did not provide for self-government and required the extinguishment of land-based rights. At the request of First Nations in the northern portion of the valley, regional negotiations commenced, resulting in the Gwich’in (1992), Sahtu Dene and Métis (1993), and Tlicho (2003) agreements. Twenty-five years later, negotiations with the Deh Cho and Akaitcho in the southern Mackenzie Valley continue, but intermittently. The Nunavut Land Claims Agreement, including a non-constitutional promise to create a Territory of Nunavut, was ratified in 1993 (figure 8.3), as was the Yukon Umbrella Final Agreement, which, before the end of the year, resulted in four of the territory’s fourteen Aboriginal First Nations becoming self-governing. Attitudes were changing even on the west coast when, following a provincial referendum in 1991, the Government of British Columbia reversed its historic position and agreed to participate in Aboriginal land claims negotiations. An independent British Columbia Treaty Commission was established in 1992 to facilitate negotiations involving the federal and provincial governments and First Nations. The story of Aboriginal land claims on the west coast is very much connected with the advocacy and agitation of the Nisga’a Nation, which began in the nineteenth century and continued unabated throughout the twentieth. The 1973 Calder decision by the Supreme Court of Canada effected change nationally and even internationally,27 and led to the Nisga’a Final Agreement of 1998, concluded outside the “made in bc” treaty process announced in 1991. In political and constitutional terms, the late 1980s to early 1990s was a time of national angst. The 1987 Meech Lake Constitutional Accord, which aimed to bring Quebec into the Canadian constitutional family but which did not address the self-government aspirations of Aboriginal peoples, failed in 1990. The same year saw the “stand off” in Oka, Quebec between Mohawks and the Canadian army – a dispute about ownership of land that had been simmering for scores of years – attract worldwide attention, putting Canada, unusually, on the international stage. As constitutional debate contin- Negotiation and Implementation of Modern Treaties 119

8.1 Modern treaties, 1975–2013. (Map by William Nelson)

ued, Prime Minister Mulroney in 1991 established the Royal Com- mission on Aboriginal Peoples, in part to persuade First Nations, Inuit, and Métis to support constitutional development through what in 1992 became the Charlottetown Accord.28 The August 1992 Charlottetown Accord, which did provide for Aboriginal self-government and also brought Quebec into Canada’s constitutional family, failed in a national referendum two months later. The reaction in Quebec was to elect a separatist Parti Québécois government, which sponsored a secession referendum in 1995 in which Canada came perilously close to breaking apart. Addressing Aboriginal land claims and providing for Aboriginal self-government were important components of these dramatic and often unsettling political developments. The Government of Canada may well have concluded that accommodating these demands and aspirations 120 Terry Fenge

8.2 The signing of the Nunavut Land Claims Agreement-in-Principle in Igloo- lik on 30 April 1990. From left: Dennis Patterson, premier of the Northwest Territories; Paul Quassa, president of the Tungavik Federation of Nunavut; and Tom Siddon, federal minister of Indian Affairs and Northern Development. (Photo courtesy of Hans Blohm) would signal internationally as well as nationally that the country was not on the verge of breaking up. Each promise in a land claims agreement confers a constitutionally protected right, but the agreements themselves, hundreds of pages in length, are full of legalese and virtually unreadable, certainly to the uninstructed layperson.29 The same can be said of implementation plans, which in some cases are longer than the agreements themselves. The impenetrability of agreements and implementation plans likely explains, at least in part, why the public and the media have only a hazy understanding of what modern treaties say and do.30 Broadly, modern treaties address:

• Ownership of lands, waters, and natural resources. Aboriginal peoples usually end up owning in fee simple 10–20 per cent of their traditional territories over which they have been able to show traditional and continuing use and occupancy, but only a small por- Negotiation and Implementation of Modern Treaties 121

tion of which includes the subsurface. The geographical pattern of land ownership can vary markedly. Tlicho land, for example, is concentrated in one large parcel that underlies the four Tlicho communities. The Nunavut agreement, on the other hand, identi- fies approximately 1,100 parcels of Inuit Owned Lands, spread throughout Nunavut.31 Land is selected for various cultural, harvesting, historical, and economic reasons. Generous access to Abo- riginal land is commonly provided to the public; • Management of lands, waters, and natural resources, including fish and wildlife. This is usually manifested through Aboriginal representation on public boards or committees established through legislation pursuant to the agreements; • Harvesting of wildlife, including fish; • Environmental and social assessment of proposed development; • Economic development. This may be through negotiation with developers of Impact and Benefit Agreements; • Capital transfers. In the early 1990s, the cash compensation component of modern treaties was in the order of $25,000 to $35,000 per person, paid over several years. Money loaned to Aboriginal peoples to facilitate negotiations is repaid over the same time period; • Government contracting through bid preference or other mechanisms but not legally binding quotas; • Royalties from resource development. Aboriginal royalty shares are usually in the order of 50 per cent of the first few millions of dollars and 5–10 per cent thereafter. Importantly, Aboriginal peoples are not eligible through land claims agreements to share in personal and corporate taxes generated by resource development in their settlement areas; • Establishment and involvement in management of parks, ecological reserves, and conservation and wildlife areas; and • Expression and enhancement of Aboriginal social and cultural realities and aspirations.

the 1993 policy reiteration

In March 1993, in the dying months of Tom Siddon’s tenure as minister of Indian Affairs and Northern Development, the Government of Canada published a lengthy statement, Federal Policy for the Set- tlement of Native Claims,32 which pulled together various strands of 122 Terry Fenge its response to Aboriginal land claims. Dealing as much with specific claims and treaty land entitlement as well as modern treaties, the document revealed the Government of Canada’s narrowly technical and legal approach. In a manner far removed from the vision and advocacy of the Coolican task force, which had emphasized relationship building and the creation of opportunities for Aboriginal people, the 1993 policy statement emphasized certainty and finality, and the resolution of legal ambiguities related to the common law concept of Aboriginal rights.

The Royal Commission on Aboriginal Peoples

In 1996, the Royal Commission on Aboriginal Peoples proposed a new Royal Proclamation to commit Canada to renewing its relationship with Aboriginal peoples.33 Companion legislation was to set out a treaty process that would significantly expand the Aboriginal land and resource base, and an Aboriginal “order of government” was conceived, subject to the Charter of Rights and Freedoms in the Canadi- an Constitution. Much time and legal analysis was devoted to criti- cizing the concept of “extinguishment” of rights through modern treaties, with “mutual recognition” being offered as an alternative.34 On the other side of the ledger, the Royal Commission said little about the utility of the range of rights and benefits on offer in modern treaties. Established by Prime Minister Mulroney’s Progressive Conservative government, the Royal Commission reported to Prime Minister Chré- tien’s Liberals in a much-changed political environment.35 Imple- menting the Royal Commission’s recommendations would require the expenditure of billions of public dollars. This was unwelcome to a government that had been warned by the International Monetary Fund about Canada’s unsustainably high debt-to-GDP ratio and was struggling to eliminate annual deficits with plans to then chip away at the accumulated national debt. As a result, the report of the Royal Commission likely had less impact on the evolution of the Govern- ment of Canada’s modern treaty policy than the Coolican task force, which cost a fraction of the $60 million spent by the Royal Commis- sion and reported in six months rather than five years. Negotiation and Implementation of Modern Treaties 123

8.3 An informal photograph taken at the signing of the Nunavut Land Claims Agreement in Iqaluit, 25 May 1993. It shows Brian Mulroney, prime minister of Canada; Paul Quassa, president of the Tungavik Federation of Nunavut; Tom Siddon, federal minister of Indian Affairs and Northern Devel- opment; and Elisapee Quassa. (Photo courtesy of Hans Blohm)

aboriginal self-government: the 1995 policy

Following the failure of the constitutional conferences devoted to Aboriginal issues, the demise of the Meech Lake and Charlottetown Accords, and responding to the incremental release of reports by the Royal Commission on Aboriginal Peoples, in 1995 the Government of Canada recognized the “inherent” right of Aboriginal peoples to govern themselves within the Canadian constitutional framework.36 The 1995 Aboriginal Self-Government Policy recognized the inherent right of Aboriginal peoples to govern themselves. It was national in scope and intent, and proposed various mechanisms – historic treaties, legislation, self-government agreements, memoranda of agreements, as well as modern treaties, to bring the inherent right into 124 Terry Fenge practice. This, indeed, has been the case. Reflecting their majority status in territories they occupy, Inuit seek self-determination through public government rather than ethnic-based self-government. The division of the nwt and establishment of the Government of Nunavut pursuant to the Nunavut Act took place in 1999 as a result of three short paragraphs in the nearly three-hundred-page 1993 Nunavut Land Claims Agreement. The 2004 Labrador Inuit agreement, on the other hand, specifies in considerable detail the jurisdiction and mechanisms as well as geographic expression of Inuit self-government within Labrador. Appendices to the Gwich’in and Sahtu land claims agreements include framework agreements that commit to future negotiation of Aboriginal self-government. In the Nisga’a Treaty, meanwhile, the details and mechanisms of self-government are included in the agreement. Eleven stand-alone self-government agreements have been concluded in Yukon, the last in 2005, following conclusion in 1993 of the Yukon Umbrella Final Agreement.

the implementation challenge and the new coalition

Implementation responsibilities fall on the shoulders of signatories operating both singly and together, but as a general principle, implementing modern treaties is a shared endeavour that requires close cooperation and coordination. At the heart of the implementation challenge are the complexity, scope, and detail of the agreements themselves, which provide much room for differences in interpretation of duties and obligations. Parties to these agreements have very different decision-making cultures, yet have to work cooperatively, day by day, to achieve objectives that may or may not be formally defined. Only small pools of qualified and experienced Aboriginal people are available to take the jobs and make the decisions that transform paper promises into on-the-ground realities. Funding shortfalls and actions or inactions of the Government of Canada and, as the case may be, provincial or territorial governments contribute to implementation difficulties. The inherent conservatism and resulting inertia of hierarchically organized government agencies that are themselves often poorly coordinated does not help. It is also important to appreciate that in setting up formal institutions to administer self- government, Aboriginal peoples are often starting from scratch. In short, the implementation challenge is significant. Negotiation and Implementation of Modern Treaties 125

Beginning in 2001, Nunavut Tunngavik Inc. (nti) was deeply involved with the governments of Canada and Nunavut in renegotiating the 1993–2003 Nunavut Agreement Implementation Plan for a second ten-year period. These negotiations broke down in acrimony in 2003 as a result of widely differing views as to the funding required to fulfill obligations. nti believed that experience from the first ten years of implementation should guide determination of funding levels for the second ten years. Reflecting their Cabinet-approved mandate, negotiators for the Government of Canada were, however, wedded to funding assumptions defined in 1993. In 2002, nti shared its implementation negotiation experience with other modern treaty organizations including some with which its predecessor, the Tungavik Federation of Nunavut, had cooperated in the Comprehensive Claims Coalition almost fifteen years earlier. Others had similar experiences. Indigenous peoples engaged in implementing treaties shared the view that many implementation problems were not the result of local or regional circumstances but systemic in nature and stemmed from Ottawa. In 2002, looking ahead to the tenth anniversary of the Nunavut Land Claims Agreement and in partnership with the Gwich’in Tribal Council (gtc), nti proposed a national conference of modern treaty organizations to share implementation experience. The conference – “Redefining Relationships” – was held in Ottawa in November 2003.37 A significant success, with more than 350 participants from all regions of Canada, the conference convinced the leaders of modern treaty organizations of the need to work together. Immediately following the conference, they established the Land Claims Agreements Coalition, elected the Nisga’a Nation and nti to co-chair it, and endorsed a four-point program:

1 Recognition that the Crown in Right of Canada, not the Depart- ment of Indian Affairs and Northern Development, is party to our land claims agreements and self-government agreements; 2 There must be a federal commitment to achieve the broad objectives of the land claims agreements and self-government agreements within the context of the new relationships, as opposed to mere technical compliance with narrowly defined obligations. This must include, but not be limited to, ensuring adequate funding to achieve these objectives and obligations; 3 Implementation must be handled by appropriate level federal officials representing the entire Canadian government; and 126 Terry Fenge

4 There must be an independent implementation audit and review body, separate from the Department of Indian Affairs and North- ern Development. This could be the Office of the Auditor Gener- al or another office reporting directly to Parliament. Annual reports would be prepared by this office in consultation with groups with land claims agreements.38

Early in 2004, the coalition circulated a twenty-one-page discussion paper contextualizing and explaining the four points. The coalition was not established to deal with the implementation issues of its individual members. Rather, it was mandated to persuade the federal government to alter its approach to implementation of all modern treaties and to educate the public at large about the national importance of these agreements. The coalition’s key demand was for the Government of Canada to adopt a Modern Treaty Implementation Policy that would alter the context within which individual members of the coalition operated. Additional national conferences were held in 2006, 2009, and 2013, and more organizations joined as further comprehensive land claims and self-government agreements were ratified. All Aboriginal peoples with ratified modern treaties are currently members of the coalition.

the auditor general of canada weighs in

In the same month that the coalition held its inaugural conference, the Auditor General of Canada released an audit of the Department of Indian Affairs and Northern Development, including analysis of the implementation of the Gwich’in and Nunavut agreements.39 The audit found that diand was focused on fulfilling the letter rather than the spirit of land claims’ implementation plans, and concluded that the department’s management framework was inappropriately characterizing success in terms of meetings, events, and activities instead of results achieved. In a paragraph that should be read by all engaged in negotiation as well as implementation of modern treaties, the audit noted: “When the objectives are specific, all parties to the claims agreements can agree what constitutes results. However, when the objectives are open-ended and future-oriented, as some are in the claims we looked at, matching results with the specific legal responsibilities becomes difficult. When that happens, the mechanisms for managing the agreements – the implementation committees, the arbi- Negotiation and Implementation of Modern Treaties 127 tration panels, and the accountability reporting – are not effective in bringing important issues to closure.”40 This finding resonated with all members of the coalition but particularly with nti, for the Gov- ernment of Canada had over the years refused seventeen requests from nti to send implementation disputes to binding arbitration.41 Three years later, nti would go to court on this and other implementation grievances. negotiations between the land claims agreements coalition and the government of canada

In December 2004, Paul Martin, long sympathetic to Aboriginal peoples, became prime minister and sponsored a series of round tables involving the national Aboriginal organizations that culminated in the November 2005 Kelowna Accord to fund improvements in health, education, sanitation, living conditions, and employment.42 The accord did not mention modern treaties, perhaps because the coalition was not involved in the round tables that preceded it. Be that as it may, in this relatively sympathetic political environment, a small team of technical and legal representatives of coalition members met regularly in 2004 and more frequently in 2005, with civil servants from various federal agencies, chaired by the Aboriginal Secretariat of the Privy Council Office (pco), which served the Cabinet Committee on Aboriginal Peoples.43 By November 2005, a protocol – Collabora- tive Development of a New Implementation Policy – was close to being finalized.44 This document largely reflected the coalition’s interpretation of implementation problems, particularly the view that many agencies of the Government of Canada were largely and, in some cases, entirely ignorant of their modern treaty obligations, and that only a formal policy commitment by the federal Cabinet could get them to act in a coordinated fashion. For their part, government participants in these meetings were adamant that an implementation policy not reopen or “sweeten” modern treaties, not inflate expectations, and not open financial taps.

back to the beginning?

The federal election of January 2006 resulting in the assumption to power of Stephen Harper’s Conservatives had immediate implica- 128 Terry Fenge tions for Aboriginal peoples, most notably with the government’s dis- avowal of the Kelowna Accord. Less widely known, however, but likely of greater long-term importance, was the disbanding of the Cabinet Committee on Aboriginal Peoples along with the Secretariat in the pco that served it. Committed to dialogue and creative public policy, but now with no negotiating partner, the coalition sought alternative ways to have its views heard, considered, and responded to. As of January 2014, this process continues, but has been hindered by lack of political continuity, as there have been five ministers of Indian Affairs and Northern Development since January 2006. More substantively, the coalition’s emphasis on the collective rights of Aboriginal peoples may be perceived by Prime Minister Harper’s Conservatives as being at odds with their ideological commitment to the rights of individuals. The Government of Canada’s 2009 Northern Strategy, for example, ignores modern treaties – geographical and legal expressions of the collective rights of Aboriginal peoples of primary importance in the territorial North – to promote instead a “clear vision for the North in which self-reliant individuals live in healthy, vital communities, manage their own affairs and shape their own destinies.”45 Rather than engage the coalition, the Department of Indian Affairs and Northern Development was directed to consult with Aboriginal peoples on a regional basis regarding difficulties implementing modern treaties. First Nations and Inuit organizations re-articulated the position of the coalition in these consultations, reinforcing the con- viction that implementation problems should be addressed in a comprehensive, policy-driven manner. In December 2006, the coalition adopted a ten-point Declaration of Dedication and Commitment that elaborated on the four principles in the 2003 discussion paper, stressing that modern treaty rights must be understood as human rights and that implementation of modern treaties are a test of the “honour of the Crown.”46 Also in December 2006, nti launched a major lawsuit in the Nunavut Court of Justice alleging sixteen breaches of contract by the Government of Canada in failing to implement the Nunavut Land Claims Agreement; nti sought damages of $1 billion.47 Drawing in particular on the extensive international experience of the Grand Council of the Crees (Eeyou Istchee), in 2008, the coalition submitted an extensive brief to the United Nations Human Rights Council requesting it to conclude Negotiation and Implementation of Modern Treaties 129 and recommend “The fulfillment of the broad socio-economic objectives of modern land claims agreements entered into with Indigenous peoples in Canada, and associated self-government agreements, must be undertaken not only because it is the obligation of the Govern- ment of Canada, but because it is in Canada’s national and international interest to do so.”48

the auditor general of canada weighs in – again

In 2007, the auditor general reviewed the implementation of the 1983 Inuvialuit Final Agreement and noted that diand had still to develop an implementation strategy. The audit revealed this particularly to be the case in federal contracting provisions. For years, federal agencies did not even inform the Inuvialuit of federal contracts in the Settle- ment Region. Perhaps on a note of exasperation, the audit reported, “Departments still do not monitor their contracting practices with the Region and cannot provide assurance that current contracting obligations under the Agreement are being met.”

the senate committee on aboriginal peoples

In 2007, as a result of the activities of the coalition, including commentaries in Canadian newspapers,49 the Senate Standing Committee on Aboriginal Peoples embarked on a study of implementation of modern treaties, which included public hearings in Ottawa. Coalition members presented well-articulated and well-received briefs. The hearings generated considerable information, much of which supported the coalition’s general position. In a forthright and honest intervention, Michael Werneck, deputy minister of Indian Affairs and Northern Development, informed the committee that his department could not “compel” recalcitrant departments to live up to modern treaty duties and obligations, notwithstanding their constitutional nature.50 The coalition felt that presentations by the Treasury Board Secretariat and diand revealed an arbitrary and poorly coordinated approach to costing implementation of modern treaties. The spring 2008 report of the Senate committee, Honouring the Spir- it of Modern Treaties: Closing the Loopholes,51 strongly supported the coalition’s views and recommendations: 130 Terry Fenge

The committee is troubled by the narrow approach to treaty implementation by the federal government. Federal practices and policy in this regard have resulted in the diminishment of the benefits and rights promised to Aboriginal peoples under these agreements … We believe much of the failure rests with the institutional role and mandate of the Department of Indian Affairs and Northern Development … Failure to properly implement provisions of modern treaties puts Canada at risk for generating new legions of broken promises. However, we are convinced that these challenges can be overcome. The honour of the Crown rests upon it.

From this unyielding interpretation of the nature of the problem, the committee made several sweeping recommendations to the Govern- ment of Canada:

• That it abandon its practice of systematically refusing to consent to arbitration;52 • That, in collaboration with the Land Claims Agreements Coali- tion, it take immediate steps to develop a new national land claims implementation policy based on principles endorsed by members of the Land Claims Agreements Coalition;53 • That, in collaboration with the Land Claims Agreements Coali- tion, it take immediate steps to establish an independent body, through legislation, such as a Modern Treaty Commission to over- see the implementation of comprehensive land claims agreements, including financial matters;54 • That the Clerk of the Privy Council take immediate steps to establish a senior level working group to revisit the authorities, roles, responsibilities, and capacities respecting the coordination of federal obligations under comprehensive land claims agreements, with a view to establishing clear guidelines, and that the Clerk of the Privy Council Office table these guidelines with the Senate Committee by March 31, 2009;55 and • That the periodic negotiation of implementation funding for Canada’s obligations under modern land claims agreements be led by a Chief Negotiator, appointed jointly by the Minister of Indian Affairs and Northern Development and the Land Claims Agree- ments Coalition, reporting directly to the Minister of Indian Affairs and Northern Development.56 Negotiation and Implementation of Modern Treaties 131

The Government of Canada responded to the committee’s report a year later in a two-and-a-half page letter from the minister of Indian Affairs and Northern Development which promised to develop “guidelines” for implementing agreements, including the use of arbitration of issues with financial implications.

back to diand

In February 2009, diand released an evaluation it had commissioned regarding the impacts of the Northeastern Quebec Agreement, the Inuvialuit Final Agreement, the Gwich’in Comprehensive Land Claim Agreement, and the Sahtu Dene and Métis Comprehensive Land Claim Agreement.57 While generally positive about implementation of these agreements and characterizing the concerns of the coalition as perceptual rather than substantive or proven, the evaluation nevertheless recommended that diand “Consider leading the establishment of a policy for the implementation of comprehensive land claims which would clarify roles and responsibilities and the federal approach to implementing Comprehensive Land Claims Agreements.”58

the model policy

In 2008, realizing that diand and other federal agencies were having difficulty conceptualizing the nature of a Modern Treaty Implementa- tion Policy, the coalition committed to drafting a model policy drawing on the 2003 discussion paper and the 2006 ten-point declaration and to inviting the Government of Canada to adopt it.59 Released in March 2009, the model policy’s stated purpose was “to ensure that modern treaties are fully implemented in accordance with their provisions, their overall objectives, and their spirit and intent. The Policy is not intended to re-write modern treaties or to create new and uncon- templated responsibilities, legally binding or otherwise.”60 Contextualizing the modern treaty relationship between Aborigi- nal peoples and the Government of Canada as intergovernmental and recognizing the need to “achieve the objectives of modern treaties in a lasting, generous and flexible manner,” the model policy stated: “Such an evolving and beneficial approach is consistent with long- standing Canadian governmental practice in all other inter-governmental contexts. The Aboriginal land claims agreements context can- 132 Terry Fenge not be permitted to languish as an unintended exception.”61 The model policy dealt with self-government, implementation panels and committees, financing, dispute resolution, using modern treaties to achieve public policy objectives, and periodic reviews and evalua- tions. Reaching back to the Coolican report and even earlier proposals, it stressed the need for independent oversight by a Modern Treaty Implementation Commission. A week before its release, the model policy was provided to Chuck Strahl, minister of Indian Affairs and Northern Development (from August 2007 to August 2010), in the only face-to-face meeting between the coalition and the minister until Bernard Valcourt assumed the portfolio in February 2013. Minister Strahl promised a “considered response.”

diand responds

The coalition never did receive a response, considered or otherwise, to the model policy. Instead, the newly named Department of Aboriginal Affairs and Northern Development Canada (aandc) drafted a Frame- work for the Management of Modern Treaties.62 By and large, coalition members agreed with the way in which the management framework characterized the problem: “Experience has shown that, over time, the administration of modern treaties is more complex and resource- intensive than was originally anticipated, and that agreements are difficult to implement through regular government business.”63 An attempt to better coordinate the approach of federal agencies to implement modern treaties, the management framework promised to expand the mandate of the Federal Steering Committee on Self-Gov- ernment and Comprehensive Claims, enabling it to “make decisions or recommendations with respect to implementation mandates and fiscal and policy issues.”64 The mandate of the existing Federal Caucus was to be revamped, enabling it to develop “broad strategic policy, operational guidance, and support to regional operations,” and Regional Caucuses were to “provide structured interdepartmental forums to ensure collab- orative, consistent and effective fulfillment of implementation activities in the regions.”65 While welcoming these reforms, the coalition felt the department was launching an administrative response to a political and policy problem, and that this approach would not change matters substantively. Negotiation and Implementation of Modern Treaties 133

arbitration

As mentioned earlier, one of the grievances identified in nti’s 2006 lawsuit was the Government of Canada’s systematic refusal to accede to binding arbitration of disputes, particularly those that raise financial issues (which most do). Other members of the coalition reported similar experience. The auditor general of Canada and the Senate Standing Committee on Aboriginal Peoples, as well as the coalition itself, had stressed the need for the government to allow binding arbitration when other means of resolving disputes had failed. In 2012, almost four years after it informed the Senate Committee on Aborigi- nal Peoples of its intent to develop guidelines, the government released a detailed position on this issue, refusing as a matter of policy to coun- tenance binding arbitration on issues of funding levels and public law:

1 Funding levels: Canada will not consent to arbitrate the determination of funding levels, as agreements state that these are to be determined through negotiations … as it would result in an unac- ceptable loss of policy discretion and would be inconsistent with how Canada approaches inter-governmental transfer payments generally. 2 Public Law: Canada will not consent to the arbitration of matters of law or mixed fact and law that have general application to Canadian society, such as constitutional law issues, general principles of the law of contract, tort, tax law issues and pure questions of law.66

The coalition was particularly unconvinced by “loss of policy discretion” as the rationale supporting the government’s position. The coalition noted that the only formal policy addressing implementation of modern treaties announced since the coalition was formed in 2003 was at odds with the position and advocacy of the coalition, and also with the recommendations of the auditor general of Canada and the Senate Standing Committee on Aboriginal Peoples.

back to the past?

Appearing in November 2011 before the House of Commons Stand- ing Committee on Aboriginal Affairs and Northern Development, 134 Terry Fenge

John Duncan, minister of Indian Affairs and Northern Development (from August 2010 to February 2013) made the following statement about implementation of modern treaties: “We’ve made enough serious progress over the last three years really that most of the issues have gone away. Our implementation has been very well done … we’ve really addressed the whole implementation issue very well.”67 The coalition wondered just what the minister knew or thought he knew that led him to make this statement. It is instructive to compare the minister’s statement with that of Justice Earl Johnson of the Nunavut Court of Justice six months later when issuing a decision on an application by nti for summary judgment on the environmental monitoring component of its 2006 lawsuit. In granting the motion and awarding nti nearly $15 million in damages, Justice Johnson said: “The Crown was indifferent to its obligations over many years … I am satisfied that Canada’s failure to implement an important article of the land claims for over 15 years undermines the confidence of aboriginal people, and the Inuit in particular, in the important value behind Canadian land claims agreements.”68 This decision is in reference to only one component of nti’s statement of claim, but the suggestion that the Crown was “indifferent to its obligations” raises the question whether “indifference” on the part of the Crown lies behind additional implementation failures alleged in nti’s statement of claim and alleged implementation failures by the Government of Canada reported by First Nations and Inuit in reference to other modern treaties.69

into the future?

Winter 2012 to 2013 was marked by nationwide protests by Aborigi- nal peoples associated with the Idle No More movement. Fulfilling historic treaties was a key demand of protesters. On 22 February 2013, Bernard Valcourt was appointed minister of Aboriginal Affairs and Northern Development. Within a few days of assuming the portfolio, the minister asked to meet the leaders of the Land Claims Agreements Coalition and, taking advantage of their presence in Ottawa at the coalition’s fourth national conference, did so on 1 March. He then wrote a conciliatory letter offering to work with the coalition:

The model policy is a valuable tool in articulating the Coalition’s position on key issues, and in providing a catalyst for addressing Negotiation and Implementation of Modern Treaties 135

these issues. In fact, the Government of Canada shares many of the Coalition’s interests, as laid out in the model policy, and in the earlier Four-Ten Declaration … [including] the need for a “culture shift” with the Government of Canada – to ensure that departments and agencies are fulfilling both their specific treaty obligations, and their entire mandates in a manner that is respectful of modern treaties.70

back to the drawing board?

During the time of the Idle No More protests, the Government of Canada’s objective of constructing pipelines to the west coast from which to export oil from Alberta and Saskatchewan to Asian markets was attracting considerable opposition, including from many Aborig- inal peoples in northern British Columbia whose traditional territories would need to be crossed. In March 2013, the prime minister appointed Vancouver lawyer Douglas Eyford to engage Aboriginal peoples and to advise a way forward.71 Relationship building and treaty making were components of his dialogue. Simultaneously, representatives of the Government of Canada and First Nations represented by the Assembly of First Nations constituted themselves as a Senior Oversight Committee on Comprehensive Claims and defined general principles to guide future treaty making, and, in December 2013, this committee recommended to the prime minister reform of the Comprehensive Land Claims Policy. In September 2014, the Government of Canada committed to review the Comprehensive Land Claims Policy and released a twenty- two-page “interim policy” subtitled “Towards a Framework for Addressing Section 35 Aboriginal Rights.”72 Douglas Eyford was commissioned once more to engage and canvas Aboriginal peoples. The “interim policy” bears a significant resemblance to policy statements that have preceded it in terms of rights and benefits, but stresses “reconciliation,” “recognition,” “honour of the Crown,” and “justification of infringement on Section 35 rights,” principles adopted by the Supreme Court of Canada in a series of judgments over the last thirty years. Greeted by some as a “legal earthquake,” the June 2014 Tsil- hqot’in judgment by the Supreme Court of Canada appears to have greatly strengthened the hand of Aboriginal peoples seeking to have the courts recognize their Aboriginal title, that is, outside historic and modern treaty areas.73 It appears that this judgment was particularly 136 Terry Fenge important in persuading the Government of Canada to once again reform and renew its approach to Aboriginal land claims. What remains unclear, however, is what tangible outcomes will arise from this most recent attempt to reform Canada’s approach to modern treaty making. Above and beyond the long-standing requirement for implementation plans, the “interim policy” does not address implementation of agreements.

postscript

Implementing modern treaties is proving far more challenging and expensive than was envisaged by those who negotiated them. While all involved in implementation face significant challenges, and the future is likely to witness increased litigation in the absence of effective dispute resolution, goodwill remains. There is no suggestion from members of the coalition that senior civil servants lie awake at night thinking of ways and means to stymie implementation. Mendacity is not a factor. On the other hand, there is little sense that the constitutional status of modern treaties or the moral bargains that they embody motivates the Government of Canada to new heights of responsible action. It may be that modern treaties are so complex that implementation will always fall short of the ideal, but in the context of the preceding narrative, what practically can be done in the short to medi- um term to improve the chances that they will be fully implemented to achieve their objectives? The federal government needs to undertake four key actions:

1 Recognize that ongoing political support is required to signal the importance of implementation to all agencies of the Government of Canada. To this end, reconstitute the Cabinet Committee on Aboriginal Peoples and the secretariat in the Privy Council Office with a mandate to focus the intellectual and financial resources of the Government of Canada on implementation; 2 Recognize that a formal policy to guide implementation is needed to signal the commitment to a “whole of government” approach to implementation. This policy should embrace the binding arbitration of funding levels when other means fail to resolve financial disputes; Negotiation and Implementation of Modern Treaties 137

3 Recognize that decision-making within the Government of Cana- da needs to be more efficient and so establish an external institu- tion perhaps modeled on the Office of the Auditor General of Canada, to hold agencies accountable for their action and/or inac- tion on implementation; and 4 Mount a national research program in cooperation with universities, the Social Sciences and Humanities Research Council of Canada, and selected professional associations to improve implementation of modern treaties to achieve environmental, economic, health, and other public policy objectives.

In a recent essay dealing with Aboriginal land claims and self- government agreements, Fenge and Penikett challenge governmental and non-governmental organizations in Canada to bring these agreements into the political “mainstream.”74 They pointed out that, in 2007, Adrienne Clarkson, then governor general, said that “we are all treaty people.” She is correct. All Canadians, whether born here or not, have a stake in seeing modern treaties – the law of the land – fully implemented. 138 David Johnston

The 1998 Nisga’a Treaty

jim aldridge1

The year 2013 was the 250th anniversary of the Royal Proclamation of 1763. But 2013 was also the anniversary of other significant events whose foundations lie in the Royal Proclamation. The first of these was the adoption of a petition by the Nisga’a Nation of northwestern British Columbia in 1913 to be submitted to Imperial authorities. In its motion adopting the petition, the Nisga’a Nation said, in part:

We are not opposed to the coming of the white people into our territory, provided this be carried out justly and in accordance with the British principles embodied in the Royal Proclamation. If therefore as we expect the Aboriginal rights which we claim should be established by the decision of His Majesty’s Privy Council, we would be prepared to take a moderate and reasonable position. In that event while claiming the right to decide for ourselves the terms upon which we would deal with our territory, we would be willing that all matters outstanding between the Province and ourselves, should be finally adjudicated by some equitable method to be agreed upon, which should include representation of the Indian Tribes upon any commission which might then be appointed.

The above statement was unanimously adopted at a meeting of the Nisga’a Nation held at Gingolx (Kincolith) on the 22nd day of Janu- ary 1913. So it was exactly one hundred years ago that the Nisga’a Nation, in this document, referred to and invoked the fundamental principles of The 1998 Nisga’a Treaty 139 the Royal Proclamation in its continuing efforts to have the land question addressed. The 1913 petition was of course not the beginning of the Nisga’a land question. From the Nisga’a point of view, that question started with the arrival of the k’amksiiwaa, the white people, to their shores. And it had culminated in 1887 when a group of Nis- ga’a chiefs, Simgigat, travelled from their Nass River home to Victoria with some of their Tsimshian neighbours – Simgigat of the Tsimshian from the coast and Skeena areas – to seek an audience with Premier William Smithe. Famously, when the chiefs arrived in Victoria, they were turned away from the Legislative Assembly. A meeting did take place in the home of the premier. The delegation included Nisga’as Arthur Gur- ney, John Wesley, and Charles Barton, as well as Tsimshians Richard Wilson and John Ryan. Premier Smithe, Attorney General Alexander Davie, Provincial Secretary John Robson, and Reserve Commissioner Peter O’Reilly were present, as was federal superintendent of Indian Affairs Israel Powell. Remarkably a verbatim transcript of the meeting was produced.2 One of the Nisga’a members of the delegation, Charles Barton (whose name was misspelled “Burton” in the transcript), spoke Eng- lish and provided the translation. He and the others explained that what they wanted was to enter into negotiations with the Crown to try to achieve a treaty setting out the terms under which their land would be shared:

burton (speaking for John Wesley, of Naas): My fathers have sent me from Naas to speak before you … These are what we want, and what we came for. We want you to cut out a bigger reserve for us, and what we want after that is a treaty. hon. mr. smithe: What do you mean by a treaty? wesley: I have mentioned after a certain amount of land is cut out for the Indians, outside of that we want such a law as the law of England and the Dominion Government which made a treaty with the Indians. hon. mr. smithe: Where did you hear that? wesley: It is in the law books. hon. mr. smithe: Who told you so? wesley: There are a good many Indians that can read and write, and they are the ones who say this themselves. hon. mr. smithe: And they told you this, did they? 140 Jim Aldridge

wesley: Yes. hon. mr. smithe: Well, I should like them to produce this book that they read this in. I have never seen that book. wesley: We could not tell you the book just now; but we can probably find it for you if you really want to see it. hon. mr. smithe: There is no such law either English or Domin- ion that I know of; and the Indians, or their friends, have been misled on that point.3

It is hard to know whether the premier’s denial of any knowledge of treaty making revealed woeful ignorance or deliberate disingenu- ousness. In either event the transcript reveals the disrespect that he and the other provincial and federal officials had for the delegation, not only by their patronizing tone, but also by the way they spoke to one other as though the Nisga’a and Tsimshian chiefs were not in the room:

dr. powell: I think the grievance they have is, that they want a treaty. hon. mr. davie: That is what they want. hon. mr. smithe: They are simply misguided. dr. powell: There is no doubt of it.4

The entire exchange displays a profound lack of understanding. The provincial and federal officials seemed convinced that adjusting the reserves that they had unilaterally established would address the Sim- gigat’s concerns over the land question. The delegation left with their primary issues ignored. Over the course of the next several years, the Nisga’a leaders established what was known as the Nisga’a Land Committee. A group that represented both the hereditary and village structures, the committee comprised one representative of each of the four Nisga’a clans from each of the four villages. This body of sixteen people met, debated, raised money, and obtained legal advice. The committee’s principal lawyer was Arthur O’Meara, who played a vital role in addressing the land question. He advised the Nisga’a people, among other things, that the basis of treaty making was the Royal Proclamation of 1763. By 1913, when their attempts to address the land question had been to no avail, the Land Committee finally resolved to have a petition filed. Pursuant to the statement quoted The 1998 Nisga’a Treaty 141 above, instructions were sent to London and the petition was prepared and submitted by the Nisga’a Nation through their agents, Messrs. Fox and Preece of 15, Dean’s Yard, Westminster, Solicitors. What sort of instrument was the petition intended to be? It pur- ported to be a petition to the Privy Council, but the term “Privy Council” can refer to either of two bodies: the Judicial Committee of the Privy Council, which was essentially the Imperial court of last resort for resolving questions arising in the Commonwealth and colonies, or the executive, the British Cabinet. Mr. Fox and Mr. Preece’s intentions were unclear because, then as now, one cannot commence a lawsuit at the court of final resort. One must commence a proceeding and then work up the judicial ladder. On the other hand, the wording of the petition clearly seemed to seek a judicial ruling – not something a person would request from Cabinet. In any event, when the petition arrived at the colonial offices in London – this piece of paper filed by local solicitors representing an Indigenous nation in a far-flung part of the Commonwealth – British officials seem to have asked themselves, “Well, what do we do with this? Let’s see what Canada proposes.” So they sent the petition back to Canada for reaction from the federal government, whose view of course was that it would be best ignored. But that was not possible. After reciting the Royal Proclamation of 1763, the petition asked that Her Majesty in Council adjudge and determine the nature and extent of the rights of the said Nisga’a Nation in respect of the said territory. It then asked for a determination and adjudication of whether the provincial land act and any similar land act, to the extent that they purport to deal with lands as though the “Indian Tribes” had no rights or title, were ultra vires the provincial legislature. After some going back and forth, an offer was made – an offer generated by Duncan Campbell Scott, deputy superintendent of Indian Affairs. Acting on Scott’s advice, the governor in council finally agreed to allow the land question to be heard before the Exchequer Court, the predecessor of the Federal Court. Moreover, there would be a right of appeal from the Exchequer Court to the Supreme Court of Canada and ultimately to the Judicial Committee of the Privy Coun- cil.5 But there would be three main conditions. First, the Indians would have to agree in advance that if they were successful, they would agree to immediately surrender their Aboriginal title. The consideration for the extinguishment would be the reserves as recommended by the most recent federal provincial commission and, going 142 Jim Aldridge forward, on the basis of payments similar to those under the numbered treaties on the Prairies, essentially five dollars per individual per year. In other words, if they won – they lost. Second, the province would be obliged to do no more than grant the land for the reserves. Third, Canada would retain legal counsel on behalf of the Indians. These conditions were obviously unconscionable and were summari- ly rejected by the Nisga’a as well as by other tribal organizations in British Columbia.6 Between 1913 and 1927, the agitation around the British Columbia land question grew. Other petitions were drawn up by nations in the province. Finally, the federal government had to act, so it responded in a familiar Canadian fashion: it held a hearing by a parliamentary committee. The committee heard from numerous witnesses, including Arthur O’Meara. First Nations chiefs from bc travelled to Ottawa to make their presentations, speaking knowledgeably about the Royal Proclamation, about their Aboriginal title, and about the settlement of the land question. The committee heard the evidence, and then made a recommendation that led to Parliament’s amending the Indian Act in 1927, making it illegal to raise money to pursue land claims. This amendment made it virtually impossible for Aboriginal nations to even hire lawyers to tell them what their rights were. The land question went underground, not to be reborn in terms of the Nisga’a narrative until 1955, when the Nisga’a Tribal Council was formed under the presidency of Frank Calder. The land question, which had never really gone away, was revived and pursued without success until 1968 when the Nisga’a Nation commenced a lawsuit in the Supreme Court of British Columbia, asking for a declaration that the Aboriginal title of the Nisga’a Nation had never been lawfully extinguished. That action resulted in the famous decision in Calder v. A.G. British Columbia, handed down by the Supreme Court of Cana- da in 1973.7 Thus, 2013 is also the fortieth anniversary of the Calder decision. Much of that decision is taken up by the debate between the two sides of the Court as to whether Aboriginal title in British Columbia had been extinguished prior to Confederation. Six of the seven judges dis- agreed with the British Columbia Court of Appeal, which had ruled that Aboriginal title had never existed because there had been no grant or act of recognition of title by the Crown. The three Supreme Court of Canada judges who ruled against the continued existence of The 1998 Nisga’a Treaty 143

Aboriginal title also ruled that the Royal Proclamation of 1763 did not extend to British Columbia; the three who ruled in favour of the Nisga’a Nation said that it did. The debate over the territorial application of the Royal Proclamation continued all the way into the 1997 decision of the British Columbia Court of Appeal in Delgamuukw v. British Columbia.8 It does seem to have become clear subsequently that whether or not the Royal Proclamation in its own terms applies throughout Canada, the principles of the Royal Proclamation most certainly do.9 The technical legal result of the Calder decision includes a six to zero decision that Aboriginal title exists as a matter of common law, regardless of any grant or act of recognition; a three to three tied decision as to whether it had been extinguished in bc by pre-colonial legislation; and a four to three decision against the Nisga’a Nation on procedural grounds. The decision led the prime minister of the day, Pierre Elliot Tru- deau, to say that “perhaps” Aboriginal people have “more legal rights than we thought you had.”10 It formed an important part of the basis on which the James Bay Cree were able to obtain an interlocutory injunction against the hydroelectric development project, which led ultimately to the James Bay and Northern Quebec Agreement. The decision led to the establishment of the federal “comprehensive claims policy” in 1973 (which was revised in 1976, 1980, and 1986). Negotia- tions proceeded in the Yukon, the Northwest Territories, and Quebec, as well as with the Nisga’a Nation in British Columbia. The question that would arise during those negotiations was whether Aboriginal peoples would actually come to see the principles of the Royal Procla- mation being manifested in modern terms. Under the comprehensive land claims policy, the Crown would enter into negotiations with people whose Aboriginal title had not been previously extinguished by treaty, and it would enter into these negotiations, it said, in order to obtain “certainty.” Certainty could be obtained by returning to the courts, but instead the Crown sought to obtain certainty through negotiations. The certainty that it sought was to resolve the question raised by the tied decision in Calder. The goal, it said, was to replace undefined Aboriginal rights, which may or may not exist, with defined rights in an agreement to be given legislative approval. But this was the first time since Europeans had arrived and started entering into treaty making with Aboriginal people in which the 144 Jim Aldridge objective was said to be “to eliminate uncertainty.” There had never been any uncertainty. Aboriginal people owned the land; the Crown had to make a deal with them before settling a territory. Now, however, the exercise had been transmogrified into a process wherein the Crown was not seeking consent to settle land, it was instead seeking to resolve uncertainty. It is a peculiar notion to propose sitting at the bargaining table at which one side says “We will ‘give’ you land and fishing and hunting rights, and other things (that you arguably already have) as well as some money – and in return you’re going to give us certainty.” How much is certainty worth, exactly? What is the market value for the con- version of so-called vague and uncertain rights, which may or may not exist, into concrete, defined rights, which come into effect through statute? This determination of value obviously proved to be a very difficult challenge, with the Aboriginal parties negotiating from the deeply held belief that they have inherent rights and the government parties taking the contrary position. The federal government approached the Government of British Columbia and invited it to join negotiations with the Nisga’a Nation. The province declined, on the basis of the legally unsound argument that the two opposing views at the Supreme Court of Canada in Calder as to whether pre-existing Aboriginal title had been extinguished somehow cancelled each other out, leaving the Court of Appeal decision that Aboriginal title had never existed as the law of the province. Successive New Democratic Party and Social Credit governments adhered to this peculiar view of the law – one that seems more taken from the game of curling than from any law book. The British Columbia Court of Appeal certainly did not subscribe to it.11 From 1973 to 1990, the bc government persisted in that position. Treaty negotiations were underway elsewhere in Canada, but, at the Nisga’a table, the federal government said that it would negotiate only matters within federal jurisdiction, which resulted in discussions being for the most part limited to fish and fishing rights. The nature of the process changed following the patriation of the Canadian Constitution in 1982. In the discussions leading up to that event, Prime Minister Trudeau, having failed to obtain provincial agreement through a series of constitutional conferences, decided to proceed without obtaining the consent of the provinces. He presented to Parliament a constitutional proposal, including an amending formula and a Charter of Rights and Freedoms. The proposed Char- The 1998 Nisga’a Treaty 145 ter of Rights and Freedoms seemed to identify and guarantee rights and freedoms for nearly everyone – except Aboriginal peoples. Instead, the proposal did no more than include a statement to the effect that guaranteeing the rights of everyone else will not take away any unique rights that Aboriginal peoples might have. That statement became section 25 of the Charter as finally adopted, and it is, by itself, a somewhat tepid recognition of Aboriginal and treaty rights. Abo- riginal peoples, including the Nisga’a Nation, made submissions to the Special Joint Committee on the Constitution in 1980–81, arguing that this was simply unfair, that there had to be constitutional protection of Aboriginal and treaty rights in the constitutional package. In 1981, Prime Minister Trudeau agreed. Why? At the time, the Liberal Party’s western-most member of Parliament was Lloyd Axworthy, from Winnipeg, but the New Democratic Party had a significant number of seats in the west. In the face of opposition to the package from the Progressive Conservatives, and in order to have something resembling a national consensus, Trudeau needed the ndp, and ndp leader Edward Broadbent, to his credit, and in consultation with many Aboriginal nations and organizations including the Nisga’a Nation, stipulated that the inclusion of Aboriginal and treaty rights in the constitutional package was a condition for ndp support for it. This led Jean Chrétien, minister of justice at the time, to announce the inclusion of the clause that was to become section 35 of the Constitution Act, 1982, recognizing and affirming Aboriginal and treaty rights. Subsequently, the Supreme Court of Canada made its decision as to whether the federal government could unilaterally request patriation.12 The Supreme Court ruled that, as a matter of law, yes, but as a matter of constitutional convention, no. By convention there should be a substantial degree of provincial consent. Prime Minister Trudeau called yet another First Ministers’ conference in September 1981. It resulted in the changes that led Quebec to refuse to agree to the resulting package. While those issues received considerable media attention, the removal of the recognition and affirmation of Aboriginal and treaty rights received little notice from the press. That clause was removed without any discussion, announcement, or justification. Many observers assumed that the clause was opposed most vocifer- ously by the premier of Alberta and the premier of bc, as they seemed to be the ones most concerned about it. In any event, as the public became aware of the clause’s removal, there was a political outcry that 146 Jim Aldridge ultimately led to the decision to reinsert the provision, albeit in an altered form. It had originally read, “The aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” The new version would read, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” A debate then occurred about the meaning of the word “existing” in this context. Did it mean only those rights that existed as of 1982? If so, then the rights that would be set out in land claims agreements that had not yet been concluded would not get the same constitutional status as the rights set out in the historic treaties. When asked if that was the intent, the federal government at least indicated that no, what it would mean was existing from time to time; that is, the intent of the wording was that it would not resurrect rights that had previously been extinguished. The difficulty seemingly posed by the insertion of the word “existing” is relevant in the context of the Calder case. Recall that the British Columbia government was still alleging that the Court of Appeal decision was good law, and that in order for Aboriginal rights to exist, they had to be granted or recognized. The original wording clearly amounted to recognition, if such was necessary, but the new wording seemed to say: “What we recognize are only the rights that exist. But in order to exist, they have to be recognized.” It was like an Escher painting or a snake swallowing its tail – quite an unsatisfactory way to make any law, much less the highest law in the land.13 At the first First Ministers’ conference held after the adoption of the Constitution Act, 1982, it was agreed to insert section 35(3), which says, “For greater certainty, ‘treaty rights’ includes rights that exist by way of land claims agreements or may be so acquired.” Thus it became clear for the first time that what was being negotiated at comprehensive land claims tables were not simply agreements that could be changed at the whim of government, but rather a constitutional relationship between the Aboriginal peoples and the Crown. An interesting dynamic soon developed at negotiations, at which federal negotiators would say of various proposals that they might have been able to agree to that before, but not now that it will be constitutionally protected. In effect, they seemed to be reluctant to make promises that they were not free to break. Negotiations with the Nisga’a Nation proceeded in fits and starts. In 1986, the federal government issued a new policy governing the nego- The 1998 Nisga’a Treaty 147 tiation of comprehensive land claims. There had been the old policy under the Liberals, established in 1973 and put into a more modern form in 1980, named without conscious irony In All Fairness. Follow- ing their election in 1984, the Progressive Conservatives wanted to have their own policy, so in 1986 they issued what became known as the Blue Book Policy. While this somewhat altered policy included a number of modest improvements, it posed a new challenge. The policy stated that the government of Canada would negotiate agreements in respect of self-government, but would not, “as a matter of policy” include self-government in comprehensive land claims agreements in the absence of a further constitutional amendment. This announcement, that as a matter of policy the government would frustrate the constitutional effect of section 35(3) in respect of self-government, was in many people’s view the result of the political context. During the 1980s, a series of First Ministers’ conferences focused on whether to make the right of self-government express in a constitutional amendment. The federal government had offered an approach that amounted to offering to include in the Constitution a process under which it and the provinces would negotiate self- government with Aboriginal peoples, and it would then negotiate whether any resulting agreement would have constitutional protection. In the meantime, however, Aboriginal groups would not have any right to self-government. Aboriginal peoples, including the Nisga’a Nation, refused to agree to this proposed approach. For them, the right to self-government is inherent and was already implicitly recognized and affirmed in section 35. It was anathema to them to suggest that they give up what they already had in return for talks that might result in getting something else. Moreover, self-government had always been a topic for negotiation at the comprehensive claims tables. The government perceived that including self-government in land claims agreements might mean groups with comprehensive land claims would end up with constitutionally protected self-government arrangements that others would be unable to get. The government said, in effect, that that was not fair, and that fairness required treating everyone equally badly. Further discussions took place around the issue, and a number of land claims agreements were finalized that expressly excluded related self-government agreements from constitutional protection. This approach did not change until a new Liberal government changed 148 Jim Aldridge

9.1 A celebration, on 4 August 1998, of the initialing of the Nisga’a Treaty, the ﬁrst modern treaty between a British Columbia First Nation, Canada, and British Columbia. From left: Jane Stewart, federal minister of Indian Affairs and Northern Development; Joseph Gosnell, Nisga’a Tribal Council president and chief negotiator in the treaty negotiations, later president of the Nisga’a Nation; and Glen Clark, premier of British Columbia. (Photo by Gary Fiegehen, courtesy of the Nisga’a Nation) the policy in 1995, allowing self-government to be properly included in modern treaties and thereby be constitutionally protected. The Nisga’a Nation had never accepted the policy, and it continued to insist, in accordance with the 1913 petition, that its treaty would have to contemplate how the Nisga’a people would govern themselves. Indeed, the self-government provisions of the Nisga’a Nation were negotiated in great detail before the change in federal policy. In 1996, the Nisga’a Nation entered into an agreement-in-principle with the governments of Canada and British Columbia, pursuant to which it would enter into the first modern treaty in which all the self- government provisions are included integrally within the treaty itself – and every land claims agreement since then has done the same. In 1998, the Nisga’a Final Agreement was concluded (figures 9.1 and 9.2), and on 11 May 2000 it came into force. That was a cause for con- The 1998 Nisga’a Treaty 149

9.2 Another photograph of the same event, also showing Edmond Wright, former secretary-treasurer of the Nisga’a Tribal Council and one of the lead negotiators, later secretary treasurer of the Nisga’a Nation. (Photo by Gary Fiegehen, courtesy of the Nisga’a Nation) siderable celebration and it represented a remarkable achievement on the part of the Nisga’a Nation and the Crown in right of both Cana- da and British Columbia. Two fruitless challenges to the constitutionality of the Nisga’a Treaty were brought before the courts. While the legal arguments and rulings are beyond the scope of this paper, the observations of the British Columbia Court of Appeal in rejecting the second challenge sum up the achievement of the Nisga’a Treaty: “The Treaty has been carefully crafted to respect constitutional principle and to fit into the wider constitutional fabric of Canada. It is what it purports to be: an honourable attempt to resolve important but disputed claims, to achieve reconciliation, and to lay the foundation for a productive and harmonious future relationship between the Nisga’a Nation and the non-Aboriginal population of Canada.”14 150 Jim Aldridge

Only a few years after the effective date of the Nisga’a Treaty, Nisga’a government officials came to Ottawa to meet with their colleagues from the other groups across Canada who had entered into modern treaties. They once again found a shared experience – while perhaps the principles of the Royal Proclamation and treaty making had led ultimately, painfully, after centuries of efforts, to these modern treaties, all of the groups expressed frustration that the federal government was implementing the treaties in a way that did not reflect expectations on the Aboriginal side as to how these new relationships were supposed to work. That frustration led to the formation of the Land Claims Agree- ments Coalition and its adoption of four principles that should guide the development of a new federal implementation policy. The principles were chosen because they address matters that underlie the shared frustration. First and foremost, and this goes back to the Royal Proclamation, the agreements are with the Crown – with her Majesty the Queen in Right of Canada and, in many cases, the province. The treaties are with the Crown, not with the Department of Indian Affairs. While lip service is often paid to that simple point, the reality is that – despite the best efforts of many people of goodwill within the federal government who take their responsibilities extremely seriously – there is not the machinery of government to enable and require all departments to act in accordance with the Crown’s constitutional obligations to modern treaty signatories. The coalition’s second principle reflects the fact that treaties are not merely checklists of obligations. Land claims agreements were entered into with an agreed-upon set of objectives. The question that must be asked is whether those objectives are being achieved. The parties should articulate objectives and measure results against those objectives. If the objectives are not being achieved, then means should be found to address that failure. Third, coalition members agreed that the level of representation of the federal governments needed to be more senior. Well-meaning officials at a low level can express their sympathy and heartfelt personal solidarity, but they lack the authority to change government policy or require departments to comply with the treaties. This only exacerbates frustrations. Fourth and finally, there should be some sort of independent implementation and review body that could report back to Parliament on the status of treaty implementation across Canada. The 1998 Nisga’a Treaty 151

The problem is that if modern treaties, like historic treaties, are not implemented properly, the frustration ultimately leads the Aboriginal parties to pursue some other way of resolving the dispute. Most, if not all, land claims agreements permit arbitration, but the federal government is very reluctant to arbitrate – particularly in respect of any issue that has financial or fiscal ramifications. That reluctance has led to increased litigation as more and more groups who had thought they had resolved their differences with the Crown are once again forced to turn to the courts. The Nisga’a Nation, for example, had to commence litigation, unfortunately, in respect of what the Nisga’a say is a failure by Canada, and another failure by British Columbia, to act in accordance with the environmental assessment provisions of the Nisga’a Treaty. Those disputes have now been resolved. But again – this kind of legal dispute is far more likely to arise when governments see land claims agreements as being the end of the process, rather than the beginning of a relationship. The Supreme Court of Canada has clearly stated that there are certain rules that apply to the Crown in implementing treaties and land claims agreements. In its decision in Manitoba Métis Federation v. Canada (Attor- ney General),15 the Court took the opportunity to summarize the principles that should govern the honour of the Crown in exercising her responsibilities in respect of these important relational documents:

• Treaty obligations must be broadly interpreted in accordance with their purpose (or their “objectives,” as the coalition says); • An honourable interpretation of a treaty obligation cannot be a legalistic one that divorces the words from their purpose; • The honour of the Crown requires it to act diligently, in pursuit of its solemn obligations; • The law assumes that the Crown always intends to fulfill its solemn promises, including constitutional obligations, but the duty goes further. If the honour of the Crown is pledged to the fulfillment of its obligations, it follows then that the honour of the Crown requires the Crown to endeavour to ensure its obligations are fulfilled; • Crown servants must seek to perform the obligation in a way that pursues the purpose behind the promise; • The Aboriginal group must not be left with an empty shell of a treaty promise. 152 Jim Aldridge

These principles were articulated by the Supreme Court of Cana- da in 2013, but they clearly hearken back 250 years to the Royal Proclamation, in which the objective was stated to be not only to prevent irregularities in the future but also “to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent.” The effort to achieve that goal continues. The Aboriginal Constitution 153

Cree Experience with Treaty Implementation

matthew coon come

the eeyouch of eeyou istchee

We Eeyouch, the James Bay Crees, call our land Eeyou Istchee, which means “the People’s Land.” We have occupied this land – over 450,000 square kilometers located mainly in what is now northern Quebec – since time immemorial. We have maintained many aspects of our traditional way of life. While much has changed over the past century, our connection to the land has never faltered. In 1975, Canada signed the first so-called “modern treaty” with my people (figure 10.1). This treaty, the James Bay and Northern Quebec Agreement (jbnqa), came after a long dry spell in treaty making, during which the Crown denied that Aboriginal peoples had any rights at all. The negotiations that led to the signing of the jbnqa came about because we challenged the Government of Quebec’s attempts to take our land without so much as a glance in our direction. Since 1975, twenty-four modern treaties have been negotiated and signed in Canada. There is much in our agreements for which we are rightly proud. But there are also aspects of our agreements – and the agreements of all Aboriginal peoples – that were imposed upon us. There are even a few provisions in our agreements, imposed upon us by governments whose conceptions of the rights of Indigenous peoples remain tied to the thinking of past centuries, that are violations of our fundamental human rights. A recurring theme runs through our experiences as modern treaty peoples. They are marked by the Crown’s failure to implement mod- 154 Matthew Coon Come

10.1 The signing of the James Bay and Northern Quebec Agreement on 11 November 1975. Seated, from far left: Judd Buchanan, federal minister of Indian Affairs and Northern Development; Charlie Watt, founding president of the Northern Quebec Inuit Association; Robert Bourassa, premier of Quebec; John Ciaccia, chief negotiator for the Government of Quebec; Jean Chrétien, president of the federal Treasury Board; and Billy Diamond, grand chief of the Grand Council of the Crees (Eeyou Istchee). (Photo courtesy of John Ciaccia)

ern treaties in a way that recognizes and respects the spirit and intent of the agreements. The Crown has persistently refused to see modern treaties for what they are meant to be. Treaties are not about extinguishing Aboriginal rights. They are about committing to live together, with these rights, in a mutually respectful way. This was also the original intention of the Royal Proclamation. Despite the conclusion of modern treaties, our people continue to be under-represented in the education system and in business, and over-represented in the justice system. The conditions in many of our communities parallel those in the world’s poorest countries. Gross disparities continue to exist between Aboriginal peoples and other Canadians. Cree Experience with Treaty Implementation 155

The Royal Commission on Aboriginal Peoples identified the roots of this disparity as being in the continued practice of dispossession of Aboriginal peoples from their traditional territories and extinguishment of Aboriginal rights and title by federal and provincial governments. These practices violate Canada’s obligations under international law. The government’s continued failure to implement its modern treaties also amounts to a violation of Aboriginal peoples’ rights, as enshrined in international instruments and the Canadian Constitution. Over the past forty years, the Cree Nation has tackled these issues on many fronts. We have fought for recognition of our inherent rights. Once those rights were affirmed in a treaty, we fought to have that treaty implemented. When we were rebuffed by domestic forums and ignored by governments, we turned to the international arena. Above all, we have fought to ensure our rightful participation in political decisions affecting our people and our territory, and to uphold our right to share in the economic wealth derived from our territory.

the jbnqa: canada’s first modern treaty

Signed in 1975, the jbnqa was Canada’s first modern treaty. It and its companion implementing legislation led to the creation of the Cree regional government authorities, including the Cree Regional Authority (now the Cree Nation Government), the Cree School Board, and the Cree Board of Health. The agreement also formally recognized Cree local governments, outside of the confines of the Indian Act. In some ways, this agreement was a success. We Crees refused to stop fighting for recognition of our rights. The jbnqa was a result of that fight. But it must be repeated, whenever our story is told, that my people did not freely choose to sit down at the negotiating table. Until the early 1970s, we had no reason to negotiate. We lived on our lands, Eeyou Istchee, as we had forever. We did not “self-govern” – we simply governed. We did not need to apply to other governments for recognition of rights we had always had, and had always exercised. But then those in the south took an interest in the hydroelectric potential of our territory. On 30 April 1971, Premier Robert Bourassa announced that his government intended to build three massive 156 Matthew Coon Come hydroelectric complexes in Eeyou Istchee. According to Premier Bourassa, this would be “the project of the century.” The project required the flooding of thousands of square kilometres of our territory, the diversion of many powerful rivers, and the building of numerous dams. It would forever alter the landscape of Eeyou Istchee and, with it, our traditional practices and our way of life. Our hunting grounds, our burial grounds, and even some of our communities, would soon be entirely lost to flooding. Despite the irreversible effects this project would have on us, we first heard of this planned development when Premier Bourassa’s announcement was reported on the radio. Without even a nod to us – let alone any consultation – the bulldozers began tearing up our rivers and lands. When we protested, the government refused to budge. They told us that we, the people who had occupied this land for thousands of years, had no rights. Whatever rights we thought we had could be revoked at any time. These so-called rights had only been granted “at the pleasure of the Crown.” We refused to accept this fundamental injustice. If the government refused to engage with us, we would bring the fight to it, using its own judicial system. We sued the governments of Quebec and Cana- da, Hydro-Québec, and a number of Crown corporations. Knowing that the dams would be long built before our case would be decided, we also asked the Quebec Superior Court for an interlocutory injunction to stop the hydro project. The trial for the interlocutory injunction, held before Justice Mal- ouf of the Superior Court, lasted three months. Cree hunters and trappers – many of whom had never left Eeyou Istchee – came to Mon- treal to testify before the court about their traditional lifestyle and connection with the land. The Government of Quebec argued that we had no rights to the territory and that, in any event, we had given up our traditional lifestyle, since we ate some modern foods – such as chocolate bars and Kentucky Fried Chicken – and had adopted some modern conveniences. The Superior Court granted our injunction. We had won the first of many battles over the natural resources of Eeyou Istchee. Justice Malouf found that the Crees had apparent rights that could not be disregarded and that the harm we would suffer if the hydroelectric project were permitted to continue would result in damages for which we could never be adequately compensated. How can you com- Cree Experience with Treaty Implementation 157 pensate for the loss of a way of life? How can you compensate for the loss of land that is integral to your identity as a people? A week later, however, the Court of Appeal overturned the Superi- or Court decision, allowing the La Grande hydroelectric project to continue. Nevertheless, Justice Malouf’s courageous decision had come as a surprise to the governments. It challenged their presump- tions by affirming that our inherent rights had not been extinguished. In so doing, it prompted the governments to negotiate with us. It was this violation of our rights that brought us to the negotiating table. We knew that if we did not negotiate, the development on our lands would proceed regardless, and conditions would be imposed upon us. We could not walk away from this fight. And so we went to the negotiating table, reluctantly. By 1974, we had developed an Agreement-in-Principle that promised recognition and protection for our culture, our customs, and our relationship with the land. It took another year to negotiate and draft the final agreement, but at last we settled on terms that protected our traditional way of life, including our right to hunt, fish, and trap on our land, that granted us control over health and social services, and that provided for a regime of social and environmental protection in relation to future development in our territory. The James Bay and Northern Quebec Agreement was signed in November 1975. The terms of those negotiations were not of our choosing. But, in their wisdom, our leaders made the best of these circumstances and obtained the recognitions and benefits that they could. We Crees lived to fight another day. We had great hopes for our communities and institutions. We expected that we would be able to deliver services that responded to our needs, in our own language, on our own lands. We expected that the new institutions would help to safeguard our culture and way of life, while also facilitating our participation in the new activities that were occurring in our territory. We intended, in signing the agreement, to ensure that we could survive, and even thrive, as a people.

broken promises: challenges to implementation

In the years after the jbnqa was signed, we faced overwhelming challenges. It took two years to ratify the agreement into federal and provincial legislation, and, even then, the federal and provincial 158 Matthew Coon Come governments seemed to have no plans for implementation. We quickly realized that the institutions of so-called self-government that had been created by the agreement would not enable us to achieve the clean water, roads, housing, health services, education, jobs, or community centres that we had been promised in 1975. There was a fundamental disconnect between the promises that had been made to us and the actual tools at our disposal as a people to bring those promises to life. Our institutions of self-government remained grossly and persistently underfunded. Once the dams had been built, and the governments had obtained the surrenders and extinguishments that they wanted, they had no reason to concern themselves with the promises they had made. The governments of Canada and Quebec took the position that the jbnqa went too far, and they refused to provide the necessary funding to furnish the health, sanitation, and community services we desperately needed and which were promised to us under the jbnqa. Ironically, despite the hydroelectric potential of our lands, many people in our communities did not even have electricity. Many in our communities had no running water, and there was no proper sanitation infrastructure – rather than sewers, we had open ditches filled with sewage water. Outbreaks of gastroenteritis swept through our communities in the late 1970s and early 1980s. Our children became sick, and some even died. When the governments of Canada and Quebec continued to refuse to implement their treaty obligations and provide funding for health and sanitation services, we began spending our own compensation funds to address these desperate needs. It was clear that we could not stand by and wait for the governments to comply with their obligations. We had to use every tool at our disposal to force them to honour the agreement for which we had fought so hard. And so we continued our fight for the recognition of our rights on the domestic and international fronts. We filed another lawsuit against the federal and provincial governments. We organized a meeting with Pope John Paul II in Rome, to capitalize on his moral authority. We used the public attention and media coverage of this international event to put pressure on the government. We made representations before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, informing its members of the governments’ persistent failure to implement the Cree Experience with Treaty Implementation 159 jbnqa. The committee urged the federal government to address this shameful situation. In 1982, we finally saw some modest progress. Deputy Minister John Tait led a review of the failed implementation of the jbnqa by the federal government. While the resulting Tait Report found that Canada had not broken any laws, it was the first governmental report that confirmed not only that the jbnqa was a treaty, but also that Canada had obligations to the Cree Nation pursuant to that treaty. The Tait Report concluded that Canada was not living up to the spirit and intent of the jbnqa. One of the major problems pointed out in the Tait Report was the absence of any federal policies or government machinery to ensure the implementation of treaty promises. In the face of this damning report, the Government of Canada could no longer maintain that it had no further obligations to the Crees pursuant to the treaty. Canada and Quebec agreed to provide the funds necessary to begin to ensure that Crees obtained the basic services that had been promised in the treaty we had signed and that we knew were provided to non-Aboriginal communities across Cana- da as of right. Nevertheless, our community, health, and education services continued to be severely underfunded, notwithstanding the promises relating to these services that were set out in the jbnqa. We spent the next several decades in litigation and negotiations. We worked to force the federal and provincial governments to abide by the spirit and intent of their treaty obligations under the jbnqa. We worked to force them to respect what we knew to be our fundamental right to benefit from, and participate in, the extraction of wealth from the resources in our own backyard. We made it known, in every international and domestic forum available, that our fundamental human rights as a people could never legitimately be extinguished. We warned that the legal certainty and legitimacy that the Crown was looking for could not be obtained or maintained through forced surrender. This certainty and legitimacy could only be obtained through honourable dealing and meaningful treaty implementation. Over and over again, we declared that an equitable, sustainable approach to development in our territory was possible and achiev- able. An approach to development that is compatible with our way of life and our identity as a people. An approach to development that is based upon an enduring nation-to-nation relationship of coexistence and mutual respect. 160 Matthew Coon Come

The response we received from governments stayed the same throughout the years. We were told that the extinguishment of our rights was the price we had paid for the benefits we had gained under the jbnqa. We were warned that our rights were limited to those explicitly set out in the agreement and that our refusal to accept this so-called “legal truth” put even those limited rights at risk. We were told that the government was complying with all of its legally enforceable obligations, and that the glaring deficiencies we identified were not treaty issues but merely issues of public policy and politics. And often, when we received government offers to implement the promises set out in the agreement, the offers came with a cynical further condition that we were not prepared to accept – that we agree to extinguish the treaty obligation in exchange for one-time delivery, say of a fire station, or of a community centre.

the cree nation on the international stage

In the face of the intransigent refusal of the federal and provincial governments, the Cree Nation turned to international forums to fight for the implementation of our treaty and of Canada’s international obligations in relation to Aboriginal peoples. Over the last thirty years, the Cree Nation has participated actively in the development of international conventions relating to Aboriginal rights, such as the United Nations Declaration on the Rights of Indigenous Peoples. We have shown that international forums can be an effective means to hold the governments to account at home. We have also launched a number of successful international cam- paigns, using the media to draw attention to the challenges the Cree Nation has faced. We have used these tools to force the governments of Quebec and Canada to uphold their obligations to the Cree Nation under the jbnqa. The Great Whale Project is one example of how we fought on the international stage to successfully defeat a project that would have destroyed our land.

the battle for great whale river

In 1989, when Hydro-Québec announced its intention to begin the second phase of its hydroelectric project in the James Bay watershed, the Cree leadership reflected on the social and environmental impacts related to the first phase of the project – the high levels of mercury in Cree Experience with Treaty Implementation 161 fish, the effects on the migration patterns of caribou and other wildlife, the destruction of the forests, the relocation of our communities. We also considered our experience of the indifference of the federal and provincial governments with regard to the implementation of their obligations under the jbnqa. We decided that we would stop at nothing to ensure that the Great Whale Project was not built. We launched a massive international campaign to bring an end to the Great Whale Project. Robert Bourassa’s Liberal government, in power once again, wanted to sell electricity to the United States. We sought to show that the disastrous environmental consequences of this project would far outweigh the questionable economic benefits. Our international campaign began with an Odeyak (a traditional canoe) trip into New York City’s harbour on Earth Day, 22 April 1990. This trip, and our subsequent speeches at a number of American universities, generated grassroots support for our opposition, as well as support from high profile non-governmental organizations such as Greenpeace. At home, we fought for a comprehensive and impartial environmental review of the Great Whale Project. Neither Quebec nor Cana- da was willing to undertake such a review, so we lobbied ngos and American politicians along the Eastern seaboard, including the governor of New York, Mario Cuomo, to call for an environmental review of the project before finalizing their agreement to purchase energy generated by the Great Whale Project. Ceding to public pressure, these politicians demanded that reviews take place before they followed through with the purchase of energy from Eeyou Istchee. The public pressure on Canada and Quebec was growing. At the same time, we filed a lawsuit against the Quebec and Cana- dian governments in 1989 to force the governments to undertake a comprehensive environmental review of the project. In 1991, the Fed- eral Court ruled that the Great Whale Project fell within both federal and provincial jurisdiction and that both were required to undertake environmental reviews. We were determined to stop the Great Whale Project; we would not settle for simply having the project reviewed. We continued our international campaign and took our case to the International Water Tri- bunal in Amsterdam. After a week of hearings, the tribunal ruled that the project would violate the rights of the Crees and the Inuit whose territory would be flooded, and that the Great Whale Project should not proceed. 162 Matthew Coon Come

Faced with staunch public opposition and a Federal Court judgment, Hydro-Québec had no choice but to undertake an environmental assessment of the project. It took more than a year to produce the assessment directives to guide Hydro-Québec in the preparation of its environmental and social impact statement. When Hydro-Québec delivered its report a few months later, the review bodies established under the James Bay and Northern Quebec Agreement heavily criticized the report for its deficiencies in the social and environmental assessment of the project. The review bodies prepared a joint report, concluding that Hydro-Québec had not complied with the guidelines and requiring the impact assessment process to begin anew. Before this could happen, however, the Liberal Party of Quebec was once again ousted by the Parti Québecois. On 17 November 1994, the day before the report calling for Hydro-Québec to rewrite its impact assessment was to be released, newly elected Premier Jacques Parizeau announced that the Great Whale Project would be shelved.

the fight to stay in canada

Just as soon as the battle for Great Whale River had been won, a new battle began for the Cree Nation: the battle to remain in Canada. The priority of the Parti Québécois, upon re-election in 1994, was the secession of Quebec from Canada and the creation of an independent state. In 1980, when the Parti Québécois had previously been in power, it had held a referendum asking Quebecers if it should seek sovereignty for Quebec. Sovereignty was voted down by approximately 60 per cent of voters. The political climate had changed in 1994. Upon regaining power, the Parti Québécois vowed to hold a second referendum. It launched a campaign to convince Quebecers to vote to separate from Canada and create their own independent nation. It proclaimed that Quebe- cers – that is, anyone who resided within the current borders of Quebec, including the Crees – constituted a “people” entitled to self- determination. But what about the Crees’ own right to self-determination? It was taken for granted that our lands, Eeyou Istchee, would become part of this independent nation, regardless of what the Crees wanted and regardless of the effect that Quebec’s secession would have on our rights. Eeyou Istchee, and the Eeyouch with it, would simply be hand- Cree Experience with Treaty Implementation 163 ed over, once again, without any regard for our rights and views. When we protested, the Parti Québécois replied that we had surrendered our rights when we had signed the jbnqa. But the jbnqa established rights and obligations implicating both the provincial and federal levels of government. Moreover, these rights and obligations had been constitutionalized when section 35 was adopted as part of the Constitution Act, 1982. Our relationship with the federal government could not be unilaterally abolished, nor could its responsibilities toward us be unilaterally transferred to another nation. Once again, the Crees were not informed or consulted. Once again, we took matters into our own hands. Once again, we took our fight to the international arena. On 24 October 1995, we held our own referendum, in which our people spoke out clearly and in one voice. Our people were asked, “Do you consent, as a people, that the Government of Quebec separate the James Bay Crees and Cree traditional territory from Canada in the event of a Yes vote in the Quebec referendum?” Over 96 per cent of our people responded No. Our people forcefully asserted our own right to self-determination – the right to freely determine our own political status and to make decisions about our territory. Despite our complicated and often difficult relationship with the federal government, we chose to remain in Canada; Quebec did not have the right to make that choice for us. We launched an international campaign to demonstrate the unlaw- fulness of Quebec’s position. Quebec maintained that, as a “people,” it had the right under international law to secede from Canada. We produced a major legal brief entitled Sovereign Injustice: Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Quebec and tabled it at the United Nations in Geneva. We distributed it to state departments, academics, libraries, and courts around the world. This brief challenged Quebec’s alleged right to secede from Canada and argued that the Parti Québécois was applying a racist double standard by asserting Quebec’s right to self-determination while denying the same right to the Crees of Eeyou Istchee. The sovereigntists lost the 1995 referendum by less than one per cent. In 1998, the Supreme Court of Canada held that Quebec did not have a right, under domestic or international law, to secede unilaterally from Canada. The Cree Nation intervened in this case. Canada’s highest court acknowledged the importance of our and other Aborig- inal groups’ submissions regarding our rights and the appropriate 164 Matthew Coon Come means of defining the boundaries of Quebec, should it secede, with regard to Eeyou Istchee. The Supreme Court unfortunately declined to comment further regarding our rights as a people. Nevertheless, the decision was a major victory for the Cree Nation, because it upheld our position that Quebec did not have the right to secede unilaterally.

the continuing fight for the right to self-determination

Following the failed Quebec referendum, the Cree Nation continued to use international forums to campaign for our right to self-determination. Both the International Covenant on Economic, Social and Cultur- al Rights and the International Covenant on Civil and Political Rights, to which Canada is a signatory, guarantee that “all peoples have the right of self-determination” and that “all peoples may, for their own ends, freely dispose of their natural wealth and resources … In no case may a people be deprived of its own means of subsistence.”1 Throughout the 1990s and 2000s, we decided to use these internationally recognized legal principles to bring attention to the plight of Aboriginal peoples across Canada. We wanted to publicize Canada’s failure towards Aboriginal peoples, particularly with regard to its practices of dispossession and extinguishment of rights. It was our position that these practices violated Canada’s international obligations. Moreover, we argued that Canada’s persistent failure to implement its domestic modern treaties with the Aboriginal peoples of Canada violated its international obligations under the international covenants. In 1998, Canada ranked first in the world on the United Nations quality of life index. It had held that position for six years. Aboriginal peoples living on reserves ranked approximately sixty-third on the UN scale.2 Canada, one of the richest countries in the world, had signed international covenants, binding itself to uphold, respect, and implement the principles enshrined in these covenants. And yet, when it came to Aboriginal peoples, Canada had failed. We made representations before the UN Human Rights Commit- tee (hrc) and the Committee on Social, Economic and Cultural Rights. We argued that the root cause of the gross disparity between Aboriginal peoples and non-Aboriginal people in Canada was the past and ongoing dispossession of Aboriginal peoples from their tra- Cree Experience with Treaty Implementation 165 ditional territories. This, coupled with the ongoing practice of “extinguishment” of Aboriginal rights and title, made it impossible for the Aboriginal peoples of Canada to become economically, culturally, and politically self-sufficient. We were consistently and methodically denied our right to self-determination. The international committees agreed with our representations, and found that Canada’s policies of dispossession and extinguishment violated international human rights law.3 In fact, the hrc recommended that “the practice of extinguishing inherent Aboriginal rights be abandoned as incompatible with article 1 of the Covenant.” Both committees expressed concern that, while Canada recognized that the challenges faced by Aboriginal peoples was “the most pressing human rights issue” in the country, it had failed to seriously implement the recommendations of the federally mandated Royal Commission on Aboriginal Peoples (rcap).4 In 1996, rcap predicted:

[A]boriginal peoples need much more territory to become economically, culturally and politically self-sufficient. If they cannot obtain a greater share of the land and resources in this country, their institutions of self-government will fail. Without adequate lands and resources, Aboriginal nations will be unable to build their communities and structure the employment opportunities necessary to achieve self-sufficiency. Currently on the margins of Canadian society, they will be pushed to the edge of economic, cultural and political extinction. The government must act forcefully, generously and swiftly to ensure the economic, cultural and political survival of Aboriginal nations.5

Nearly twenty years later, despite numerous condemnations by the international community of its failure towards Aboriginal peoples in Canada, and despite signing on to the United Nations Declaration on the Rights of Indigenous Peoples in 2010, Canada continues its unfair and illegal practice of dispossession and extinguishment of inherent rights and title. In continuing these practices and failing to adequately address the situation of Aboriginal peoples, Canada is failing to implement its international obligations pursuant to the International Covenant on Economic, Social and Cultural Rights, the Internation- al Covenant on Civil and Political Rights, and the United Nations Declaration on the Rights of Indigenous Peoples. 166 Matthew Coon Come

10.2 The signing in Waskaganish, Quebec of the agreement concerning a new relationship between the Government of Quebec and the Crees of Quebec (widely known as Paix des Braves) on 7 February 2002. From left: Matthew Coon Come, national chief of the Assembly of First Nations (and also then-former grand chief of the Grand Council of the Crees); Bernard Landry, premier of Quebec; and Ted Moses, grand chief of the Grand Council of the Crees (Eeyou Istchee) and chairman of the Cree Regional Authority. (Photo courtesy of the Grand Council of the Crees [Eeyou Istchee])

the paix des braves: a nation-to-nation agreement

Despite these challenges, we did not stop fighting. And in recent years, after nearly three decades of struggle, we have experienced some success. On 7 February 2002, we signed the Paix des Braves, a landmark nation-to-nation agreement between the Cree Nation and the Government of Quebec (figure 10.2). Under this agreement, the Gov- ernment of Quebec provides funding for the Crees to assume Que- bec’s obligations under the jbnqa regarding economic and social development, for a period of fifty years. The amount of funds trans- Cree Experience with Treaty Implementation 167 ferred is indexed to the value of mining, forestry, and hydroelectric development, over the full extent of our territory. We are therefore guaranteed a long-term source of revenue from the resources on our lands. In addition, the forestry regime across our territory was overhauled in favour of a new system implemented in cooperation with the Crees and planned at the level of family hunting territories. For years, our right to share in the benefits derived from our lands was not respected. The Paix des Braves establishes the foundation for a new and equitable approach. The Paix des Braves is premised on a nation-to-nation recognition that Cree consent is required for resource development in Eeyou Istchee. It reaffirms our fundamental connection to all of the lands and waters of Eeyou Istchee. It implements our right to be involved in development on our territory, and to benefit meaningfully from that development. In true Cree spirit, before finalizing the agreement with Quebec, we approached the nine Cree communities of Eeyou Istchee and sought the advice and knowledge of our people. Based on their feedback, we undertook more negotiations with the government. We took a vote on whether we should undertake this new agreement, and 70 per cent of Crees voted in favour of signing the Paix des Braves. By far the most contentious element of the Paix des Braves was that it gave Cree consent to a partial diversion of the Rupert River and the construction of a power-generating station and forebay on the East- main River. Some members of our community could not understand why we had so fervently contested the Great Whale Project and yet consented to the Rupert Diversion Project. As I said then:

In the past, we have fought development when they wanted too much, when the projects they proposed were too large and destructive of the land. In Great Whale, they wanted to block three rivers, and put powerhouses on the Great Whale. In [the Nottaway-Broadback-Rupert Project], they wanted to block another two large rivers and put the powerhouses on the Broadback River. They wanted seven rivers. I look at the Agreement before us, and I see they want to block one river. This is progress.6

The Cree Nation does not oppose all development. We are opposed to development that is destructive to our way of life in Eeyou Istchee. We are opposed to development that is thrust upon us, rather than 168 Matthew Coon Come undertaken with our participation and consent. With the Paix des Braves, the Government of Quebec agreed to cancel the Nottaway- Broadback-Rupert Project. We protected those rivers and over 7,500 square kilometres of our traditional territories from flooding. For the first time, we were involved in the process, and stood to benefit in tangible and lasting ways from development on our lands.

the development of a “new relationship” with canada

The Paix des Braves was a landmark agreement between the Cree Nation and Quebec, one that began to remedy the historic injustices suffered by our people at the hands of the province. This agreement also paved the way for the conclusion of an agreement with the Gov- ernment of Canada. For over thirty years, we fought tooth and nail with the Canadian government over the non-implementation of its obligations pursuant to the jbnqa. We fought on many battlefields: in backrooms, in court, in international forums, and in the media. It was a long road, full of demands and dissatisfaction. Finally, in February 2008, we were able to bring an end to the dispute over the non-implementation of the jbnqa, with the conclusion of the Agreement Concerning a New Relationship Between the Gov- ernment of Canada and the Cree of Eeyou Istchee. Under this agreement, as in the Paix des Braves, the Cree Nation assumed certain federal obligations under the jbnqa for a period of twenty years. The New Relationship Agreement guarantees the Crees the resources required to implement Canada’s outstanding obligations under the jbnqa. It is not a permanent solution to non-implementation, but it has freed us from the necessity of year-to-year negotiations (and disputes) and allowed the Cree Nation to focus on developing our own administration and institutions of government. In negotiating the New Relationship Agreement, we adopted a new approach: funding was to be premised upon an assessment of the true costs of accomplishing the obligation in question. As many other Aboriginal peoples in Canada can attest, this is, unfortunately, a radi- cal proposition when it comes to modern treaty implementation. We hope that this agreement will be seen as a model of modern treaty implementation. Cree Experience with Treaty Implementation 169

the eeyou marine agreement

In 2010, the Crees reached another important agreement with the federal government. The jbnqa had not addressed the Crees’ claim over lands outside of Quebec, including the offshore islands in James Bay and Hudson Bay, which had been in dispute since 1975. We commenced litigation against the Government of Canada in 1989, in part to address this issue. It took until 2003 for Canada to agree to negotiate in relation to the offshore islands. The Eeyou Marine Region Land Claims Agreement was signed by the Crees and the governments of Quebec and Nunavut in 2010, and was ratified by Parliament in 2012. It recognizes the Crees’ ancestral right to hunt, trap, fish, and manage the land in this area. It guarantees that Crees can continue to occupy this area as we have always done. The Eeyou Marine Agreement also created a number of administrative regimes that affirm the Cree Nation’s leading role in determining future developments and land management planning in the offshore marine area. Under the agreement, we have exclusive jurisdiction over certain energy-producing projects. The agreement creates the possibility of future revenue, as it recognizes the Cree Nation’s surface and subsurface rights over the islands in question, along with royalties relating to the extraction of resources from the Eeyou Marine Region. It also provides opportunities for future employment, as Crees will have priority for government employment and contracts.

a step closer to self-determination: the cree nation government

When the jbnqa was signed, the territory of Eeyou Istchee was divided into three categories. Category I lands were reserved exclusively for use by the Cree Nation, Category II lands were subject to exclusive Cree hunting rights, and the remainder were classified as Category III lands. Under the jbnqa, the Cree Nation’s participation in the governance of the territory was restricted to Category I lands. Moreover, legislation passed by Quebec in 2001 transferred critical powers over land use planning and resource management across the territory to the non-Aboriginal municipalities in the southern part of Eeyou Istchee. This legislation excluded the Crees, despite the fact that we 170 Matthew Coon Come form the majority of the territory’s population and occupy the territory in its entirety. In 2008, then-premier Jean Charest announced the Plan Nord, an ambitious plan for the accelerated development of natural resources located largely within Eeyou Istchee. The government’s plan anticipated some $80 billion in investment over a twenty-five-year period to support and facilitate the development of natural resources in the North. The Plan Nord provided the impetus for negotiations regarding the governance of Eeyou Istchee. We made it clear to Quebec that without the inclusion of the Cree Nation in the governance of our territory as a whole, we would not support the Plan Nord. Indeed, we would actively oppose it with the same intensity with which we had opposed the hydroelectric projects of the 1990s and Quebec’s position on our lands in the context of its possible secession from Cana- da. But we also advised Quebec that an alternative approach could be realized: the Cree Nation and Quebec could work together to develop a governance regime for Eeyou Istchee based on Cree inclusion. In 2012, after two-and-a-half years of intensive negotiations, the Agreement on Governance in the Eeyou Istchee James Bay Territory was concluded between the Cree Nation and Quebec. This historic agreement creates a formal governance partnership between the Cree Nation and the non-Aboriginal communities in the region, known as the Jamésiens. Pursuant to this agreement, the Cree Nation Govern- ment has assumed responsibility for the land use planning processes and resource management functions previously exercised by Quebec over Category II lands (a territory of approximately 70,000 square kilometers). At the same time, a new regional government was created which exercises land use planning powers over Category III lands (approximately 300,000 square kilometers). This new regional government is comprised of representatives of the Cree communities as well as the non-Native municipalities in the region. For the first ten years, representation on the regional government will be on a parity basis between the Cree communities and the non-Native communities. After that initial period, the representation will be based on demographic realities and democratic principles. The governance agreement is a further step away from a governance model that excluded the Crees, and a further step towards a model of inclusion and respectful engagement. This governance agreement is Cree Experience with Treaty Implementation 171 the first attempt – in all of Canada – at a real local governance structure founded upon the inclusion of Aboriginal peoples.

a treaty is only as good as its implementation

Since the signing of the jbnqa, over the last forty years, the Cree Nation has struggled to progressively and incrementally put into place the necessary tools for our nation, our communities, and our people to continue to thrive in health and security. Our experience demonstrates that the value of modern treaties must be measured by the success of their implementation – and that implementation requires consistent and persistent attention. Modern treaties are full of potential. They present an opportunity to overcome some particularly shameful aspects of Canadian history, to step beyond the policies and practices of colonialism. They can affirm nation-to-nation and government-to-government relationships between Aboriginal peoples and the Crown. They can provide a foundation for mutually beneficial and sustainable development and use of Aboriginal peoples’ traditional lands and resources. Modern treaties must not be about surrendering our rights. They must be about working together to give practical effect to our rights, on an ongoing basis. If properly implemented, modern treaties have great potential. They can be important vehicles for meeting Canada’s human rights obligations. They can provide a framework for mutually beneficial relationships between the Crown and Aboriginal peoples. They can contribute to the survival and well-being of Aboriginal peoples, as peoples. Unfortunately, if they are not properly implemented, modern treaties also have the potential to perpetuate great harm. They can become a tool of dispossession. They can be used to disenfranchise and margin- alize us. And so we must not stop fighting. We must continue to fight for the recognition of our rights. We must not back down in the face of the Crown’s failure to respect the spirit and intent of our agreements. Together, we can work to ensure that modern treaties are respected, honoured, and fully implemented so that we may achieve their objectives. We must not stop. Modern treaties must reflect what the Royal Proclamation was intended to be, when it was ratified at Niagara 250 172 Matthew Coon Come years ago: a recognition of Aboriginal peoples as nations with a special relationship to our traditional territories. The spirit of modern treaties must be understood as being as significant as the technical legal obligations contained within them. It must be understood that modern treaties are not about extinguishing Aboriginal rights, but rather about a commitment to work together to give effect to these rights. Until this has been achieved, we must not stop. The Aboriginal Constitution 173

The Alaska and Canadian Land Claim Settlements

alastair campbell

introduction

“Genius, vision, adventurousness are not greatly present in Canada’s Indian record.”1 So wrote John Collier, Franklin Roosevelt’s “New Deal” Commissioner of Indian Affairs, in 1947. It is difficult to quar- rel with his assessment, in the context of his times. Despite its overall bleak historical record in its dealings with Aboriginal peoples, the United States has sometimes shown a capacity to act decisively, and in advance of Canada, in a positive sense. Thus the United States extended citizenship and voting rights to all American Indians in 1924, while registered Indians in Canada received the right to vote federally only in 1960.2 The United States established an Indian Claims Commission in 1946, when it was still illegal in Canada to raise money to pursue a land claim. Finally a land claims settlement was enacted for Alaska only two years after the Canadian government had issued a White Paper on Indian Policy, which stated that, “Aboriginal claims to land … are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and programme that will end injustice to Indians as members of the Canadian community.”3 The Alaska Native Claims Settlement Act (ancsa) marked a departure from the practice, followed by the Indian Claims Commission in the United States, of providing cash compensation for Indian land claims. In essence, the settlement provided for Native4 land ownership 174 Alastair Campbell of approximately 11 per cent of the state, $962.5 million in cash payments, and the extinguishment of Aboriginal title. Beyond the magnitude of the settlement, its novelty was shown by the vesting of land and cash in Native corporations, rather than having the land held in trust for tribal governments, under the administrative control of the Bureau of Indian Affairs (bia). The corporate ownership model, coupled with the extinguishment of Aboriginal title, provided a basis for attacks on the settlement as a form of termination. But it also provided an example of how Aboriginal title claims could be settled outside the framework of the Indian reservation system – a potentially attractive prospect to the Canadian government. Thus, when the Canadian Cabinet came to consider Indian and Inuit land claims in 1973, the Alaska settlement formed part of the backdrop to its deliberations. In particular, the Alaska settlement was discussed as a model for resource revenue sharing, with a time limit or cap on the total resource revenue transfer.5 Canadian Aboriginal peoples were also interested in the Alaska experience. Members of the Northern Quebec Inuit Association went to Anchorage to study the settlement in 1973, as the Canadian government announced a land claims policy and negotiations began towards the James Bay and Northern Quebec Agreement (jbnqa).6 With similar interest, the executive of the Tungavik Federation of Nunavut (tfn) travelled to Barrow in 1986.7 Perturbed by aspects of the Alaska settlement, the representatives concluded that claims settlement corporations in Nunavut should not be based on individual shareholding arrangements and should not be the direct recipients of cash settlements.8 These conclusions were reflected in the Nunavut Land Claims Agreement (nlca), when it was negotiated. There were also contacts with Alaska Natives by First Nations in Yukon, British Columbia, and the Northwest Territories (nwt), and by Inuvialuit9 in the nwt. Indeed the Arctic Slope Regional Corporation extended a loan to the Inuvialuit to support their land claims work in Canada. Moreover, the Inuvialuit were interested not only in the claims settlement, but also in the North Slope Borough, a regional government in northern Alaska which greatly influenced an Inu- vialuit proposal to establish a Western Arctic Regional Municipality. But although influenced at the outset by the Alaska settlement, Canadian land claims settlements have diverged from it considerably, Alaska and Canadian Land Claim Settlements 175 have shown a broader scope, and have dealt in a more satisfactory manner with many of the issues which have had to be dealt with in Alaska since ancsa was enacted.

background to the alaska settlement

Before the Second World War, when Japanese troops occupied Attu Island and Kiska Island, and the Alaska Highway was built as a military support measure, Alaska was peripheral to mainstream American interests. S.E. Morison’s scholarly history of the United States, for example, contains only a few, mainly passing, references to Alaska in a work of over 1,100 pages.10 The Second World War and the Cold War highlighted the strategic importance of a territory purchased by the United States from the Russian Empire in 1867 for $7.2 million, an acquisition derided at the time as “Seward’s folly.” Some of the first actions to protect Native land rights had their origins in responses to these strategic considerations. Particularly notable was Project Chariot, a plan launched in 1957 initially to detonate a nuclear device at Cape Thompson, near Point Hope, an Iñupiat11 community in northern Alaska. This project was later expanded to five nuclear devices, the intent being to explode the devices in order to create a deep-water artificial harbour, which could then be used for the shipment of mineral resources. The United States Atomic Energy Commission did not share details of this plan with the community of Point Hope until 1960, at which time it attempted to minimize the possible negative impacts of the project. Opposition quickly mounted, leading to the founding of Iñupiat Paitot (Iñupiat Heritage), an Iñupiat rights organization, in 1961 and the launching of Tundra Times, a newspaper which publicized Iñupiat and other Alaska Native issues, the following year. Late in 1962, the Atomic Energy Commission announced that it would “defer” the project.12 The most important driver for the recognition of Native rights was Alaska’s constitutional development, along with the realization of the territory’s immense resource riches. There had been a growing movement within Alaska for statehood following the Second World War, and this received impetus after a major discovery of oil along the Swanson River in 1957. The discovery “was crucial in helping convince Congress that the territory did indeed have the economic potential to 176 Alastair Campbell become the forty-ninth state,” thus finally ensuring passage of the Alas- ka Statehood Act, as summarized by Campbell and Cameron:13

The Alaska Statehood Act placed state land ownership, Alaska Native land rights, and resource development issues at the forefront of state politics for more than a decade. The act authorized the state to select approximately 416,800 square kilometres14 of land, from the public domain, over a twenty-five-year period. Precluded from selection were any lands to which Alaska Natives held right or title, but the state government presumed that lands used by Alaska Natives for “subsistence”15 purposes were part of the public domain, hence available for selection. State selections thus began to encroach upon lands used to support a traditional livelihood.16

Alaska Natives challenged the state’s selections case by case and then demanded a freeze in federal-state land transfers. In 1963, 1,000 Natives from twenty-four villages forwarded a petition to the Secre- tary of the Interior. It called for a freeze on land transfers, to protect Native rights. 1966 saw the formation of the Alaska Federation of Natives (afn), which at its first convention recommended that transfers of federal land be frozen pending settlement of Native land claims. A freeze on lands subject to such claims was instituted by the Secretary of the Interior, Stewart Udall, in the same year.17 In a letter to the governor of Alaska, Walter Hickel, a strong and sometimes precipitous opponent of the land freeze, Udall explained: “In the face of Federal guarantee that the Alaska Natives shall not be disturbed in the use and occupation of lands, I could not in good con- science allow title to pass into others’ hands … to permit others to acquire title to the lands the Natives are using and occupying would create an adversary against whom the Natives would not have the means of protecting themselves.”18 Udall’s action led to the filing of an unsuccessful lawsuit, against the freeze, by the state government.19 A curious sequence of events was to follow. On 11 December 1968, President-elect Richard Nixon announced his intention to appoint Hickel as Secretary of the Interior. On the same day, Udall announced that, in order to safeguard Native land rights, he would withdraw all federal land in Alaska from disposition “across the board.”20 Udall followed up by signing Public Land Order 4582, instituting a “super land freeze” on 17 January 1969 – three days before he left office. This affected 90 per cent of the state, preventing Alaska and Canadian Land Claim Settlements 177 mineral leases, homesteading, state land selections, and other forms of federal land transfer. The freeze was to remain in effect until the end of December 1970.21 Prior to his confirmation in the position of Secretary of the Interi- or, Hickel had publicly announced his intent to undo Udall’s freeze and, as a result, he faced considerable opposition to his appointment from regional Alaska Native organizations. On conservationist grounds, the New York Times, the Los Angeles Times, the Sierra Club, and others also opposed Hickel’s appointment. He sought the support of the afn for the nomination, but this was refused unless he would first give a public undertaking not to lift the land freeze. A crucial role was played by the chairman of the Senate Committee on Interior and Insular Affairs, Henry Jackson. Senator Jackson supported the land freeze and doggedly pursued Hickel on the issue in committee, over three days. On the third day, after considerable equiv- ocation, Hickel at last agreed to continue the land freeze that Udall had put in place.22 He thus finally secured afn’s endorsement and Senate confirmation of his nomination. In late 1967, the largest petroleum deposit in North America had been found at Prudhoe Bay, and pressure mounted to deal with Native claims. To market the oil, the Trans-Alaska Pipeline System (taps) sought to build an oil pipeline from Prudhoe Bay to the Gulf of Alaska, and, in December 1969, Hickel – with Senator Jackson’s support – secured the authorization of Senate and House Commit- tees to issue a pipeline right-of-way, despite the land freeze. In response, early in 1970, cold-shouldered by taps in their attempts to secure some employment and business benefits from the development, five Tanana villages commenced a suit against the right-of-way in the District of Columbia District Court. They secured the injunction, and taps then determined that it would support a legislated settlement to the satisfaction of Alaska Natives.23 As American Native rights legal advocate Charles Wilkinson explains, the stage was now set to settle the claim: “All the players wanted congressional relief. The state wanted to make its statehood land selections. The energy and construction companies wanted the oil and gas drilling and accompanying pipeline. The labour unions wanted jobs from all the construction and resource extraction. The Natives wanted a secure land base. Even the emerging environmental movement saw an opportunity for large conservation set-asides. Alaska … was about to be carved up.”24 178 Alastair Campbell

Within the afn, two important issues had to be resolved. The first was the settlement vehicle. The Arctic Slope Native Association (asna), representing an Iñupiat region, advocated that regional councils be established under the Indian Reorganization Act, with the land to be held in trust by the federal government. This proposal would have protected the land from sale, takeover, or seizure for non-payment of taxes, but it was soundly defeated within the afn.25 Anthropologist Norman A. Chance explains this rejection as based upon dislike of the bia, together with the view that the corporate model allowed an opportunity to participate in the economic growth of the state: “The lure of corporate power and wealth … held considerable appeal to some Native leaders who had been frustrated by years of political powerlessness and poverty. If the claims settlement meant opening the door to the economic mainstream and its increased standard of living, then it was time to learn how to use the tools of that structure.”26 In this light, the Tanana Chiefs Conference president, Alfred Ketzler, wrote in the New Republic, before ancsa was enacted: “Native leaders in Alaska have given great attention to the structure of the settlement … Indeed, the concept of the development corporation is ours.”27 Similarly, Charles Edwardsen Jr., the executive director of asna, although he voted against ancsa, and later said of the settlement “we were simply robbed,” nonetheless stated that asna had played “a substantial part” in developing the idea of the Native corporation as a settlement mechanism. He described the corporation as “a new harpoon,” with which Iñupiat could sustain themselves.28 A second and more drawn-out issue was the allocation of settlement moneys between regions. The afn initially decided that funds should be allocated according to the population size of each of the twelve regions. asna, representing the most oil-rich region, took the view that settlement funds should be allocated according to the regional area of land surrendered and was so opposed to the afn position that it withdrew its membership from the afn.29 Although asna did return to the afn, the issue of the distribution of benefits on a regional basis was not resolved as the group sought, leading asna eventually to vote against ancsa. The first bill proposed to settle Alaska Native claims was introduced into Congress in June 1967. Through the next four years, various bills were proposed, with the afn engaged heavily in the lobbying process. Finally, in April of 1971, President Nixon proposed a settle- Alaska and Canadian Land Claim Settlements 179 ment, with a land and financial quantum acceptable to the afn, which was eventually enacted. Before signing the act into law, President Nixon apparently sought confirmation that it was agreed to by Alaska Natives. A special assembly of the afn was held in Anchorage, and six hundred delegates debated the bill for two days. Only asna (passionately) and a small group of delegates resident in the State of Washington opposed the settlement, which was accepted by a vote of 511 to 56. ancsa was signed into law by President Nixon on 18 December 1971, and the president advised the afn delegates of his signature by telephone.30

outline of the alaska settlement

The core of the settlement was its provisions for 12 regional and 211 village, share-based corporations, chartered under state law, to manage the settlement lands and settlement moneys.31 Shares in these corporations were awarded to approximately eighty thousand persons who were enrolled under ancsa. Enrollment required acceptance as being of not less than one quarter of Alaska Native ancestry, and birth on or before 18 December 1971. Those living in villages (approximately two-thirds of the total) were awarded both one hundred shares in a regional corporation and one hundred shares in a village corporation. Those living outside the villages received one hundred shares in a regional corporation only, along with some additional rights to revenues from regional timber and mineral resources. A thirteenth corporation, headquartered in Seattle, was established for non-residents of Alaska to receive moneys, but no land. Shares in the village and regional corporations could be inherited, but not sold or otherwise alienated for twenty years. After twenty years, these shares could be traded on the open market. A sum of $462.5 million was paid to the regional corporations, over an eleven-year period, from Congressional appropriations. A further $500 million was paid from a royalty on oil leases on federal and state lands.32 Total payments (combining the appropriations and royalties) thus amounted to $962.5 million. Of this amount, 50 per cent was paid by the regional corporations to the village corporations within each region, as well as 50 per cent of all revenues received from the subsurface estate. Several other provisions were laid out under the settlement. One that led to a great deal of litigation required each regional corporation 180 Alastair Campbell to divide among all twelve regional corporations 70 per cent of the mineral and timber resource revenues received by it. In another provision, the village and regional corporations were awarded the surface title, in fee simple, to 178,064 square kilometres of land.33 The village corporations received surface title to half of these lands. The subsurface title underlying all settlement lands, with some particular exceptions, was vested in the twelve regional corporations.34 A further provision stated that Native corporate lands, which were undeveloped and unencumbered by leases to third parties, were exempted from state and local taxation for twenty years. Finally, section 4 of the act provided for the extinguishment of Aboriginal title throughout the state: “All aboriginal titles, if any, and claims of aboriginal title in Alas- ka based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished.”35 The act, in other words, was a complete settlement: it defined Alaska Native land rights in toto.

concerns in relation to ancsa

Concerns associated with the settlement and its implementation included the ability to sell or otherwise dispose of shares after 1991, the possibility of hostile corporate takeovers after that date, the restric- tion of shares to those born on or before 18 December 1971, the risk of having to sell lands to avoid bankruptcy or in order to pay taxes, protracted delays in conveying lands to Native corporations, extensive litigation regarding revenue sharing between regional corporations, devaluation of the cash settlement as a result of high inflation, the insolvency of many village corporations, and other matters.36 As noted, Congress extinguished hunting and fishing rights through ancsa, and did not otherwise deal with Native subsistence rights. The 1980 Alaska National Interest Lands Conservation Act provided for subsistence hunting and fishing on federal lands, with a preference for “rural residents.” Rural preference has been described as an attempt to protect Native subsistence while not discriminating on the basis of ethnicity. However, the Alaska Supreme Court has ruled that the rural preference established a special privilege and is unconstitutional. The outcome has been that the federal government applies the rural preference on the lands that it administers, but the state has sought a more restrictive meaning of rural preference for Alaska and Canadian Land Claim Settlements 181 state and private lands, which include Native corporate lands. In addition, some Native communities have been deemed no longer “rural,” thus placing them outside the application of the rural preference provisions. There has been “considerable conflict” over subsistence hunting on state lands, including litigation.37 From 1983 to 1985, former Justice Thomas Berger undertook a review of ancsa for the Inuit Circumpolar Conference and the World Council of Indigenous Peoples.38 Previously Berger had served the Canadian government as commissioner for the Mackenzie Valley Pipeline Inquiry.39 In conducting that inquiry he had visited thirty- five communities. “I decided that I should give northerners an opportunity to speak for themselves,” he stated in his report. “That is why I held hearings in all northern communities, where the people could speak directly to the Inquiry.”40 The financial resources of the Alaska Native Review Commission were very limited in comparison to the Mackenzie Valley Pipeline Inquiry; however, Berger followed the same consultative strategy. In the two years of the review, he visited sixty communities and heard from more than 1450 witnesses.41 He found that “Discontent with ancsa simmers everywhere in the state. Alaska Natives believe they have been cheated.”42 In his view, there had been insufficient community-level involvement in developing and approving the settlement, and he reported that: “Today … in the villages, Alaska Natives com- plain that they were not consulted: there were no hearings and no vote on ancsa in the villages.”43 Given the complexity of the settlement, the corporate model, the disputes between regions, and the intense political lobbying in Wash- ington and elsewhere through which ancsa was brought into being, it is not difficult to appreciate that many of those at the community level must have felt that they had had little part in it. Nonetheless, ancsa was approved by a vast majority of those attending the afn’s Special Assembly in 1971 and, except for asna, the afn’s leadership certainly supported the settlement. Berger’s principal fear was that the settlement would lead to the alienation of Alaska Natives from their land, and impoverishment. This was directly tied to the capacity to sell shares in the Alaska Native corporations and for the corporations to alienate their lands after 1991. He saw this as leading to a gradual loss of the Alaska Native land base: “I do not wish to suggest that, if worst comes to worst, the land will be lost on the morning of January 1, 1992. But a process of retreat 182 Alastair Campbell will begin as Native-owned land passes from the Native sector to the non-Native. No institutional arrangements have been made to check this inevitable process, which is implicit in ancsa.”44 Separated from their lands and without the possibility of living a subsistence-based way of life, Alaska Natives would drift to the cities, where “The presence in urban surroundings of an embittered Native population would make impossible the achievement of a partnership between Natives and non-Natives that is still possible in Alaska.”45 Essentially Berger did not see the share-based, profit-making corporation as an appropriate institutional model for maintaining a distinct Native cultural identity and ensuring the continuity of a traditional lifestyle. Tribal government, as per the Indian Reorganization Act, and as earlier proposed by asna, was the model to which he turned. One finds curiously little discussion of Berger in the Alaska literature.46 Donald Mitchell, a former vice-president and general counsel to the afn, dismissed Berger’s report as “blithe” and “romanticized stereotyping.”47 While Berger remarked that the Alaska Native corporations had provided neither significant employment nor dividend payments, Mitchell saw the demands of shareholders for dividend dis- tributions as sometimes threatening the capital of the corporations. In Mitchell’s view, the traditional lifestyle had been subverted by a demand for consumer goods, which that lifestyle itself could not sat- isfy. Mitchell thus posed three questions which are not alien to Ber- ger’s inquiry, but which were formulated from a different perspective: What is the future of Alaska Native villages? If villages have a future, what must be done to make that future possible? If villages have no future, what should be done?48 Amendments to ancsa were signed into law in 1988 following further extensive debate and negotiation in Congress and major lobbying efforts by Alaska Native organizations, the latter sometimes representing opposed points of view. These have been termed the “1991 Amendments” since (in part) they dealt with issues that would have arisen at the end of 1991, under the original settlement, if it had not been amended. The amendments provided protections for Alaska Native Lands from involuntary loss, extended the tax exemptions over undeveloped and unleased lands, restricted indefinitely the alienation of corporate shares unless a settlement corporation itself decided to allow share sales, and authorized the issuance of shares to Natives born after 18 December 1971 (the “after-borns”). Since enactment of the “1991 Amendments,” five corporations have Alaska and Canadian Land Claim Settlements 183 voted to grant new shares to the after-borns. These are the Arctic Slope Regional Corporation, Ahtna Incorporated, Doyon Limited, nana Regional Corporation, and Sealaska Corporation.49 The issuance of shares to the after-borns, and the inheritance of shares, has resulted in many Alaska Natives holding more or less than a hundred shares of stock.50 A potentially more serious problem, as one review notes, is posed by those corporations that have not issued shares to the after-borns: “This disenfranchisement of the post-1971 generation has created an enormous divide within the Native community and a sense of alienation among those who are excluded. With the Alaska Native population growing steadily younger (the majority is now under twenty years old), the demographic group that holds the future in its hands has no direct stake in some of our most important institutions.”51 With regard to the option to sell shares, shareholders of the Cook Inlet Region, Inc. voted against the sale of shares, both on the open market and to the corporation itself, in 1998.52 The other regional corporations have not voted on such options. In addition, the Alaska Land Transfer Acceleration Act was passed in 2004 in an attempt to resolve land status issues that had arisen under the Alaska Statehood Act, ancsa, and other legislation.53 James D. Linxwiler, who has provided legal advice to Alaska Native regional and village corporations as well as to petrochemical and mining companies, comments that these amendments were “more in the nature of adjustments than significant corrections.” He adds: “By any measure, ancsa’s business success is overwhelming. It cannot seriously be contested that ancsa has succeeded when viewed in light of the following: revenues of nearly $5 billion, employment of 12,000 persons statewide and 3,000 Natives, distributing dividends of nearly $120 million, and constituting seven of the top 10 Alaska-owned corporations.”54 The institutional basis of the settlement – profit-making share- based corporations – has not changed. However, the Native corporations are not the only vehicle for the aspirations of Alaska Natives. Especially notable was the 1972 establishment of the North Slope Borough by eight communities in northern Alaska, corresponding to the Arctic Slope region. As noted, the asna delegates voted against ancsa in 1971, because of the small percentage of land and money they would receive, and in consideration of the fact that that $500 million of the settlement moneys were to be paid from royalties on oil leases primarily from the Prudhoe Bay field in the Arctic Slope 184 Alastair Campbell region. The decision to form a borough was taken to achieve “the maximum amount of self-determination for the people.”55 More specifically, the borough would provide the opportunity to zone, plan, and tax (particularly the Prudhoe Bay oil field), and to secure state and federal transfer funds. As might be expected, the British Petroleum, Atlantic Richfield, Humble, and Mobil oil companies at first opposed the formation of the borough and, failing in this regard, then lobbied the state government to restrict the borough’s taxing powers. Eventually a compromise was worked out between the oil industry and the borough relating to taxes and other matters.56 The North Slope Borough has promoted the Iñupiat language and culture, including subsistence rights and, in addition to planning, zoning and taxation powers, exercises responsibilities in such areas as community services, health, education, and wildlife management. Its current operating budget is $379 million.57 Similar steps have been taken in the adjoining nana Region, where eleven Iñupiat communities established the Northwest Arctic Borough in 1986. The role of these boroughs as vehicles of Native political expression is shown by the part they have played in struggles with the governor of Alaska over subsistence rights and even, in 1992, raising the possibility of secession from the state of Alaska.58 The question of tribal governments in Alaska was not settled by the enactment of ancsa. The 1934 Indian Reorganization Act was amended in 1936 to make it applicable to Alaska, but in many communities there was little interest in the Indian Reorganization Act and governments established under it. Interest was awakened in the 1980s by concerns about the possible loss of lands after 1991, and although amendments to ancsa dealt with concerns regarding the alienation of corporate shares and lands, the tribal government movement has continued. Since 1993, the annual list of “Indian Entities Recognized and Eligible To Receive Services From the Bureau of Indian Affairs” has included Alaska tribal governments, and these run schools in some villages and operate programs such as welfare assistance and home improvement. Tribal governments, however, cannot exercise the same powers as tribal governments in the Lower 48 states. Thus the Supreme Court of the United States struck down an attempt of the Neets’aii Gwich’in village of Venetie Tribal Government to collect taxes from a state- funded school contractor: “In this case, we must decide whether approximately 1.8 million acres of land in northern Alaska, owned in fee simple by the Native Village of Venetie Tribal Government pursuant Alaska and Canadian Land Claim Settlements 185 to the Alaska Native Claims Settlement Act … is ‘Indian country.’ We conclude that it is not.”59

canada

As in Alaska, the land claims settlement process in Canada has been spurred by conflicts between Aboriginal land use and major resource developments. There has been, however, no massive land freeze in Canada at all comparable to that which was applied in Alaska. As well, in Canada the use of the courts has been of critical importance in leading governments to negotiate land claims agreements. In con- trast to Alaska, Canadian land claims settlements have not been arrived at through a legislatively driven process, but by direct negotiation between government and the Aboriginal parties. These negotiations have occurred under the umbrella of the federal comprehensive land claims policy. In 1969, in the context of the White Paper earlier referred to, Prime Minister Trudeau stated: “It’s inconceivable, I think, that in a given society one section of the society have a treaty with the other section of the society. We must be all equal under the laws and we must not sign treaties amongst ourselves.”60 In Cabinet, Trudeau was to state that the White Paper had been misunderstood.61 However that may be, in 1973 his government adopted a policy for the negotiation of land claims agreements. In 1983, through a constitutional amendment that Trudeau himself shepherded, as prime minister, these agreements, “for greater certainty,” were deemed to be treaties under the Constitution Act, 1982. Since a federal policy to negotiate the settlement of land claims, based on Aboriginal rights or title, was adopted in 1973, twenty-six land claims agreements have been finalized with Aboriginal peoples in northern Canada and British Columbia.62 Similar negotiations are currently underway in Labrador, Quebec, Ontario, Manitoba, Nunavut, the Northwest Territories, Yukon, and British Columbia. Following their negotiation, Canadian land claims agreements are subject to ratification by the Aboriginal party, by referendum. Ratifi- cation by government follows ministerial or prime ministerial signature and legislation on the part of the federal Parliament. Agreements within provinces have also required provincial ratification and implementing legislation and (in some cases) the territorial legislative assembly has similarly acted. 186 Alastair Campbell

The Gwich’in Comprehensive Land Claim Agreement provides an example of how federal legislative concurrence has been provided for: “Canada shall recommend to Parliament that this agreement be approved, given effect and declared valid by legislation.”63 Given that the Canadian Parliament follows the Westminster system, that opposition MPs are governed by party discipline, and that land claims agreements are normally insufficiently controversial at the national level to arouse strong opposition, there is usually little debate and no amendment to the ratifying legislation as it proceeds. For example, the Nunavut Land Claims Agreement Act, ratifying Canada’s largest single land claims agreement – together with its companion Nunavut Act – received first reading in Parliament on 28 May 1993. The legislative process was completed when Royal Assent was provided on 10 June, only fourteen days later. In the Western Arctic, the Inuvialuit Final Agreement was signed on 5 June 1984, and Royal Assent to the ratification legislation was received on 28 June of the same year. Fur- ther, although these agreements covered lands in the nwt and Yukon, and they were signed by representatives of the territorial governments, neither the nlca nor the Inuvialuit agreement required territorial legislation for ratification purposes. The Canadian settlement process has been more slow moving in the negotiating stage, more consensual, less chaotic, and conducted far less in public, than that in Alaska.64 Legislative ratification generally has been of a pro forma character. The 1998 Nisga’a Final Agreement in British Columbia is the main exception to this generalization. In British Columbia, Aboriginal land claims have long been contentious, being opposed by unyielding provincial governments since 1871 and through most of the twentieth century.65 In the case of the Nisga’a, the claim was accepted by the federal government in 1973, but negotiations with the province did not begin until 1990, ultimately resulting in the completion of negotiations in July 1998. The Nisga’a Final Agreement Act was thus introduced into the British Columbia legislature in November 1998 and was passed in April 1999 following a government motion of closure. At the federal level, the Nisga’a Final Agreement Act was introduced into the House of Commons in October 1999 and passed without amendment in December of the same year, “several hundred amendments proposed by members of the then Reform Party having been defeated at report stage.”66 The bill was reported back by the Senate without amendment, to finally receive Royal Assent on 13 April 2000. Alaska and Canadian Land Claim Settlements 187

This represents a politically charged legislative ratification process totalling sixteen months, from the time the provincial legislation was introduced in the Legislative Assembly until the federal legislation received Royal Assent. Like the Alaska settlement, Canadian land claims agreements include cash compensation and land ownership provisions, but profit-making share-based corporations do not provide the institutional foundation. The principal Aboriginal legal entities provided for in Canadian agreements are non-profit corporations, trusts, or Aborigi- nal governments. The most extensive of Canada’s modern treaties is the nlca, completed in 1993. This provided for Nunavut Inuit to own approximately 18 per cent of the surface area of Nunavut and almost 2 per cent of the territorial subsurface. These settlement lands, where unimproved or outside the boundaries of a municipality, are non-taxable and alien- able only to the Crown or another Inuit organization.67 A cash settlement of approximately $1.178 billion was paid over eighteen years to the Nunavut Trust.68 The nlca also included requirements for industry to negotiate impact benefit agreements for mining and other ventures, Inuit hunting and fishing rights throughout the settlement region, and other provisions of an economic, employment-related, and social nature. In addition, Inuit-government co-management institutions were established with responsibilities in relation to land use planning, approval of resource development proposals, water use permitting, and wildlife management. Other land claims agreements in Canada have analogous provisions, but the nlca is unique in providing for the creation of a new territory – Nunavut – within Canada. Nunavut, however, is a public government, meaning that it represents, services, and is accountable to the entire population of the territory. It is not an Aboriginal government, as normally understood. For this reason, and in accordance with article 4 of the nlca, the Nunavut Act was enacted as a statute distinct from the Nunavut Land Claims Agreement Act. The relationship of land claims agreements in Canada to Aborigi- nal self-government aspirations has been an evolving one. Self-government of Aboriginal peoples came to the fore in the constitutional patriation process, in the post-patriation constitutional discussions of Aboriginal rights from 1982 to 1987, and in the 1992 Charlottetown Accord proposal. Explicit constitutional recognition of a right of self- government was not attained through these processes, and groups 188 Alastair Campbell involved in land claims negotiations therefore sought self-government recognition through the alternative of land claims negotiations. The jbnqa was the first Canadian comprehensive land claims agreement, and it established a governance regime that differed substantially from that provided for through the provisions of the Indian Act. Provisions for community-level government were implemented in 1984 by the Cree-Naskapi (of Quebec) Act.69 This replaced the Indian Act for the Crees and Naskapis, and incorporated the Cree and Naskapi bands.70 Governmental institutions for the northern Quebec Inuit, such as the Kativik Regional Government and the Kativik School Board, were also provided for in the jbnqa, but implemented through provincial legislation. Concerned at the slow pace of land claims negotiations, including the rejection of a proposed agreement by the Council for Yukon Indians in 1984, the Canadian government revised its land claims policy in 1986. In some areas, such as the application of claims settlements to marine areas, the establishment of co-management boards, and resource–revenue-sharing arrangements, adjustments were made in directions sought by Aboriginal claimant groups. Moreover, since 1982 (implicitly) or 1983 (explicitly), the rights provided through land claims agreements have been constitutionally recognized. In theory then, constitutionally protected self-government arrangements could be provided for through land claims agreements. But in 1986, when revisions to the land claims policy were being made, Aboriginal self-government was still under discussion in the national constitutional forum. Thus, mainly at the insistence of the Federal-Provincial Relations Office within government, the revised land claims policy, although speaking positively of self-government in general terms, concluded: “Finally, as a matter of policy, most aspects of such [self-government] arrangements will not receive constitutional protection unless a constitutional amendment to this effect is in force.”71 As a result, the nwt Gwich’in land claims agreement dealt with self- government in one schematic chapter, with an appendix setting out “principles, process, schedule and agenda items,” for negotiations to occur after the land claims agreement had been concluded.72 Further, “Self-government rights provided for in self-government agreements and any legislation enacted to implement such agreements shall not be construed, on the basis of this agreement, to be aboriginal or treaty rights within the meaning of section 35 of the Constitution Act, Alaska and Canadian Land Claim Settlements 189

1982.”73 Almost identical provisions were contained in the 1993 Sahtu agreement. In a 1995 policy statement, the federal government revised its views on how self-government might be exercised, including through land claims agreements. Most significantly: “The Government of Canada recognizes the inherent right of self-government as an existing Abo- riginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties.”74 On this basis, the policy affirmed that:

Self-government rights could be protected under section 35: • in new treaties; • as part of comprehensive land claim agreements; or • as additions to existing treaties.75

The policy further stated that the federal government would not reopen existing land claim agreements “to implement the inherent right of self-government,” but would negotiate self-government agreements with those Aboriginal peoples who had settled their land claims but did not have self-government agreements. This type of negotiation was an obligation that was provided for in some of these agreements in any case and, as noted, the Gwich’in and Sahtu agreements explicitly provided that self-government agreements would not confer or recognize rights protected under section 35 of the Constitution Act, 1982. From an Aboriginal perspective, the 1995 policy may not have made an advance in these regards, although (in apparent ambiguity) it also stated that: “The federal government would be prepared to explore issues related to the constitutional protection of aspects of the self-government arrangements set out in … the Cree-Naskapi (of Quebec) Act, and the Yukon First Nations Self-Government Act.76 The Nisga’a Final Agreement, signed in April 1999, was the first land claim agreement to provide recognition to extensive self- government provisions falling under section 35 of the Constitution Act, 1982. It stated clearly: “The Nisga’a Nation has the right to self-government, and the authority to make laws, as set out in this Agreement.”77 Probably the most contentious issue between the Canadian government and Aboriginal peoples since the inception of a comprehensive claims policy has been the question of extinguishment. As noted, ancsa extinguished Aboriginal title and claims, including hunting 190 Alastair Campbell and fishing rights, while establishing proprietary rights to land through corporate vehicles. The Canadian government’s 1973 land claims policy was clear in requiring that “Following negotiations of land claims, whether or not there are written agreements, the Gov- ernment should set forth its undertakings … followed by a clear and unequivocal legislative extinguishment of the Indian title.”78 This directive was followed with the jbnqa. The text of the agreement provided in its “Principal Provisions” that: “In consideration of the rights and benefits herein set forth in favour of the James Bay Crees and the Inuit of Quebec, the James Bay Crees and the Inuit of Quebec hereby cede, release, surrender and convey all their Native claims, rights, titles and interests, whatever they may be, in and to land in the territory and in Quebec, and Quebec and Canada accept such surrender.”79 The language is not dissimilar from that found in the numbered treaties signed in the late nineteenth and early twentieth centuries, although “convey” replaces “yield up” and acceptance of the cession and surrender, by the Crown, is made explicit. But in accordance with the 1973 Cabinet direction, the surrender and conveyance of land to the Crown, as stated in the agreement, is further expressed in the settlement legislation:

All native claims, rights, title and interests, whatever they may be, in and to the Territory, of all Indians and all Inuit, wherever they may be, are hereby extinguished, but nothing in this Act preju- dices the rights of such persons as Canadian citizens and they shall continue to be entitled to all of the rights and benefits of all other citizens as well as to those resulting from the Indian Act, where applicable, and from other legislation applicable to them from time to time.80

The 1986 federal Comprehensive Land Claims Policy stated that: “Alternatives to extinguishment may be considered provided that certainty in lands and resources is established.”81 In this light, “acceptable options” were declared to be:

1 The cession and surrender of aboriginal title throughout the settlement area in return for the grant to the beneficiaries of defined rights in specified or reserved areas and other defined rights applicable to the entire settlement area; or Alaska and Canadian Land Claim Settlements 191

2 The cession and surrender of aboriginal title in non-reserved areas, while: • allowing any aboriginal title that exists to continue in specified or reserved areas; • granting to beneficiaries defined rights applicable to the entire settlement area.82

Following the 1986 policy statement, to provide the certainty desired, the federal government dropped the practice of explicit legislative extinguishment, relying instead on the wording of the agreements, which themselves are ratified legislatively. The nlca and the Gwich’in and Sahtu agreements are examples of the first alternative, as presented in the 1986 policy, cession provisions being provided for in the treaties, but not repeated in the ratifying legislation. The Yukon agreements and the Labrador Inuit agreement are examples of the second option. A third option was developed by the Nisga’a. Essentially, the Nisga’a agreement states that the agreement “exhaustively sets out” Nisga’a rights under section 35 of the Constitution Act, including Aboriginal title, “as modified by this agreement.”83 Similar formulations were adopted in the Tsawwassen, Maa-Nulth, Eeyou Marine Region, and Nunavik Inuit agreements. The wording in the Tlicho Land Claims and Self-Government Agreement differs in certain respects but is of the same general type. Thus the substitution of “certainty” for “extinguishment” and the definition and “modification” of Aboriginal rights by treaty, rather than by taking a cession or surrender of Abo- riginal title and rights, appears to have been adopted in recent land claims agreements in Canada.

conclusion

The Alaska Native Claims Settlement Act was the first major settlement to deal with Aboriginal title in the second half of the twentieth century. It antedated and served as a marker for the Canadian comprehensive land claims settlements, which began in 1975 and continue to be negotiated today. ancsa’s corporate model, and twenty-year horizon for free trading in Native corporate shares and land ownership, carried the marks of the United States’ 1950s termination policy. Amendments to ancsa 192 Alastair Campbell have removed the most obvious risks of alienation of corporate and land ownership, but questions remain as to the suitability of share- based corporations as holders of land and monetary settlement assets. The Canadian settlements show a regional diversity not present in the Alaska settlement and advance the use of trusts, non-profit corporations, and Aboriginal governments to hold or administer settlement land, monetary assets, and other responsibilities. In this regard, the Canadian settlements are more comprehensive and more collective than the Alaska. It remains to be seen whether the Canadian settlements will, in the long run, provide better conditions of life for the Aboriginal people affected than the Alaska. At one level, the gulf between individual Alaska Natives and Alaska Native corporate management, for which one finds clear evidence in the writings of various authors, has not been replicated in Canada to the same extent.84 Thus Barry Zellen, who has studied the Alaska and Inuvialuit settlements, writes: “I have found, over time, that what first appeared to be an institutional bal- ance inherent in the land claim model favouring modern corporations over traditional cultural institutions, eventually became better balanced, blending new and old, as a new generation came to power, and as hunters and trappers became more sophisticated politically.”85 In the Nunavut Economic Development Strategy, wealth creation (economic growth) is identified as depending on four key forms of capital: physical, natural, human, and organizational.86 Only some aspects of these factors can be dealt with through land claims settlements, but generally the Canadian settlements address a broader range of issues and come closer to providing a more conducive environment for a balanced economic growth than does the Alaska settlement. Much depends upon forces beyond local and regional control, namely the international economy and political shifts at the national level. Within this context, the willingness of government to take effective measures, either within the terms of land claims agreements or alongside them, is also of critical importance. In this regard, while the Alaska and Canadian settlements may fore- close some options, they do not mark the end point of an evolutionary process. Charles Wilkinson, who sees ancsa as being a half way to termination settlement, nonetheless writes, “That is the surprising achievement of Alaska Natives: They have held on to the grand expans- es of ancestral land they obtained through ancsa.”87 Zellen adds, “What Alaska and Canadian Land Claim Settlements 193 started out as a tool of cultural and economic assimilation into the mainstream of society soon evolved to become a tool for preserving traditional cultural values, helping to moderate the very assimilating forces that had given land claims their original purpose.”88 In Canada, retaining settlement lands has not been an issue, but there have been serious problems in implementing land claims agreements, from the signing of the jbnqa to today.89 The formation of the Land Claims Agreements Coalition, comprising all signatories of land claims agreements in an attempt to reorient government policy, is one indication of this. Time will demonstrate the extent to which the Canadian settlements have been successful in providing for a secure future for Aboriginal peoples. Thomas Berger concluded his 1985 report on the Alaska settlement by remarking: “Here in these villages the encounter that began in 1492 continues. The encounter will not end in Alaska, but the choic- es that Americans confront there may, in the long sweep of history, provide a unique opportunity to do justice to the Native peoples. It is an opportunity they must not reject.”90 Indeed, the same encounter continues in the Aboriginal communities of Canada and, like Ameri- cans, Canadians face an opportunity to do justice to the Aboriginal peoples – an opportunity they must not reject. 194 David Johnston

In Conclusion

terry fenge and jim aldridge

As this book clearly shows, the Royal Proclamation of 1763 has had long-lasting implications for both Aboriginal peoples in Canada and Canadians generally. This instrument outlined the basic rules to govern the Crown’s behaviour in negotiating treaties with Aboriginal peoples. It continues to reverberate and inform public policy and law in the twenty-first century. Each chapter of the book can be evaluated on its individual merits, but each also has a place as well in the broader narrative about treaties – historic and modern – entered into by the Crown and Aboriginal peoples since 1763. While of central importance in North America’s history of treaty making, the Royal Proclamation did not initiate treaty negotiations. Those who came from Europe and elsewhere from the sixteenth century onwards to what they inaptly named the “new world” sought from the beginning to make agreements, both oral and written, with Aboriginal peoples. Aboriginal peoples had extensive experience in making agreements among themselves before the Spanish, French, and English arrived. Similarly, European countries had been concluding trade, military, and other agreements for many years. Both sides understood the need to define their relations, and both drew upon their pre-existing experiences when entering into agreements. Diplomacy between Aboriginal peoples and newcomers was intri- cate, and the protocols and procedures that governed negotiation, including practices such as gift giving and ritual smoking of the peace pipe, largely reflected the way that Aboriginal peoples did things. Newcomers and the continent’s original peoples assumed mutual obligations and duties toward each other that enabled them to live side by side. Treaties established and defined partnerships. In Conclusion 195

The Royal Proclamation of 1763 was a seminal event in the evolution of treaty making. The chapters in this book make it clear that treaties in what became Ontario as well as those across the Prairies and into the Mackenzie Valley in the nineteenth and twentieth centuries were supposed to, but sometimes did not, reflect the spirit, intent, and letter of the Royal Proclamation. As a result, and also because written and oral versions of treaties sometimes differ quite substantially, debate continues as to the terms of agreements concluded from the date upon which the Royal Proclamation was issued until the early 1920s when treaty making was abandoned (leaving the territorial North and most of British Columbia, Quebec, Labrador and elsewhere without such agreements). The resumption of treaty making in the 1970s by the Government of Canada was very much the result of the Calder decision of the Supreme Court of Canada in respect of the land rights of the Nisga’a Nation in British Columbia. Since then, the Supreme Court has issued several landmark judgments, most recently the 2014 Tsilhqot’in decision, on Aboriginal and treaty rights. Most of these decisions have been generally favourable to Aboriginal peoples. Modern treaties, as comprehensive land claims agreements are now called, apply to approximately 45 per cent of the country. More are currently under negotiation. The Supreme Court has identified “reconciliation” as the key principle to guide the relationship between Aboriginal peoples and the Crown, and insists that the Crown must act “honourably” in all of its dealings with Aboriginal peoples. As this book shows, treaties lie at the core of that relationship. Negotiating and implementing these agreements is reconciliation in action. Since 1982, rights set out in treaties have been recognized and affirmed in Canada’s Constitution. In 1995, the Government of Cana- da accepted the inherent right of Aboriginal peoples to govern themselves and issued a policy to guide negotiations to give effect to that right. The Royal Commission on Aboriginal Peoples – Canada’s most extensive inquiry into Aboriginal issues – reported exhaustively in 1996. And, after much comment and pressure from Aboriginal peoples, the Government of Canada in late 2010 issued a statement supporting the 2007 United Nations Declaration on the Rights of Indige- nous Peoples. Notwithstanding these various initiatives, processes, and commitments, which are effectively changing the political, legal, and constitutional face of the country, the Parliament of Canada has neither 196 Terry Fenge and Jim Aldridge sponsored nor carried out a full debate on the role, rights, and place of Aboriginal peoples in Canada. Certainly Parliament has debated bills and resolutions dealing with Aboriginal issues, but, as the seat of our democracy, it has yet to provide the moral or political leadership needed to explain and build upon the relationships defined in treaties, both historic and modern. Aboriginal policy in the last forty or more years seems dominated not by reasoned and reasonable public and political debate led by Parliament, but by responses, frequently hesitant and sometimes grudging, by the government to judgments of the Supreme Court of Canada. Be that as it may, much that is good has come of treaties, particularly those concluded since 1973. As a result of modern treaties, Inuit and First Nations in northern Canada now indisputably own more land than any private interest worldwide. While the provisions of modern treaties differ, Aboriginal parties use all of them to support cultural, social, and economic initiatives, to exercise self-government, and to strive to protect the environment upon which their ways of life continue to depend. Moreover, what Canada and Aboriginal peoples are achieving through treaties is of significant interest to several other countries. Canadian jurisprudence was well referenced in the 1992 Australian Mabo judgment, through which the doctrine of terra nullius was abandoned, opening the way for Australian Aboriginal peoples to recover land rights ignored for decades. The 2007 Finnmark Act in Norway, which provides Sami with a role in managing the “Finnmark Estate,” is inspired by cooperative Crown/Aboriginal institutions defined in Canadian modern treaties to manage land and resource use. Treaties are not only important for what they say and do or for their unique legal status – they are for all intents and purposes permanent components of our political landscape. Governments come and go, legislation is frequently amended or repealed, but treaties remain. This is why it is both surprising as well as disappointing that most non-Aboriginal Canadians know little if anything about treaties, and fewer still give of their time and energy to press the federal, provincial, and territorial governments to remain true to these agreements. By and large, treaties are “out of sight, out of mind.” A related criticism might be levelled at much of the media. For example, the media pigeonholed Canadian rock-and-roll star Neil Young’s 2013–14 cross-Canada odyssey as a protest against increased development of Alberta’s tar sands, but that is not the way the initia- In Conclusion 197 tive was billed by Neil Young himself and the Athabaskan peoples with whom he cooperated. To them, it was a tour to “Honour the Treaties,” an angle to the story all but ignored by the media. Who in our national newspapers writes regularly about the experience and practice of Aboriginal self-government and implementation of treaties in the northern and rural areas of our country? Honouring and implementing treaties lies outside mainstream electoral politics. With the exception of Aboriginal people themselves, aided occasionally by certain academics from the social sciences and some public interest groups, there is virtually no political constituency demanding that the Government of Canada or the provincial and territorial governments remain true to and fully and generously implement the treaties. The result is that the Canadian government is able to treat implementation of treaties as a series of technical matters to be addressed all in good time by civil servants through existing policy, program, and budgetary initiatives. When was the last time that the Canadian prime minister delivered a speech about the national importance of treaties? Several chapters in this book report the conclusion of Aboriginal peoples that the Government of Canada minimizes its treaty obligations and that treaties are not being fully or appropriately implemented by the government. As a result, Aboriginal signatories believe they are not deriving the full and expected benefit from them. Treaty disputes appear to be growing in number and severity, a fact that should concern all Canadians, for it means that more and more disputes will go to court with uncertain results, potentially damaging the positive relationship between the Crown and Aboriginal peoples that treaties were meant to secure. Further, this situation encourages many Aboriginal people, particularly young people, to embrace the politics of protest exemplified by the Idle No More movement, which took to the streets in 2012 and 2013. Who knows where such protests will end up? When pondering this question we might usefully remember the 1990 Oka “crisis,” an ugly standoff between Aboriginal people and the Canadian army that erupted over a land ownership dispute. The Government of Canada should do everything in its power to live up to and fully implement the treaties; indeed, this should be the first call upon its intellectual, political, and financial resources. To do this, the Government of Canada must rethink its budgetary processes, institutional and decision-making systems, and policy frameworks. This is the basic message of the Land Claims Agreements Coalition, 198 Terry Fenge and Jim Aldridge which brings together all Canadian Aboriginal peoples with modern treaties. Our national story is of mass immigration and settlement, land clear- ing and agriculture, technological innovation, urbanization, and indus- trial and economic development. From small colonial beginnings, Canada has become a successful modern federal state firmly wedded to principles of liberal democracy and human rights, open to immigration from the world, enjoying one of the world’s highest standards of living. Making treaties with Aboriginal peoples is a central theme of that transformation – the story of Canada. Abiding by the treaties must also be a part of that story. Anyone who has visited Indian reserves, especially in the northern portions of many provinces, knows that the standard of living of Abo- riginal people is woefully and embarrassingly short of the national norm. We do not mean to suggest that implementing treaties will instantly solve these disparities, but implementation is part of the approach that is needed. Implementing treaties is not somehow an excursion to the past; rather, it is an investment in the future. All of us mark and celebrate anniversaries and, in so doing, remind ourselves of important events in our lives: the birth of children, high school and university graduations, the passing of elders. The 250th anniversary of the Royal Proclamation of 1763, the event which prompted the symposium reported by the chapters in this book, should remind all Canadians of the compacts, contracts, and covenants – historic and modern treaties – that we as a country have concluded with Aboriginal peoples. By remaining true to these agreements we remain true to ourselves, to our history and to our future. This is what Governor General Adrienne Clarkson envisaged when she said that “we are all treaty people.” Introduction 199

appendices This page intentionally left blank appendix i

The Royal Proclamation of 7 October 1763

1763, October 7.

BY THE KING.

A PROCLAMATION

George R. ‘Whereas We have taken into Our Royal Consideration the extensive and valuable Acquisitions in America, secured to Our Crown by the late Definitive Treaty of Peace, concluded at Paris the Tenth Day of February last, and being desirous, that all Our loving Subjects, as well of Our Kingdoms as of Our Colonies in America, may avail themselves, with all convenient Speed, of the great Benefits and Ad- vantages which must accrue therefrom to their Commerce, Manufac- tures, and Navigation; We have thought fit, with the Advice of Our Privy Council, to issue this Our Royal Proclamation, hereby to publish and declare to all Our loving Subjects, that We have, with the Advice of Our said Privy Council, granted Our Letters Patent under Our Great Seal of Great Britain, to erect within the Countries and Islands ceded and confirmed to Us by the said Treaty, Four distinct and separate Governments, stiled and called by the Names of Quebec, East Florida, West Florida, and Grenada, and limited and bounded as follows; viz. First. The Government of Quebec, bounded on the Labrador Coast by the River St. John, and from thence by a Line drawn from the Head of that River through the Lake St. John to the South End of the Lake nigh Pissin; from whence the said Line crossing the River St. Lawrence and the Lake Champlain in Forty five Degrees of North Latitude, passes along the High Lands which divide the Rivers that empty them- 202 Appendix I selves into the said River St. Lawrence, from those which fall into the Sea; and also along the North Coast of the Baye des Chaleurs, and the Coast of the Gulph of St. Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River St. Lawrence by the West End of the Island of Antiocosti, terminates at the aforesaid River of St. John. Secondly. The Government of East Florida, bounded to the West- ward by the Gulph of Mexico, and the Apalachicola River; to the Northward, by a Line drawn from that Part of the said River where the Chatahouchee and Flint Rivers meet, to the Source of St. Mary‘s River, and by the Course of the said River to the Atlantick Ocean; and to the Eastward and Southward, by the Atlantick Ocean, and the Gulph of Florida, including all Islands within Six Leagues of the Sea Coast. Thirdly. The Government of West Florida, bounded to the South- ward by the Gulph of Mexico, including all Islands within Six Leagues of the Coast from the River Apalachicola to Lake Pentchartain; to the Westward, by the said Lake, the Lake Mauripas, and the River Missis- sippi; to the Northward, by a Line drawn due East from that Part of the River Mississippi which lies in Thirty one Degrees North Lati- tude, to the River Apalachicola or Chatahouchee; and to the Eastward by the said River. Fourthly. The Government of Grenada, comprehending the Island of that Name, together with the Grenadines, and the Islands of Dominico, St. Vincents and Tobago. And, to the End that the open and free Fishery of Our Subjects may be extended to and carried on upon the Coast of Labrador and the adjacent Islands, We have thought fit, with the Advice of Our said Privy Council, to put all that Coast, from the River St. John’s to Hud- sons Straights, together with the Islands of Anticosti and Madelaine, and all other smaller Islands lying upon the said Coast, under the Care and Inspection of Our Governor of Newfoundland. We have also, with the Advice of Our Privy Council, thought fit to annex the Islands of St. John’s, and Cape Breton or Isle Royale, with the lesser Islands adjacent thereto, to Our Government of Nova Scotia. We have also, with the Advice of Our Privy Council aforesaid, annexed to Our Province of Georgia all the Lands lying between the Rivers Attamaha and St. Mary’s. And whereas it will greatly contribute to the speedy settling Our said new Governments, that Our loving Subjects should be informed of Our Paternal Care for the Security of the Liberties and Properties The Royal Proclamation of 1763 203 of those who are and shall become Inhabitants thereof; We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under Our Great Seal of Great Britain, by which the said Governments are constituted, given express Power and Direction to Our Governors of Our said Colonies respectively, that so soon as the State and Circumstances of the said Colonies will admit thereof, they shall, with the Advice and Consent of the Mem- bers of Our Council, summon and call General Assemblies within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America, which are under Our immediate Government; and We have also given Power to the said Governors, with the Consent of Our said Councils, and the Representatives of the People, so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Publick Peace, Welfare, and Good Government of Our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and Restrictions as are used in other Colonies: And in the mean Time, and until such Assemblies can be called as aforesaid, all Persons inhabiting in, or resorting to Our said Colonies, may confide in Our Royal Protection for the Enjoyment of the Benefit of the Laws of Our Realm of England; for which Purpose, We have given Power under Our Great Seal to the Governors of Our said Colonies respectively, to erect and constitute, with the Advice of Our said Councils respectively, Courts of Judicature and Publick Justice, within Our said Colonies, for the hearing and determining all Causes, as well Crimi- nal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England, with Liberty to all Persons who may think themselves aggrieved by the Sentences of such Courts, in all Civil Cases, to appeal, under the usual Limitations and Restric- tions, to Us in Our Privy Council. We have also thought fit, with the Advice of Our Privy Council as aforesaid, to give unto the Governors and Councils of Our said Three New Colonies upon the Continent, full Power and Authority to settle and agree with the Inhabitants of Our said New Colonies, or with any other Persons who shall resort thereto, for such Lands, Tenements, and Hereditaments, as are now, or hereafter shall be in Our Power to dispose of, and them to grant to any such Person or Persons, upon such Terms, and under such moderate Quit-Rents, 204 Appendix I

Services, and Acknowledgements as have been appointed and settled in Our other Colonies, and under such other Conditions as shall appear to Us to be necessary and expedient for the Advantage of the Grantees, and the Improvement and Settlement of our said Colonies. And whereas We are desirous, upon all Occasions, to testify Our Royal Sense and Approbation of the Conduct and Bravery of the Offi- cers and Soldiers of Our Armies, and to reward the same, We do hereby command and impower Our Governors of Our said Three New Colonies, and all other Our Governors of Our several Provinces on the Continent of North America, to grant, without Fee or Reward, to such Reduced Officers as have served in North America during the late War, and to such Private Soldiers as have been or shall be disbanded in America, and are actually residing there, and shall personally apply for the same, the following Quantities of Lands, subject at the Expiration of Ten Years to the same Quit-Rents as other Lands are subject to in the Province within which they are granted, as also subject to the same Conditions of Cultivation and Improvement; viz. To every Person having the Rank of a Field Officer, Five thousand Acres. — To every Captain, Three thousand Acres. — To every Subal- tern or Staff Officer, Two thousand Acres. — To every Non-Commis- sion Officer, Two hundred Acres. — To every Private Man, Fifty Acres. We do likewise authorize and require the Governors and Com- manders in Chief of all Our said Colonies upon the Continent of North America, to grant the like Quantities of Land, and upon the same Conditions, to such Reduced Officers of Our Navy, of like Rank, as served on Board Our Ships of War in North America at the Times of the Reduction of Louisbourg and Quebec in the late War, and who shall personally apply to Our respective Governors for such Grants. And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Pro- tection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that no Gover- nor or Commander in Chief in any of Our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Com- The Royal Proclamation of 1763 205 missions; as also, that no Governor or Commander in Chief in any of Our other Colonies or Plantations in America, do presume, for the present, and until Our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantick Ocean from the West and North-West, or upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indi- ans, or any of them. And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under Our Sovereignty, Protection, and Dominion, for the Use of the said Indians, all the Lands and Ter- ritories not included within the Limits of Our said Three New Gov- ernments, or within the Limits of the Territory granted to the Hud- son’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West, as aforesaid; and We do hereby strictly forbid, on Pain of Our Displeasure, all Our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without Our especial Leave and Licence for that Purpose first obtained. And We do further strictly enjoin and require all Persons whatever, who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands, which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements. And whereas great Frauds and Abuses have been committed in the purchasing Lands of the Indians, to the great Prejudice of Our Inter- ests, and to the great Dissatisfaction of the said Indians; in order therefore to prevent such Irregularities for the future, and to the End that the Indians may be convinced of Our Justice, and determined Reso- lution to remove all reasonable Cause of Discontent, We do, with the Advice of Our Privy Council, strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those Parts of Our Colonies where We have thought proper to allow Settlement; but that if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, that same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of 206 Appendix I

Our Colonies respectively, within which they shall lie: and in case they shall lie within the Limits of any Proprietary Government, they shall be purchased only for the Use and in the Name of such Propri- etaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose: And We do, by the Advice of Our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever; provided that every Person, who may incline to trade with the said Indians, do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of Our Colonies respectively, where such Person shall reside; and also give Security to observe such Regulations as We shall at any Time think fit, by Ourselves or by Our Commis- saries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade; And We do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all Our Colonies respectively, as well Those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited, in Case the Person, to whom the same is granted, shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid. And We do further expressly enjoin and require all Officers whatever, as well Military as those employed in the Management and Direction of Indian Affairs within the Territories reserved as aforesaid for the Use of the said Indians, to seize and apprehend all Persons whatever, who, standing charged with Treasons, Misprisions of Trea- son, Murders, or other Felonies or Misdemeanours, shall fly from Jus- tice, and take Refuge in the said Territory, and to send them under a proper Guard to the Colony where the Crime was committed of which they stand accused, in order to take their Tryal for the same. Given at Our Court at St. James’s, the Seventh Day of October, One thousand seven hundred and sixty three, in the Third Year of Our Reign.

God Save the King

London: Printed by Mark Baskett, Printer to the King’s most Excel- lent Majesty; and by the Assigns of Robert Baskett. 1763. appendix ii

The 1913 Nishga Nation Petition to His Majesty’s Privy Council

1913 Petition

We are not opposed to the coming of the white people into our territory, provided this be carried out justly and in accordance with the British principles embodied in the Royal Proclamation. If therefore as we expect the aboriginal rights which we claim should be established by the decision of His Majesty’s Privy Council, we would be prepared to take a moderate and reasonable position. In that event, while claiming the right to decide for ourselves the terms upon which we would deal with our territory, we would be willing that all matters outstanding between the Province and ourselves should be finally adjusted by some equitable method to be agreed upon which should include representation of the Indian Tribes upon any Commission which might then be Appointed. The above statement was unanimously adopted at a meeting of the Nishga Nation or Tribe of Indians held at Kincolith on the 22nd day of January, 1913, and it was resolved that a copy of same be placed in the hands of each of the following: - The Secretary of State for the Colonies, the Prime Minister of Cana- da, the Minister of Indian Affairs, the Minister of Justice, Mr. J. M. Clark, K.C., Counsel for the Indian Rights Association of British Columbia, and the Chairman of the “Friends of the Indians of British Columbia.”

W.J. Lincoln. Chairman of Meeting. 208 Appendix II

————

PETITION TO HIS MAJESTY’S PRIVY COUNCIL.

Lodged on 21st May, 1913.

IN THE MATTER OF THE TERRITORY OF THE NISHGA NATION OR TRIBE OF INDIANS

To the King’s Most Excellent Majesty in Council.

The Humble Petition of the Nishga Nation or Tribe of Indians sheweth as follows :–

1. From time immemorial the said Nation or Tribe of Indians exclusively possessed, occupied and used and exercised sovereignty over that portion of the territory now forming the Province of British Colum- bia which is included within the following limits, that is to say :– Commencing at a stone situate on the south shore of Kinnamox or Quinamass Bay and marking the boundary line between the territory of the said Nishga Nation or Tribe and that of the Tsimpshean Nation or Tribe of Indians, running thence easterly along said boundary line to the height of land lying between the Naas River and the Skeena River, thence in a line following the height of land surrounding the valley of the Naas River and its tributaries to and including the height of land surrounding the north-west end of Mitseah or Meziadan Lake, thence in a straight line to the northerly end of Portland Canal, thence southerly along the international boundary to the centre line of the passage between Pearse Island and Wales Island, thence south- easterly along said centre line to the centre line of Portland Inlet, thence north-easterly along said centre line to the point at which the same is intersected by the centre line of Kinnamox or Quinamass Bay, thence in a straight line to the point of commencement.

2. Your Petitioners believe the fact to be that, when sovereignty over the territory included within the aforesaid limits (hereinafter referred to as “the said territory”) was assumed by Great Britain, such sovereignty was accepted by the said Nation or Tribe, and the right of the said Nation or Tribe to possess, occupy and use the said territory was recognised by Great Britain. 1913 Nishga Nation Petition 209

3. From time to time since assuming sovereignty over the said territory the Crown has by Proclamation and otherwise recognized the right of the said Nation or Tribe so to possess, occupy and use the said territory, and, in particular, by the Proclamation of His Majesty King George the Third issued on the 7th day of October, 1763, having the force and effect of a Statute of the Parliament of Great Britain, it was (amongst other things) enacted as follows:–

“And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protec- tion, should not be molested or disturbed in the possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure that no Governor of Commander in Chief in any of Our Colonies of Quebec, East Florida, or West Flori- da, do presume, upon any Pretence whatever, to great Warrants of Sur- vey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions; as also, that no Gov- ernor or Commander in Chief in any of Our other Colonies or Planta- tions in America, do presume, for the present, and until Our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantick Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them. “And We do further declare It to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under Our Sovereignty, Protec- tion, and Dominion, for the Use of the said Indians all the Lands and Territories not included within the Limits of Our said Three New Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid; and We do hereby strictly forbid, on Pain of Our Displeasure, all Our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without Our special Leave and License for that Purpose first obtained. 210 Appendix II

“And We do further strictly enjoin and require all Persons whatever, who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands, which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements. “And whereas great Frauds and Abuses have been committed in the purchasing Lands of the Indians, to the great Prejudice of Our Inter- ests, and to the great Dissatisfaction of the said Indians;

“In order therefore to prevent such Irregularities for the future, and to the End that the Indians may be convinced of Our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do with the Advice of Our Privy Council, strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those Parts of Our Colonies where We have thought proper to allow Settlement; but that if, at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be purchased only for Us, in our Name, at some Publick Meeting or Assembly of the said Indians to he held for that Purpose by the Governor or Com- mander in Chief of Our Colonies respectively, within which they shall lie; and in case they shall lie within the Limits of any Proprietary Gov- ernment they shall be purchased only for the Use and in the Name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose: And we do, by the Advice of Our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all Our Subjects whatever; provided that every Person who may incline to trade with the said Indians, do take out a Licence for carrying on such Trade from the Governor or Commander In Chief of any or Our Colonies respectively, where such Persons shall reside; and also give Security to observe such Regulations as We shall at any Time think fit, by Our- selves or by Our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade; and We do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all Our Colonies respectively, as well Those under Our immediate Government as Those under the Government and Direction or Proprietaries, to grant such Licences without Fee or Reward, taking 1913 Nishga Nation Petition 211 especial Care to insert therein a Condition that such License shall be void, and the Security forfeited, in case the Person, to whom the same is granted, shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid. “And we do further expressly enjoin and require all Officers whatever, as well Military as Those employed in the Management and Direction of Indian Affairs within the Territories reserved as aforesaid for the Use of the said Indians, to seize and apprehend all Persons whatever, who, standing charged with Treasons, Misprisions of Trea- son, Murders, or other Felonies or Misdemeanors, shall fly from Jus- tice, and take Refuge in the said Territory, and to send them under a proper Guard to the Colony where the Crime was committed of which they stand accused, in order to take their Tryal for the same.”

4. The said Nishga Nation or Tribe is one of the nations or Tribes of Indians mentioned in the said Proclamation as being under the protection of the Sovereign, and all members thereof are Your Majesty’s loyal subjects.

5. No part of the said territory has been ceded to or purchased by the Crown, and no part thereof has been purchased from the said Nation or Tribe by the Crown or by any person acting on behalf of the Crown, at a public meeting or assembly or otherwise, or by any other person whomsoever.

6. No part of the said territory is within the limits of the territory granted to the Hudson’s Bay Company.

7. By Statutes from time to time passed the Imperial Parliament, as Your Petitioners submit, recognized the territory now known as British Columbia as being part of the “Indian Territories,” as appears from the Statute 12 and 13 Vict. cap. 48, entitled “An Act to provide for the Administration of Justice in Vancouver’s Island,” and earlier Statutes therein recited, and from the Statute 21 and 22 Vict., Cap. 99, entitled “An Act to provide for the Government of British Columbia.”

8. From time to time the Government of the Province of British Columbia and various persons acting in the name of the Crown, under the assumed authority of the “Land Act” of British Columbia, 212 Appendix II have made surveys of, granted records of pre-emption of, sold and issued patents for, various parts of the said territory.

9. Together with this Petition are presented two blue prints taken from maps of the said territory prepared in the office of the Surveyor- General at Victoria in the said Province, showing the various transactions which on the 26th day of September, 1912, had been so entered into in respect of portions of the said territory as aforesaid.

10. Your Petitioners allege that the said transactions and all other similar transactions which have been entered into in respect of any part of the said territory have been so entered into in violation of the provisions of the said Proclamation of King George Third and without competent authority.

11. From time to time Your Petitioners have delivered to surveyors of the said Government entering the said territory for the purpose of surveying portions thereof, and to persons entering the said territory for the purpose of pre-empting or purchasing portions thereof under the assumed authority of the “Land Act,” written notices of protest, of which the following is one: –

“Whereas, we, the Indian people of the Aiyansh Valley, Naas River, British Columbia, being the lawful and original inhabitants and possessors of all the lands contained therein from time immemorial; and being assured in our possession of the same by the Proclamation of His Majesty King George III., under date of October 7th, 1763, which Proclamation we hold as our Charter of Rights under the British Crown;

“And whereas, it is provided in the said Proclamation that no private person do presume to make any purchase from us of any lands so reserved to us, until we have ceded the same to the representatives of the Crown in public meeting between us and them;

“And whereas, up to the present time our lands have not been ceded by us to the Crown, nor in any way alienated from us by any agreement or settlement between the representatives of the Crown and ourselves; 1913 Nishga Nation Petition 213

“And whereas, our case is now before the Privy Council in England and we are expecting a settlement of the difficulty at present existing between ourselves and the Government of this Province at an early date;

“We do therefore, standing well within our constitutional rights, forbid you to stake off land in this valley, and do hereby protest against your proceeding further into our country with that end in view – until such time as a satisfactory settlement be made between the representatives of the Crown and ourselves.

“Issued by the members of the Indian Land Committee elected by the Indians of the Upper Naas.”

12. On the 3rd day of March, 1911, delegates representing the said Nishga Nation or Tribe waited upon the Government of British Columbia, asserted the title of the said Nation or Tribe in respect of the said territory, and protested against the refusal of that Govern- ment to recognize such title.

13. Notwithstanding the facts stated in the last preceding two paragraphs hereof the Government of British Columbia and the various persons to whom reference has above been made, have persisted in the course set forth in paragraph 8 hereof.

14. Your Petitioners are aware of the provisions of the agreement made in the year 1871 and set out in Article 13 of the “Terms of Union,” and they are also aware of the provisions of an agreement made between a Special Commissioner of the Government of Cana- da and the Premier of British Columbia on the 24th day of Septem- ber, 1912, relating to the matter of the so-called reserves, and approved by the Government of Canada on the 27th day of November, 1912, subject to a certain modification mentioned in the Order in Council made on that day. Your Petitioners humbly submit that nothing contained in either of the said two agreements does or can take away any of the rights which they claim.

15. In view of all that has been hereinbefore stated Your petitioners, claiming to hold a tribal title to the whole of the said territory both 214 Appendix II by aboriginal right and under the said Proclamation, and having no other recourse for securing justice, humbly place this Petition before Your Majesty as the source and fountain of all justice, having supreme authority over all persons and matters within Your Majesty’s dominions, and possessing and exercising upon and with the advice of Your Majesty’s Privy Council original judicial jurisdiction.

Your Petitioners most humbly pray that Your Majesty in Council may be pleased to take into Your Most Gracious Consideration the matters hereinbefore set forth, and in exercise of the original jurisdiction to which reference has above been made and all other jurisdiction relating to such matters possessed by Your Majesty in Council, and upon report made to Your Majesty in Council by a Committee of the whole of Your Majesty’s Privy Council, or upon report so made by the Judicial Committee or other Committee of the Council to which Your Majesty in Council may see fit to refer the same, may adjudge such matters and determine all questions arising therefrom for decision. In particular Your Petitioners humbly pray that Your Majesty in Council may be pleased:–

(1) To adjudge and determine the nature and extent of the rights of the said Nishga Nation or Tribe in respect of the said territory.

(2) To adjudge and determine whether, as Your Petitioners humbly submit, the “Land Act” of British Columbia, now in force (Revised Statutes of British Columbia, 1911, Chapter 129), and any previous Land Act of that Province, in so far as the same purport to deal with lands thereby assumed to be the absolute property of the said Province and to confer title in such lands free from the right, title or interest of the Indian Tribes, notwithstanding the fact that such right, title or interest has not been in any way extinguished, are ultra vires of the Legislature of the said Province.

Your Petitioners also humbly pray that Your Majesty may be pleased, in pursuance of the above-mentioned provisions of the said Proclamation of King George the Third, to take such measures as may be found necessary for the protection of the Nishga Nation or Tribe in the exercise and enjoyment of the rights so adjudged and determined. 1913 Nishga Nation Petition 215

Your Petitioners also humbly pray that Your Majesty in Council may be pleased to grant to them such further or other relief in the premises as to Your Majesty in Your Great Wisdom shall seem meet. Your Petitioners also humbly pray that all such orders or directions as to matters of practice or procedure may be made or given as to Your Majesty may seem meet. Your Petitioners also humbly pray that upon consideration of this Petition by Your Majesty in Council or any Committee of the Privy Council Your Petitioners may be heard by their Counsel. And Your Petitioners will ever pray, etc. This Petition is presented by the Nishga Nation or Tribe of Indians through their Agents, Messrs. Fox and Preece, of 15, Dean’s Yard, West- minster, Solicitors, in pursuance of a resolution passed at a meeting of the said Nishga Nation or Tribe, held at the Village of Kincolith, situ- ated on the Naas River in the Province of British Columbia, on Wednesday, the 22nd day of January, 1913. This page intentionally left blank 3

Notes

foreword

1 The Government of Canada distinguishes between “comprehensive” and “specific” claims. Specific claims address the grievances of First Nations related to historic treaties or the manner in which the Government of Canada has managed First Nations’ financial or other assets.

chapter three

1 I am grateful for the valuable comments of my research assistant, John Wil- son. This chapter is a modified and expanded version of Brian Slattery, “The Aboriginal Constitution,” Supreme Court Law Review 67 (2014): 319–36. 2 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 [hereinafter “Haida Nation”]. 3 Manitoba Métis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 [hereinafter “Manitoba Métis”]. 4 The most authoritative printed text of the Proclamation appears to be the broadside published in London in 1763 by Mark Baskett, King’s Printer, and the assigns of Robert Baskett. This text is transcribed in British Royal Proclamations Relating to America, ed. Clarence S. Brigham (Worcester, MA: American Antiquarian Society, 1911), 212. I follow this text here. The original handwritten text, entered on the Patent Roll for the regnal year 4 Geo. III, is located in the United Kingdom Public Record Office: c. 66/3693 (back of roll). Another version of the text, of uncertain origins, is reproduced in R.S.C. 1985, App. II, No. 1. 5 As embodied in the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5. 218 Notes to pages 14–15

6 Supra, note 3. 7 S.C. 1870, c. 3. 8 Speaking for the majority, which comprised Chief Justice McLachlin and Justices LeBel, Fish, Abella, Cromwell, and Karakatsanis – six members of an eight judge panel. Justices Rothstein and Moldaver dissented. 9 Manitoba Métis, supra, note 3, at paras. 68–83 and 91–4. 10 Ibid., at para. 75. 11 Ibid., at paras. 133–53. 12 Ibid., at para. 65. 13 Haida Nation, supra, note 2, at paras. 16 and 18; Manitoba Métis Federation, supra, note 3, at para. 73; Beckman v. Little Salmon/Carmacks First Nation [2010] 3 S.C.R. 103 at para. 42 [hereinafter “Beckman”]. For discussion of the principle, see Arnot, “The Honour of First Nations,” 155; Dickson, “The Honour of the Crown”; Grammond, Terms of Coexistence, 265; Youngblood Henderson, Treaty Rights in the Constitution of Canada, 25–6, 92–6, 829–31, 887–944; Hoehn, Reconciling Sovereignties; Hogg and Dougan, “The Honour of the Crown”; paper prepared for the conference “Treaty Implementation: Honouring the Duty to Implement in Good Faith” hosted by the Pacific Business & Law Institute, June 17 & 18, 2014, Vancouver, bc; Huyer, “Hon- our of the Crown; McNeil, “The Crown’s Fiduciary Obligations”; Newman, Revisiting the Duty to Consult, 23–35; Régimbald and Newman, The Law of the Canadian Constitution, 804–10; McCabe, The Honour of the Crown; Slat- tery, “Aboriginal Rights and the Honour of the Crown,” 433; Slattery, “First Nations and the Constitution” (1992); Walters, “The Jurisprudence of Reconciliation,” 65. 14 See Haida Nation, supra, note 2, at para. 17: “In all its dealings with Aborigi- nal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably.” See also, ibid., at para. 32. 15 Justice Rothstein points this out in his dissent in Manitoba Métis, supra, note 3, at para. 156; see also paras. 204, 205, 212, and 267. For fuller consideration, see Hogg and Dougan, “Honour of the Crown,” 4–8; Slattery, “Abo- riginal Rights and the Honour of the Crown,” 443–5. 16 Manitoba Métis Federation, supra, note 3, at paras. 66–7, quoting Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) [2004] 3 S.C.R. 550 at para. 24, and Haida Nation, supra, note 2, at para. 32. See also Haida Nation, ibid., at para. 20, where the Court says: “Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty.” For a review of early European claims, see Slattery, “Paper Notes to pages 15–19 219

Empires,” 50; Slattery, The Land Rights of Indigenous Canadian Peoples, 66–125. 17 Quoting Slattery, “Aboriginal Rights and the Honour of the Crown,” 436. 18 Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Section 35(1) provides: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” 19 For information on the text of the Proclamation, see supra, note 4 . For a detailed legal analysis of the Proclamation, see Slattery, Land Rights of Indigenous Canadian Peoples, 191–361. For a brief account, see Slattery, “The Hidden Constitution,” 368–72. For Aboriginal perspectives on the Proclamation, see the thoughtful discussion in Borrows, “Constitutional Law from a First Nation Perspective,” and Borrows, “Wampum at Niagara,” 155. For the broader historical context, see Calloway, The Scratch of a Pen; White, The Middle Ground; Gipson, The Triumphant Empire. 20 See discussion in Attorney-General v. Stewart (1817) 2 Mer. 143 at 157–8, 35 E.R. 895(Ch.). 21 See: Report of Attorney and Solicitor General Regarding the Civil Govern- ment of Quebec, 14 April 1766, in Shortt and Doughty, eds., Documents Relating to the Constitutional History of Canada, 252 and 255; Report of Attorney General, Edwd. Thurlow, 22 January 1773, ibid., 437. See also the comments in Burge, Commentaries on Colonial and Foreign Laws, vol. 1, xxxvi–xxxvii. 22 See the letter sent by the Earl of Hillsborough, secretary of state for the Colonies to Lieut.-Governor Carleton of Quebec, 6 March 1768, in Shortt and Doughty, eds., Documents Relating to the Constitutional History of Canada, vol. 1, 297. 23 As to whether English civil law was introduced, see the following. Pro: Stu- art v. Bowman (1852) 2 L.C.R. 369 (S.C.) per Smith J. (dissenting) at 394–6; Stuart v. Bowman (1853) 3 L.C.R. 309 (Q.B.) per Aylwin J. at 387; Wilcox v. Wilcox (1858) 8 L.C.R. 34 (Q.B.) per Aylwin J. at 85–6. Contra: Stuart v. Bowman (1852) 2 L.C.R. 369 (S.C.) per Vanfelson J. at 402, per Mondelet J. at 410–18, and see the “reasons for judgment” at 443–4; Stuart v. Bowman (1853) 3 L.C.R. 309 (Q.B.) per Rolland J. at 348, per Mondelet J. at 399; Wilcox v. Wilcox (1858) 8 L.C.R. 34 (Q.B.) per Lafontaine C.J. at 42–50. Dubi- tante: Attorney-General v. Stewart, supra, note 20, at 157–8; Donegani v. Donegani (1835) 1 Can. Rep. A.C. 50 at 65, 77. 24 14 Geo. III, c. 83, ss. 8–11. 25 See, e.g., Jennings, The Ambiguous Iroquois Empire. 220 Notes to pages 20–6

26 For a fuller account, see Slattery, “The Metamorphosis of Aboriginal Title”; Slattery, “Understanding Aboriginal Rights,” 745–6. 27 See, e.g.. Havard, The Great Peace of Montreal. Although the portion of the French colony of Louisiana lying west of the Mississippi River was excluded from the cession to Great Britain in the Treaty of Paris, 1763, it had previously been transferred to Spain in a secret treaty concluded at Fontainebleau in 1762. 28 (1867) 17 R.J.R.Q. 75 (Que. S.C.) at 82. 29 Henry, Travels and Adventures in Canada, 44; quoted in Jones, License for Empire, 71. 30 Croghan, “Journals,” 47–8; quoted in Jones, License for Empire, 73. The statement was made in 1765, but it reflects earlier attitudes. 31 Quoted in Calloway, Scratch of a Pen, 70. 32 Ibid., 66–91. 33 Lord Egremont was the British secretary of state for the Southern Depart- ment. 34 “Fitch Papers,” Collections of the Connecticut Historical Society, 224; quoted in Slattery, Land Rights of Indigenous Canadian Peoples, 192. 35 Saunders, ed., The Colonial Records of North Carolina, at 974–6; quoted in Slattery, ibid., at 192–3. 36 For a detailed account of the Proclamation’s drafting, see Slattery, ibid., at 191–203. 37 The Supreme Court makes this point in Tsilhqot’in Nation v. British Colum- bia, 2014 SCC 44 at para. 70 [hereinafter “Tsilhqot’in Nation”]. 38 For detailed discussion, see Slattery, Land Rights of Indigenous Canadian Peo- ples, 268–82. 39 Ibid., 112–25. 40 See the pioneering work of Williams, The Chain, 72–94, and the detailed discussion in Borrows, “Constitutional Law from a First Nation Perspective,” and Borrows, “Wampum at Niagara.” 41 Williams, The Chain, 79; Borrows, “Constitutional Law from a First Nation Perspective,” 22. 42 Williams, The Chain, 82–3. 43 See Williams, The Chain, 83, and Borrows “Constitutional Law from a First Nation Perspective,” 24–5. 44 The legal arguments for the continuing application of the Proclamation are considered in Slattery, Land Rights of Indigenous Canadian Peoples, 329–49. 45 See Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313 (S.C.C) at 395, where Justice Hall stated: “[The Royal Proclamation’s] force as a statute is analogous to the status of Magna Carta which has always been Notes to pages 26–31 221

considered to be the law throughout the Empire. It was a law which followed the flag as England assumed jurisdiction over newly-discovered or acquired lands or territories.” 46 Supra, note 3; the following account is drawn from paras. 1–5. 47 Ibid., at para. 5. 48 Ibid., at para. 44. 49 Supra, note 5. 50 See the interesting remarks of Justice Deschamps in Beckman, supra, note 13, at para. 97, where she suggests that three basic compacts underpin the Canadian Constitution: “(1) one between the Crown and individuals with respect to the individual’s fundamental rights and freedoms; (2) one between the non-Aboriginal population and Aboriginal peoples with respect to Aboriginal rights and treaties with Aboriginal peoples; and (3) a ‘federal compact’ between the provinces.” For a parallel view, see Slattery, “First Nations and the Constitution,” 268–76. 51 Haida Nation, supra, note 2, at para. 20. 52 Ibid., at para. 25. 53 See the insightful remarks of Justice Binnie in Mitchell v. Canada (Minister of National Revenue – M.N.R.) [2001] 1 S.C.R. 911 at paras. 125– 37, and the excellent discussion in Walters, “The Jurisprudence of Reconciliation.” 54 Supra, note 3, at para. 92, emphasis added. 55 For discussion, see Slattery, “The Independence of Canada.” 56 See Canada, Royal Commission on Aboriginal Peoples, Partners in Confeder- ation: Aboriginal Peoples, Self-Government, and the Constitution (Minister of Supply and Services, 1993). 57 Manitoba Métis, supra, note 3, at paras. 68–83, 91–4. 58 Ibid., at para. 75. 59 Ibid., at para. 76. 60 Ibid., at para. 73. 61 Ibid., at para. 79. 62 Ibid., at para. 69. 63 Ibid., at paras. 71–2. 64 Ibid., at paras. 91–4. 65 Beckman, supra, note 13, at para. 42. 66 Manitoba Métis, supra, note 3, at paras. 78–9. See also para. 92. 67 Haida Nation, supra, note 2, at para. 20. 68 Ibid., at para. 19; confirmed in Manitoba Métis, supra, note 3, at para. 73. 69 Haida Nation, ibid., at para. 20. 70 Ibid., at para. 25. The Court reiterates this viewpoint in the recent Tsilhqot’in 222 Notes to pages 31–40

Nation decision, supra, note 37, at para. 17, where it explains: “The Court in Haida stated that the Crown had not only a moral duty, but a legal duty to negotiate in good faith to resolve land claims (para. 25).” The Court con- cludes at para. 18: “The jurisprudence just reviewed establishes a number of propositions that touch on the issues that arise in this case, including … Governments under a legal duty to negotiate in good faith to resolve claims to ancestral lands.” 71 Haida Nation, supra, note 2, at para. 20. 72 For an example of a court declaration enforcing the Crown obligation to negotiate honourably, see Mohawks of the Bay of Quinte v. Canada (Minister of Indian Affairs and Northern Development) [2013] F.C.J. No. 741, 2013 FC 669 (F.C.T.D) at paras. 40–67. However, the decision is confined to the manner in which the negotiations are conducted. 73 Quoted in Grinde and Johansen, Exemplar of Liberty, 11–12.

chapter four

1 Banner, How the Indians Lost Their Land, 87. 2 Bond, ed., “The Captivity of Charles Stuart,” 63–5. 3 Thwaites, ed., Early Western Travels, 214–16. 4 Kalter, ed., Benjamin Franklin, Pennsylvania, and the First Nations, 291– 333. 5 Abbot, Twohig, and Chase, eds., The Papers of George Washington, vol. 6, 158–60. 6 Sullivan, et al., eds., The Papers of Sir William Johnson, vol. 3, 457. 7 Banner, How the Indians Lost Their Land, 90. 8 Crane, ed., “Hints Relative to the Division,” 367–73; Barrow, ed., “A Project for Imperial Reform,” 108–26; quotes at 116–17; Cashin, Governor Henry, quote re: Egremont at 153. 9 Egremont to Amherst, 27 January 1763, in “The Fitch Papers,” 224. 10 Alvord, ed., The Mississippi Valley in British Politics, vol. 1, 148, 157–82, 203; Humphreys, “Lord Shelburne and the Proclamation of 1763.” 11 Anderson, Crucible of War, 565. 12 The Proclamation is reprinted in Shortt and Doughty, eds., Documents Relat- ing to the Constitutional History of Canada, 163–8. 13 Banner, How the Indians Lost Their Land, 94, 108. 14 Borrows, “Constitutional Law from a First Nation Perspective”; Borrows, “Wampum at Niagara.” 15 Peckham, ed., George Croghan’s Journal, 23. Notes to pages 40–50 223

16 Holton, Forced Founders; Abernethy, Western Lands and the American Revolution. 17 Anderson, Crucible of War, 592 –4. 18 Abernethy, Western Lands and the American Revolution, 69; Fitzpatrick, ed., The Writings of George Washington, vol. 2, 468 –70. 19 Calloway, “Suspicion and Self-Interest,” 41–60; Calloway, Crown and Calumet, 5–13. 20 Banner, How the Indians Lost Their Land, 118. 21 Cayton, The Frontier Republic; Washington quote at 7. 22 United States Congress, The New American State Papers: Indian Affairs, vol. 4, 17–18. 23 “Ordinance of 1787,” in Carter, ed., The Territorial Papers of the United States, vol. 2, 39–50; Onuf, Statehood and Union. 24 Act of July 22, 1790, Pub. L. No. 1-33, § 4, 1 Stat. 137; N. Bruce Duthu, Amer- ican Indians and the Law, 66–7. 25 Hough, ed., Proceedings of the Commissioners of Indian Affairs, vol. 1, 166. 26 “Message to the Commissioners of the United States,” in Calloway, ed., First Peoples, 261. 27 Fitzpatrick, ed., Writings of George Washington, vol. 25, 112. 28 Watson, Buying America from the Indians; Miller, Native America, Discovered and Conquered; Robertson, Conquest by Law; Banner, How the Indians Lost Their Land, chap. 5; Echo-Hawk, In the Courts of the Conqueror, chap. 4 (tenants); Duthu, American Indians and the Law, 70 (“guests”).

chapter five

1 I wish to acknowledge the funding assistance for my research provided by the Social Sciences and Humanities Research Council of Canada. 2 Robertson, “Shaking the Crown’s Bone.” 3 Walters, Promise and Paradox, 21–2. 4 “Report on the Affairs of the Indians in Canada, Laid Before the Legislative Assembly, 20th March, 1845,” Section. I, p. 4, Journals of the Legislative Assem- bly of Canada (1845), App. EEE; emphasis added. 5 E.g., St. Catharines Milling and Lumber Co. v. Ontario (Attorney General), (1887) 13 S.C.R. 577, per Strong J. (in dissent on the main point) at 633 (the Proclamation is looked upon by the Indians as “the charter of their rights”). 6 R. v. Marshall, 2003 NSCA 105, (2004) 218 N.S.R. (2d) 78, per Cromwell J.A. at para. 202 (quoting R. v. Secretary of State of Foreign and Commonwealth 224 Notes to pages 51–5

Affairs, [1982] 1 Q.B. 892 (C.A.) per Lord Denning at 912–13, 917–18). See also R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220, per McLachlin C.J.C. at para. 86 (“the Royal Proclamation must be interpreted in light of its status as the ‘Magna Carta’ of Indian rights in North America and Indian ‘Bill of Rights’”); Calder v. British Columbia [1973] S.C.R. 313, per Hall J. at 395 (stating in relation to the Royal Proclamation of 1763: “Its force as a statute is analogous to the status of Magna Carta which has always been considered to be the law throughout the Empire”); R. v. Kogogo- lak (1959), 31 C.R. 12 (N.W.T. Ct.), per Sissons J. at 13 (the Proclamation of 1763 is the “Magna Carta of the Eskimos”). 7 R. v. Secretary of State for Foreign and Commonwealth Affairs, [1982] 1 Q.B. 892 (C.A.), per Lord Denning M.R. at 912–13, 917–18. 8 The Constitution in Canada is interpreted as a “living tree”, that is, as a progressive and dynamic set of constitutional rules and principles: Edwards v. A.G. of Canada, [1930] A.C. 124 per Viscount Sankey L.C. at 136; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 at paras. 22–30. 9 Calloway, The Scratch of a Pen. 10 Cover, “The Supreme Court, 1982 Term – Foreword,” 40. See also Goodrich, Languages of Law, 2; Macdonald, “Custom Made,” 301–27. 11 See in general Fuller, The Law in Quest for Itself; Fuller, Anatomy of the Law; Dworkin, Law’s Empire. 12 On the integration of Indigenous legal traditions into Canadian constitutional law, see, for example, Borrows, Canada’s Indigenous Constitution. In this respect, it is important to recall that the Supreme Court of Canada insists that Aboriginal title is a form of property interest derived from both the common law and Indigenous legal traditions: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, paras. 114, 147–8. 13 For the most comprehensive account of the two sets of rules for Indian lands enacted by the Proclamation, see Slattery, The Land Rights of Canadian Indigenous Peoples. 14 Case of Proclamations (1611), 12 Co. Rep. 74. 15 Campbell v. Hall (1774), 1 Cowp. 204. 16 The American courts would assume that the Proclamation of 1763 was valid on this basis: Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, per Marshall C.J. at 595–96. 17 For the Crown’s powers in relation non-European, non-Christian nations see The East India Company v. Sands (1684), 2 Shower KB 366; East India Company v. Sandys (1683–85), Skinner 132, 165, 223; and The Great Case of Monopolies, between the East-India Company, Plaintiffs, and Thomas Sandys, Notes to pages 55–8 225

Defendant (1683–85), 10 Howell’s St. Tr. 371. For the Crown’s powers to resolve disputes between different components of the empire, see Penn v. Baltimore (1750), 1 Ves. Sen. 444 at 446–7 (Ch.); Process into Wales (1668–74), Vaugh. 395 at 404. 18 R. v. Sioui, [1990] 1 S.C.R. 1025 at 1053. 19 Quoted in St. Catharines Milling and Lumber Co. v. Ontario (Attorney General) (1887) 13 S.C.R. 577, per Gwynne J. at 652. 20 Edmond Atkin, “Report on Indian Affairs to the Board of Trade,” 30 May 1755, printed in Wilbur R. Jacobs, ed. Indians of the Southern Colonial Fron- tier: The Edmond Atkin Report and Plan of 1755 (Columbia: University of South Carolina Press, 1954). See also R. Jacobs, “Edmund Atkin’s Plan for Imperial Indian Control,” Journal of Southern History 19/3 (Aug. 1953), 311–20. 21 Walters, “Mohegan Indians v. Connecticut.” 22 Middleton, Pontiac’s War; Nester, Haughty Conquerors. 23 Thomas Gage, Commander in Chief, to Sir William Johnson, Supt. Gen. Ind. Affrs., 1 December 1763, in J. Sullivan (ed.), The Papers of Sir William Johnson, IV, 255–56. 24 Headed by the Earl of Hillsborough and consisting for the most part of the same members that drafted the Proclamation, the Board of Trade began work on the proposed law on Indian affairs in early December of 1763: Journal of the Commissioners for Trade & Plantations (London: H.M. Sta- tionery Office, 1935), January 1759 to December 1763, p. 417. 25 Lords of Trade to Sir William Johnson, 10 July 1764, enclosing “Plan of 1764,” in O’Callaghan, (ed.), Documents Relative to the Colonial History of the State of New York, vol. 2, 63–6. 26 Ibid. 27 “Plan of 1764,” ibid., at articles 18 and 19. 28 Richter, “Native Americans, the Plan of 1764.” 29 E.g. Sir William Johnson, “A Review of the progressive State of the Trade, Poli- tics and proceedings of the Indians in the Northern district,” September 1767, in Documents Relative to the Colonial History of the State of New York, vol. 2, 953–77; Sir William Johnson to Earl Shelburne, 16 December 1766, in Docu- ments Relative to the Colonial History of the State of New York, vol. 2, 880–2. 30 George Suckling, Attorney General for Quebec, to P.E. Irving, President of the Council and Commander in Chief of the Province, 1 August 1766, United Kingdom National Archives, CO 42/5: 333–4. 31 The Order in Council was published in Quebec in The Quebec Gazette, no. 199 (Thursday October 20, 1768). 226 Notes to pages 59–64

32 Province of Ontario v. Dominion of Canada (1909), 42 S.C.R. 1, per Idington J. at 107. 33 Regina v. The St. Catharine’s Milling and Lumber Company (1885), 10 O.R. 196 (Ch. Div.), aff’d (1886), 13 O.A.R. 148 (C.A.), aff’d (1887), 13 S.C.R. 577, aff’d St. Catherine’s Milling & Lumber Co. v. The Queen (1889), 14 App. Cas. 46 (P.C.). 34 Regina v. The St. Catharine’s Milling and Lumber Company (1885), 10 O.R. 196 (Ch. Div.), 206–7. 35 Ibid., at 206, 211, 230. 36 Regina v. The St. Catharine’s Milling and Lumber Company (1887), 13 S.C.R. 577, 647. 37 Ibid. 38 Ibid., 629–33. 39 Ibid., 612, 613. 40 St. Catherine’s Milling & Lumber Co. v. The Queen (1889), 14 App. Cas. 46 (P.C.). 41 Johnson v. M’Intosh, 21 (8 Wheat.) U.S. 543 (1823), per Marshall C.J. at 594, 597. 42 Rex v. McMaster et al., [1926] Ex.C.R. 68 (Exch. Ct. Can.) per Maclean J. at 72–3 (“The proclamation of 1763 … has the force of a statute, and so far therein as the rights of the Indians are concerned, it has never been repealed … I am unable also to concur in the defendant’s contention that the Quebec Act, which enlarged the limits of the province of Quebec, destroyed the rights of the Indians in the lands reserved under the proclamation.”); Easterbrook v. The King, [1931] S.C.R. 210 per Newcombe J. at 217–18 (long term leases made between Indian chiefs and private lessee made in 1821 void ab initio as contrary to the terms of the Royal Proclama- tion of 1763 “which have the force of statute”); Regina v. George (1963), 41 D.L.R. (2d) 31 (Ont. H.C.); aff’d [1964] 2 O.R. 429 (C.A.); rev’d [1966] S.C.R. 267 (at trial, McRuer C.J.H.C. suggested at 28–9 that the Proclama- tion could not be repealed even by statute; at the Court of Appeal, Roach J.A. stated at 431 that the Proclamation remained in force and as an “Imper- ial Law” it could not be amended or repealed by federal statute until after the Statute of Westminster 1931; the Supreme Court of Canada reversed the lower courts, but on other grounds); R. v. Secretary of State for Foreign and Commonwealth Affairs, [1982] 1 Q.B. 892 (C.A.), per Lord Denning M.R. at 912–13 (the Proclamation is “ranked by the Indian peoples as their Bill of Rights” and is the “equivalent to an entrenched provision in the constitution of the colonies”). Notes to pages 64–5 227

43 Ontario (Attorney General) v. Bear Island Foundation (1989), 68 O.R. (2d) 394 (C.A.), at 410; aff’d [1991] 2 S.C.R. 570. 44 R. v. Côté, [1989] 3 C.N.L.R. 141 (Que. Prov. Ct.), per Barrière J. aff’d sub nom R. v. Decontie, [1991] 1 C.N.L.R. 107 (Que. Sup. Ct.), per Frenette J., aff’d R. v. Côté, (1993), 107 D.L.R. (4th) 28 (Que. C.A.), per Baudouin J.A. (Tyndale J.A. concurring), rev’d [1996] 3 S.C.R. 139 (the Proclamation did not factor in the Supreme Court’s decision); R. v. Marshall, 2003 NSCA 105, (2004) 218 N.S.R. (2d) 78, [2004] 1 C.N.L.R. 211, per Cromwell J.A. at para. 215 (though he went on to say that there were common law grounds for a broad conception of Aboriginal title); rev’d R. v. Marshall; R. v. Bernard [2005] 2 S.C.R. 220 (the Court on appeal did not deal directly with the Proclamation argument). 45 One of many Covenant Chain treaty councils is the Niagara council of 1764: Treaty Council at Niagara, July 9–August 14, 1764, in J. Sullivan (ed.), The Papers of Sir William Johnson, vol. 6. 46 Calder v. British Columbia, [1973] S.C.R. 313, per Hall J. (Laskin C.J. and Spence J. concurring) at 395 (“[The Proclamation’s] force as a statute is analogous to the status of Magna Carta which has always been considered to be the law throughout the Empire. It was a law which followed the flag as England assumed jurisdiction over newly-discovered or acquired lands or territories.”); Regina v. Kogogolak (1959), 31 C.R. 12 (N.W.T. Ct.), per Sis- sons J. at 13 (the Proclamation of 1763 is the “Magna Carta of the Eski- mos”). See also Regina v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.) per Norris J.A. at 218-232 (“The royal proclamation of 1763 was declaratory and confirmatory of the aboriginal rights and applied to Van- couver Island”). 47 Regina v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.) per Sheppard J.A. (Lord J.A. concurring) (the Proclamation did not apply to Vancouver Island); Calder v. British Columbia, [1973] S.C.R. 313 (three judges – Hall J. with Laskin C.J. and Spence J. concurring – held that the Proclamation applied in British Columbia, and three judges – Judson J. with Martland and Ritchie JJ. Concurring – held that it did not); Delgamuukw v. British Columbia, [1993] 5 C.N.L.R. 1 (B.C.C.A.), rev’d (at the Court of Appeal, four judges ruled that Proclamation did not apply and one ruled it was not necessary to decide the question; this issue was not addressed by the Supreme Court of Canada on appeal); Xeni Gwet’in First Nations v. British Columbia 2006 BCSC 399 per Vickers J. at para. 11 (the Proclamation does not apply in British Columbia). 48 E.g., Ross River Dena Council v. Canada (Attorney General) 2012 YKSC 4. 228 Notes to pages 65–6

49 R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, per Bastarache J. at para. 118. 50 Calder v. Attorney General of British Columbia, [1973] S.C.R. 313; Guerin v. The Queen, [1984] 2 SCR 335. 51 A majority of the Court in Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220, appeared to define Aboriginal title narrowly to include only those lands possessed in the common law sense, but LeBel J. (Fish J. concurring), at para. 133, invoked the Proclamation to argue that Aboriginal title included Aboriginal territories as understood through Aboriginal modes of use and occupation. This latter view has now been accepted by the Court: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. 52 Province of Ontario v. Dominion of Canada (1909), 42 S.C.R. 1 per Idington J. at 103–4. 53 Guerin v. The Queen, [1984] 2 SCR 335. 54 Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, at para. 42; Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] S.C.J. No. 14, para. 66. See in general Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Colum- bia (Project Assessment Director), [2004] 3 S.C.R. 550. 55 Lysyk, “The Rights and Freedoms of the Aboriginal Peoples of Canada,” 475. 56 R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1103. 57 In 1764, the Superintendent General of Indian Affairs denied that the nations of the Great Lakes region were under Crown “Sovereignty” or “Laws” (Sir William Johnson to the Lords of Trade, 30 October 1764, E.B. O’Callaghan, ed., Documents Relative to the Colonial History of the State of New York (Albany, N.Y.: Weed, Parsons, & Co., 1856–61), VII, 670-4). It is worth noting as well that Royal Instructions issued at the same time as the Royal Proclamation of 1763 to the first governor of the new British province of Quebec not only instructed him to enforce the Proclamation but also observed that the province was “in part inhabited and possessed by several Nations and Tribes of Indians” with whom it was necessary “to culti- vate and maintain a strict Friendship and good Correspondence, so that they may be induced by Degrees, not only to be good Neighbours to Our Subjects, but likewise themselves to become good Subjects to Us,” and so the governor was “to assemble, and treat with the said Indians, promising and assuring them of Protection and Friendship” and also to inform himself as to the number, nature, and disposition of the Indians as well as “the Rules and Constitutions, by which they are governed or regulated” – which suggests, if anything, that Indigenous nations retained a certain sovereign dis- Notes to pages 67–72 229

tance from the Crown, and were assumed to retain that distance even after treaties were made (“Instructions to Governor Murray,” articles 60–3, in Adam Shortt and Arthur G. Doughty (eds.), Documents Relating to the Con- stitutional history of Canada, 1759–1791 (Ottawa: S.E. Dawson, 1907), 145. As for the American cases, in Johnson v. M’Intosh (1823) 8 Wheaton 543 (U.S.S.C.), Chief Justice John Marshall explained that Crown claims to America left Indigenous “sovereignty” “diminished,” not gone. 58 Mitchell v. Canada (Minister of National Revenue – M.N.R.), [2001] 1 S.C.R. 911, para. 9. 59 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, para. 20; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) [2004] 3 S.C.R. 550, para. 42. 60 Borrows, “Wampum at Niagara,” 155–72. 61 McDiarmid Lumber v. God’s Lake First Nation, 2006 SCC 58, [2006] 2 S.C.R. 846, per Binnie J. at para. 116 (in dissent on main point); Kruger v. The Queen, [1978] 1 S.C.R. 104, per Dickson J. at 107. 62 Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 51 O.R. (3d) 641 (C.A.) at paras. 201, 54.

chapter six

1 This research was undertaken, in part, thanks to funding from the Canada Research Chairs program. 2 See Bartlett, Indian Reserves in Quebec, 2–9. 3 The French population at the time of the British conquest of Canada numbered between sixty and seventy thousand people. 4 For a recent and meticulous count and identification of the mobilized, the dead, the wounded, the deported, and the displaced among the local population, see Mathieu and Imbeault, La guerre des Canadiens. 5 Morin and Woehrling, Les constitutions du Canada, 48–50. 6 Lacoursière, Histoire populaire, 372. 7 Ordonnance pour organiser et établir des Cours de judicatures, des sessions trimestrielles, de même que tout ce qui concerne l’administration de la justice dans cette Province, et pour instituer des juges de paix et des baillis, 17 Septembre 1764, in Shortt and Doughty, Documents relatifs à l’histoire constitutionnelle. 8 See Morel, “La réaction des Canadiens.” 9 Decroix, Gilles, and Morin, Les tribunaux et l’arbitrage en Nouvelle-France, 252–9. 10 See the remarks made by Lord Hillsborough to Governor Carleton on 6 230 Notes to pages 72–8

March 1768, quoted in Chapais, Cours d’histoire du Canada, 103–4. See also the report prepared in 1766 by the Attorney General Charles Yorke and the Solicitor General William de Grey quoted in Lacoursière, Histoire populaire, 372. 11 See Grammond, Terms of Coexistence, 205–6. 12 Decroix, Gilles, and Morin, Tribunaux et l’arbitrage, 252. 13 For an account of the petitions sent to Westminster asking for the reintroduction of French law, see in particular Lacoursière, Histoire populaire, 373. 14 For a discussion of the opposing views and demands regarding the Assem- bly, see Lacoursière, Histoire populaire, 376–9. See also, Vaugeois, Québec 1792, 32–8. 15 See Morin and Woehrling, Les constitutions du Canada. 16 See Dumont, Genèse de la société québécoise, 133–8 and 182–236. 17 See Létourneau, Passer à l’avenir, 142–4. 18 Payette and Payette, Ce peuple qui ne fut jamais souverain. 19 R. v. Sioui, [1990] S.C.R. 1025, at pp. 1052–4. For a recent study, see Morin, “Fraternité, souveraineté et autonomie.” 20 Eccles, “Sovereignty-Association, 1500–1783.” 21 For an overview of the relevant historical literature, see Boivin, “Les droits des autochtones,” 156–62. 22 For a detailed study of the colonial attack on Indigenous sovereignty, see Morin, L’usurpation de la souveraineté autochtone. 23 This point has been very aptly made in Miller, Native America, Discovered and Conquered, 31–3. 24 See in particular Anaya, Indigenous Peoples in International Law, 26–31. 25 See Borrows, “Constitutional Law from an First Nation Perspective.” 26 See McNeil, Native Rights and the Boundaries of Rupert’s Land, 6–8. 27 See Cassidy, “Aboriginal Land Claims in British Columbia,” 12–13. 28 Government of Canada, Aboriginal Self-Government. 29 R. v. Sparrow, [1990] 1 S.C.R. 1075, at 1103. 30 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at par. 36. 31 Ibid., at para. 32. 32 Ibid., at para. 20. 33 For a comprehensive review and defense of this interpretation, see Hoehn, Reconciling Sovereignties. 34 See, for example, ibid., 38–44. 35 That is the lands lying between the newly established border of Quebec and the border of the Hudson’s Bay Company. Notes to pages 78–91 231

36 For a thorough discussion, see in particular Dionne, “Les postulats de la Commission Dorion.” 37 See Grammond, 70–5. 38 R. v. Côté, [1996] 3 S.C.R. 139.

chapter seven

1 I wish to thank the Social Sciences and Humanities Research Council of Canada, whose Strategic Research and Gold Medal research grants supported the work on which this chapter is based. 2 Miller, Compact, Contract, Covenant, 11–12. Compact, Contract, Covenant provides a historical overview of Crown-Aboriginal treaty making from contact to the twenty-first century, including the earliest phases of commercial compacts and pacts of peace and friendship. 3 Miller, Compact, 7–10. 4 Biggar, ed., The Works of Samuel de Champlain, 104. 5 Wraxall, An Abridgment of Indian Affairs, 195. 6 The recorded cases of the use of wampum all involve male First Nations diplomats. Women manufactured the wampum. 7Havard, The Great Peace of Montreal of 1701. 8 Schmidt and Balcom, “The Règlement of 1739,” 110. The sole agreement between the Mi’kmaq and the French was a relatively minor pact made in 1739. 9 Miller, Compact, 59–62. 10 The Maritime peace and friendship treaties discussed here are usefully reproduced in Daugherty, Maritime Indian Treaties in Historical Perspective, 75–91. Also useful for understanding these treaties are: Wicken, Mi’kmaq Treaties on Trial; Patterson, “Indian-White Relations in Nova Scotia”; and Reid, “Pax Britannica or Pax Indigena?” 11 Stagg, Anglo-Indian Relations in North, 335. 12 This and other quotations from the “Indian clauses” of the Proclamation are reproduced in British Royal Proclamations Relating to America, 1603–1783, ed. Clarence S. Brigham, vol. 12 of Transactions and Collections of the American Antiquarian Society (Worcester, MA: American Antiquarian Society, 1922), 215–18. Also essential for understanding the Proclamation’s clauses concerning First Nations are Stagg (note 11, above) and Borrows, “Wampum at Niagara.” 13 William Johnson to Thomas Gage, 19 Feb. 1764, in The Papers of Sir William Johnson. 232 Notes to pages 91–105

14 Ibid., vol. 7: 307, 309–10, account of Niagara conference. See also ibid., vol. 11: 278–324; and Johnson to Cadwallader Colden, 23 Aug. 1764, ibid., vol. 4: 511–14. 15 Miller, Compact, 110, 119. Treaty making in Upper Canada is covered in: Surtees, “Indian Land Cessions in Ontario,” and “Land Cessions, 1763–1830”; Telford, “Aboriginal Resistance in the Mid-Nineteenth Century.” 16 Lord Dorchester, Additional Instructions, Indian Department, 241–2. 17 Library and Archives Canada, Sir Frederick Haldimand Papers. 18 Archives of Ontario, W.B. Robinson Diaries; Surtees, Treaty Research Report: The Robinson Treaties. 19 For the southern numbered treaties, see Friesen, “Magnificent Gifts”; Miller, Compact, Contract, Covenant, chaps 5 and 6; Talbot, Negotiating the Numbered Treaties; and Treaty 7 Elders and Tribal Council, with Hildebrandt, First Rider, and Carter, The True Spirit and Original Intent of Treaty 7. 20 Miller, Compact, 190–2; Morris, the Treaties of Canada with the Indians, 211. For other instances of the Crown’s assurances of continuity and non-interference in Treaty 6 negotiations, see ibid., 77, 184, 204, 212, 218, 221, 231, 233, and 241. 21 For the northern numbered treaties, see Miller, Compact, Contract Covenant, 218–19; Ray, Miller, and Tough, Bounty and Benevolence; Ray, “Treaty 8: A British Columbian Anomaly”; Long, Treaty No. 9; Gulig, “Yesterday’s Promises”; Fumoleau, As Long as This Land Shall Last. 22 Long, Treaty No. 9. 23 Diamond, “Aboriginal Rights: The James Bay Experience”; Richardson, Strangers Devour the Land. 24 Foster, Raven, and Webber, eds., Let Right Be Done.

chapter eight

1 This paper is dedicated to Paul Quassa, Bob Kadlun, and Paul Okalik, three Inuit who were instrumental in negotiating and ratifying the 1993 Nunavut Land Claims Agreement (nlca). I had the privilege of working with them from 1985 to 1992 when I was research director of the Tungavik Federation of Nunavut (tfn), the Inuit organization that negotiated the nlca. The Canadian Arctic Resources Committee (carc) features prominently in the 1980s in the modern treaty story. Transparency requires me to note that I was carc’s research director from 1982 to 1985 and executive director from 1992 to 1996. Notes to pages 105–9 233

2 The number of Indigenous people in North America on the eve of “discovery” has generated much dispute. See Jennings, The Invasion of America, 15–31. 3 The texts of modern treaties are available at www.ainc- inac.gc.ca/al/ldc/cci/fagr/index-eng.asp. 4 For an easy-to-read yet comprehensive survey of treaty making in Canada, see Miller, Compact, Contract, Covenant. 5 Much has been written about the Royal Proclamation of 1763, but I benefited immensely from Slattery, The Land Rights of Indigenous Peoples. Treaty making in the decades immediately following the Royal Proclamation of 1763 in what became the United States of America is authoritatively addressed in Jones, License for Empire. 6 The United States of America addressed land-based grievances of Aboriginal peoples some years before action was taken in Canada. Congress established an Indian Claims Commission in 1946 to address what in Canada came to be referred to as “specific claims.” In 1971, Congress passed the Alaska Native Claims Settlement Act extinguishing the aboriginal title of Alaskan Native peoples and, in return, granted certain lands to community and regional corporations and provided nearly $1 billion in financial compensation; see Mitchell, Take My Land Take My Life. While a legislated rather than negotiated settlement, the Alaska Native Claims Settlement Act was a contextual factor in the Government of Canada’s 1973 decision to negotiate “comprehensive claims,” resulting in comprehensive land claims agreements, that is, modern treaties. 7 Government of Canada, Statement of the Government of Canada on Indian Policy (the White Paper, 1969). 8 In print now for more than forty years, The Unjust Society was republished in 1999. 9Weaver, Making Canadian Indian Policy. 10 Scholtz, Negotiating Claims. 11 Calder v. Attorney General of British Columbia, [1973] S.C.R. 313. 12 The history of the Nisga’a land claim is well told in Raunet, Without Surren- der Without Consent. See also, Allen, “Reflections on the 40th Anniversary of the Calder Decision.” 13 Scholtz, Negotiating Claims, 72. 14 Department of Indian Affairs and Northern Development, “Statement Made by the Honourable Jean Chretien, Minister of Indian Affairs and Northern Development on the Claims of Indian and Inuit People.” 15 See Milton Freeman Research Ltd., Inuit Land Use and Occupancy Project. 234 Notes to pages 109–21

The map biography research method used in this research was pioneered in the United States of America to support claims submitted to the Indian Claims Commission set up in 1946 and disbanded in 1978. See Sutton, Irre- deemable America. 16 Richardson, Strangers Devour the Land tells the story of how Cree hunters of the James Bay area took on the Government of Quebec and the James Bay Development Corporation over the proposed development of the La Grande river system. It is still compelling reading. 17 Department of Indian Affairs and Northern Development, In All Fairness. 18 Russell, Constitutional Odyssey is a highly readable account of Canada’s constitutional machinations of the 1980s and 1990s. 19 See Canadian Arctic Resources Committee, National and Regional Interests in the North, which includes the unscripted dialogue between workshop participants as well as commissioned background papers. 20 Crombie, personal communication, 19 August 2013. 21 Members of the task force included Murray Coolican (chair), Connie Hunt, Peter Russell, Guy Dancosse, Joe Mathias, and Lynn Jamieson-Clark (executive director). 22 Government of Canada, Living Treaties: Lasting Agreements. 23 The Comprehensive Claims Coalition included Conseil Attikamek-Montag- nais, Council of Yukon First Nations, Dene Nation, Northwest Territory Métis Nation, Kaska-Dena Council, Labrador Inuit Association, Nisga’a Tribal Council, Taku River Tlingit First Nation, and the Tungavik Federa- tion of Nunavut. 24 See Comprehensive Claims Coalition, “Self-Government Policy Statement,” 16–17. 25 Fenge and Barnaby, “From Recommendations to Policy,” 12–15. 26 Government of Canada, Comprehensive Land Claims Policy. 27 Canadian jurisprudence, particularly Calder, is warmly cited in Australian and New Zealand jurisprudence. See Russell, Recognizing Aboriginal Title. 28 Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples. 29 See, for example, the trenchant commentary on modern treaties by Penikett, Reconciliation. 30 See Crowe, “Claims on the Land 1,” “Claims on the Land 2.” 31 Negotiations in the early 1990s to define land parcels to be owned by Inuit is well told in McPherson, New Owners in Their Own Land: Minerals and Inuit Land Claims, 2003. 32 Government of Canada, Federal Policy for the Settlement of Native Claims. Notes to pages 122–8 235

33 Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship. 34 Ibid., Treaty Making in the Spirit of Co-existence. 35 Prime Minister Chrétien left it to Ron Irwin, minister of Indian Affairs and Northern Development (November 1993 to June 1997), to respond on behalf of the Government of Canada to the Report of the Royal Commis- sion on Aboriginal Peoples. 36 Government of Canada, Aboriginal Self-Government. 37 The Land Claims Agreements Coalition website includes all documents developed by the coalition, including the proceedings of its conferences and correspondence with the Government of Canada. See www.landclaimscoalition.ca. 38 Land Claims Agreement Coalition, “A New Land Claims Implementation Policy.” 39 Auditor General of Canada, Report of the Auditor General of Canada to the House of Commons: Chapter 8 Indian and Northern Affairs Canada – Transfer- ring Federal Responsibilities to the North. 40 Ibid., 1–2. 41 Nunavut Tunngavik, Inc., “Backgrounder – Historic Ruling from the Nunavut Court of Justice Upholding Inuit Rights.” 42 Government of Canada, Aboriginal Roundtable to Kelowna Accord. 43 These sessions were informal, exploratory, frank, and open to any coalition member, and took place in the Langevin Block – the Prime Minister’s Office – signaling to line agencies the interest of powerful central agencies in improving implementation of modern treaties. Representatives of the Nisga’a Nation, nti, Makivik Corporation, the Grand Council of the Crees of Quebec, the Inuvialuit Regional Corporation, and the Gwich’in Tribal Council were regular attendees. For the Government of Canada, representatives of the departments of Indian Affairs and Northern Development, Jus- tice, Environment, and Fisheries and Oceans, as well as the Privy Council Office were regular participants. Several participants on both sides had already engaged each other in land claims and/or implementation plan negotiations. 44 This document is not posted on the coalition’s web site as it was not formally endorsed by members of the coalition or the Government of Canada. 45 Government of Canada, Canada’s Northern Strategy. 46 Land Claims Agreements Coalition, “‘Four-Ten’ Declaration of Dedication and Commitment.” 236 Notes to pages 128–35

47 Nunavut Tunngavik Inc., “nti Launches Lawsuite Against Government of Canada for Breach of Contract.” For a comprehensive analysis of problems implementing the Nunavut Agreement see Campbell, Fenge, and Hanson, “Implementing the 1993 Nunavut Land Claims Agreement,” 2011. 48 Land Claims Agreements Coalition, “Second Universal Periodic Review of Canada: Submission of the Land Claims Agreements Coalition (lcac).” 49 Aatami et al., “It’s the Aboriginal Peoples’ Turn,” A15. 50 Government of Canada, Proceedings of the Senate Committee on Aboriginal Peoples, Issue No. 3, Evidence, 12 February 2008. 51 Standing Senate Committee on Aboriginal Peoples, Honouring the Spirit of Modern Treaties. 52 Ibid., 41. 53 Ibid. 54 Ibid., 49. 55 Ibid., 51. 56 Ibid., 54. 57 Government of Canada, Impact Evaluation of Comprehensive Land Claim Agreements. 58 Ibid., v. 59 Land Claims Agreements Coalition, Honour, Spirit and Intent. 60 Ibid., 3. 61 Ibid. 62 Government of Canada, Instituting a Federal Framework for the Management of Modern Treaties. 63 Ibid., 5. 64 Ibid., 6. 65 Ibid. 66 Government of Canada, Guide for the Management of Dispute Resolution Mechanisms in Modern Treaties. 67 John Duncan, presentation to House of Commons Standing Committee on Indian and Northern Affairs, 11 November 2011. 68 nti v. Canada (Attorney General) 2012, Paragraph 333 (emphasis added). 69 Fenge, “Honouring Our Treaties,” 36–8. 70 Valcourt, 29 April 2013. The minister wrote again to the coalition co-chairs on 21 August 2013 supporting cooperative action by the coalition and the Government of Canada in a working group to develop a “whole of government” approach to implementation of modern treaties. 71 Eyford, Forging Partnerships Building Relationships. 72 Government of Canada, Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights. Notes to pages 135–49 237

73 The Tsilhqot’in judgment is available at www.scc.csc.lexum.com. 74 Fenge and Penikett, “Paper Promises,” 7–9.

chapter nine

1 Jim Aldridge, QC, is a barrister and solicitor whose office is in Vancouver, bc. He first represented the Nisga’a Nation in 1980 and has been lead legal counsel to the nation ever since. This role has included representation during treaty negotiations as well as in the constitutional process of the 1980s. Much of the information in this chapter comes directly from Nisga’a historical knowledge and records, as well as from the author’s own memory. 2 British Columbia, Sessional Papers, 1887, 252–72; see also Tennant, Aboriginal Peoples and Politics, 56–8. 3 Tennant, Aboriginal Peoples and Politics, 255–6. 4 Ibid., 259. 5 Order in Council, March 1914, PC 751; see also Tennant, Aboriginal Peoples and Politics, 92–3. 6 Tennant, Aboriginal Peoples and Politics, 93. 7 Calder v. British Columbia, [1973] S.C.R. 313. 8 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. 9 See, for example, Laforest J. in Delgamuukw, 1132; Tsilhqot’in Nation v. British Columbia, 2014 SCC 14, at para. 69. 10 Canadian Press, “Indians have more land rights than he thought, Trudeau says,” Globe and Mail, 8 February 1973. 11 R. v. Sparrow, 36 DLR (4th) 246. The court said: The view that the decision of this court in Calder continues to be binding on lower courts is one which has had surprising vitality in British Columbia. It has been put forward in other cases since the coming into force of the Constitution Act 1982. See, e.g, Peters v. Regina 1983 CanLII 348 (bc SC), (1983), 42 B.C.L.R. 373. In the Meares Island case, it formed one of the grounds for refusing an interlocutory injunction in the first instance. Because of the apparently wide acceptance of the fallacy, it may be worth making a further effort to lay it to rest, notwithstanding that no counsel attempted to support it before us in this case and notwithstanding that by clear implication, it was rejected by this court in Meares Island. 12 Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753. 13 In R. v. Sparrow, [1990] 1 S.C.R. 1075, the Supreme Court of Canada defini- tively ruled that the word “existing” simply means not extinguished. 14 Sga’nisim Sim’augit (Chief Mountain) v. Canada (Attorney General), 2013 BCCA 49, at para. 49. 238 Notes to pages 151–74

15 Manitoba Metis Federation v. Canada (Attorney General), 2013 SCC 14, especially paras 73–82.

chapter ten

1 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, art. 1, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March 1976, accession by Canada 19 May 1976); International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, art. 1, Can. T.S. 1976 No. 46, 6 I.L.M. 368 (entered into force 3 January 1976, accession by Canada 19 May 1976). 2 O’Sullivan, Erin. The Community Well-Being Index (CWB); Anderssen, “Canada’s Squalid Secret.” 3 Human Rights Committee, Concluding Observations on Canada, 65th Ses- sion, CCPR/C/79/Add.105 (7 April 1999) at para. 8. 4 Ibid.; Committee on Economic, Social and Cultural Rights, Concluding Observations on Canada, 57th Session, UN. Doc. E/C.12/1/Add.3.1 (4 Decem- ber 1998) at para. 18. 5 Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, 557. 6 Gnarowksi, ed., I Dream of Yesterday and Tomorrow, 73.

chapter eleven

1 Collier, Indians of the Americas, 176. 2 The right of Indians to vote in American elections was established by the Indian Citizenship Act of 1924. Despite the legal right, payment of poll taxes, literacy and culture tests, residence on a reservation, and other means have been used to deny the exercise of this right. 3 Government of Canada, Statement of the Government of Canada on Indian Policy, 11. 4 The term “Native” is used in Alaska, and in the Alaska settlement legislation, to include Indians, Aleuts, and Eskimos (both Iñupiat and Yup’ik). 5 Government of Canada, “Indian and Inuit Titles and Claims.” The Canadian government’s willingness to enter into resource royalty–sharing arrangements, through land claims agreements, was not in fact announced until 1986, when the government made a formal revision to its land claims policy. The amount cap, or time limit, as discussed in 1973, or “a reducing percentage of royalties generated,” were provided for in the 1986 policy; see Government of Canada, Comprehensive Land Claims Policy, 14. The 1992 Notes to pages 174–7 239

Gwich’in agreement was the first Canadian land claims agreement to include provisions for resource revenue sharing. Government of Canada, Comprehensive Land Claim Agreement between Her Majesty the Queen in Right of Canada and the Gwich’in, chap. 9. 6 Charlie Watt and Keith Crowe were the Northern Quebec Inuit Association representatives. Charlie Watt was the first president of the Northern Quebec Inuit Association and signed the James Bay and Northern Quebec Agree- ment in 1975. He was appointed to the Senate of Canada in 1984. Keith Crowe later served, for a period, as a federal negotiator on the Nunavut Inuit land claim. The date of the Alaska visit was confirmed for the author by Senator Watt’s office. 7 tfn was established in 1982 to represent Inuit of Nunavut in land claims negotiations with the Government of Canada. In 1993, following settlement of the Nunavut Inuit claim, tfn was dissolved and replaced by Nunavut Tunngavik Incorporated. 8 Information on the 1986 tfn visit to Alaska was provided to the author by Fred Weihs, a tfn staff member at the time, who accompanied the tfn Exec- utive on the trip. For a brief description of the tfn visit see Chance, The Iñu- piat and Northern Alaska, 214. 9 The term “Inuvialuit” refers to Inuit from the Mackenzie Delta–Beaufort Sea region of the nwt. 10 Morison, The Oxford History of the American People. 11 The term “Iñupiat” refers to Inuit from the northern region of Alaska, from Norton Sound to the Canadian border. 12 Chance, The Iñupiat and Arctic Alaska, 142 –6; Champagne, Native America, 234–5. 13 Chance, The Iñupiat and Arctic Alaska, 152. The Alaska Statehood Act was passed on 7 July 1958. The actual proclamation, officially admitting Alaska into the Union, was signed by President Eisenhower on 3 January 1959. 14 103 million acres. 15 Traditional activities such as hunting, fishing, trapping, and berry gathering. 16 Campbell and Cameron, “Constitutional Development and Natural Resources in the North.” 17 Wilkinson, Blood Struggle, 233–4. 18 Quoted in Arnold et al., Alaska Native Land Claims, 118. 19 Ibid. 20 Mitchell, Take My Land Take My Life, 189. 21 Ibid. 22 Ibid., 192–6. Hickel served as secretary of the interior, 1969–70. While he was in office, the Washington Post published a letter he wrote to President 240 Notes to pages 177–81

Nixon following the shooting deaths of four students taking part in an anti- war demonstration at Kent State University. Hickel criticized the government’s policies on Vietnam and Cambodia, and the lack of “appropriate concern for the attitude of … our young people.” Nixon decided to remove Hickel as secretary of the interior, but for various reasons did not do so until November 1970. Ibid., 384–5. 23 Ibid., 318–29. 24 Wilkinson, Blood Struggle, 234. 25 Chance, The Iñupiat and Arctic Alaska, 161–2. 26 Ibid., 163. 27 Quoted in Haycox, Alaska, 285. 28 Edwardsen Jr., “The New Harpoon.” 29 Arnold et al., Alaska Native Land Claims, 135. 30 Ibid., 144. Mitchell states that Nixon’s phone call to the afn delegates was pre-recorded, and that Nixon had in fact signed the bill before his call to the afn was placed. Nixon’s office had been informed of the debate in Anchorage, and Nixon had agreed to the telephone message instead of a formal signing ceremony; see Mitchell, Take My Land Take My Life, 492–3. 31 Village corporations could choose to be non-profit, but all opted for profit- making status. Chance, The Iñupiat and Arctic Alaska, 165. 32 Because the state government collected 90 per cent of federal lease revenues, the $500 million was paid primarily from state revenues. Harrison, “The Alaska Native Claims Settlement Act, 1971.” 33 Forty-four million acres. Four million acres of this amount comprised grave sites, historical sites, and other special lands, with restrictions on usage. 34 Arnold et al., Alaska Native Land Claims, 150. 35 Public Law 92–203, 92nd Congress, H.R. 10367, Dec 18, 1971, Section 4 (b). Printed in Arnold et al., Alaska Native Land Claims, 303. 36 For a discussion of some of the problems posed by the Alaska Native Claims Settlement Act and legislative amendments to correct these, see London, “The ‘1991 Amendments’ to the Alaska Native Claims Settlement Act.” 37 Chance, The Iñupiat and Arctic Alaska, 161; Champagne, Native America, 228–9; Worl, “The First Peoples of Alaska,” 40–1. 38 The Inuit Circumpolar Conference (today the Inuit Circumpolar Council) was established in 1977 to provide an international voice for Inuit from Greenland, Canada, Alaska, and (later) Siberia. The World Council of Indigenous Peoples was established on the initiative of George Manuel, president of the Canadian National Indian Brotherhood, in 1972, and operated as an international voice for Indigenous peoples until 1996. Notes to pages 181–6 241

39 The Mackenzie Valley Pipeline Inquiry was conducted from 1974 to 1977. Berger was a former leader of the opposition in the British Columbia Leg- islative Assembly and was counsel to the Nisga’a in the Calder case, dealing with Aboriginal title in British Columbia. He served on the Supreme Court of British Columbia from 1971 to 1983. See Berger, One Man’s Justice. 40 Berger, Northern Frontier, Northern Homeland, vol. 1, viii. 41 Berger, Village Journey,7. 42 Ibid., 6. 43 Ibid., 26. 44 Ibid., 116. 45 Ibid. 46 Chance and Zellen are exceptions. Chance, The Iñupiat and Arctic Alaska, 178; Zellen, Breaking the Ice, 24 –5. 47 Mitchell, Take My Land Take My Life, 506. 48 Ibid. 49 United States Government Accountability Office, “Regional Alaska Native Corporations,” 52–4. 50 Mitchell, Take My Land Take My Life, 507 (footnote). 51 Ongtooguk and Dybdahl, “Native Perspectives on Alaska’s History,” 34. 52 Mitchell, Take My Land Take My Life, 504 (footnote). 53 Linxwiler, “The Alaska Native Claims Settlement Act at 35,” 40. 54 Ibid., 49. See also Worl, “The First Peoples of Alaska,” 39. 55 Chance, The Iñupiat and Arctic Alaska, 173. 56 Ibid., 174–5. 57 North Slope Borough, “Budget 2014–15,” available at http://www.north- slope.org/information/budget-2014-15. 58 Zellen, 85–8. The possibility of secession from Alaska was raised at the 1992 Inuit Circumpolar Conference. Ibid., 88–9. 59 Alaska v. Native Village of Venetie Tribal Government et al., Supreme Court of the United States, No. 96-1577, 25 February 1998. 60 Trudeau, “Remarks on Aboriginal and Treaty Rights,” 331. 61 Government of Canada. “Indian and Inuit Titles and Claims,” Cab. Doc. 671/73. 62 For a comparative study of four Canadian land claims negotiations, see Alcantara, Negotiating the Deal. McPherson, New Owners In Their Own Land details the negotiation of the nlca. Molloy and Ward, The World Is Our Wit- ness deals with negotiation of the Nisga’a claim. 63 Government of Canada, Comprehensive Land Claim Agreement between Her Majesty the Queen in Right of Canada and the Gwich’in as represented by the Gwich’in Tribal Council, Clause 3.1.4. 242 Notes to pages 186–91

64 The 1975 jbnqa is remarkable among Canadian land claim agreements in having been negotiated over a two-year period. 65 See the views of a former attorney general for the province: Smith, Our Home or Native Land? 66 Hurley, “The Nisga’a Final Agreement,” 26; emphasis added. 67 The subsurface estate to Inuit-owned lands is held by Nunavut Tunngavik Incorporated, a non-profit corporation; surface title to Inuit-owned lands is held by three regional Inuit associations. 68 Government of Canada, Agreement between the Inuit of the Nunavut Settle- ment Area and Her Majesty the Queen in right of Canada, article 29. From the settlement moneys, Inuit were required to repay the Crown approximately $56.442 million (interest included) over nine years, comprising loan moneys advanced during the negotiating period. All amounts are in Canadian dollars. 69 The Naskapis of northern Quebec signed the Northeastern Quebec Agree- ment in 1978. 70 Indian bands, as defined in the Indian Act, are not corporate bodies. 71 Government of Canada, Comprehensive Land Claims Policy, 18. 72 Government of Canada, Comprehensive Land Claim Agreement between Her Majesty the Queen in Right of Canada and the Gwich’in as represented by the Gwich’in Tribal Council, chap. 5 and appendix B. 73 Ibid., Clause 5.1.6. Clause 3.1.5 states, “Nothing in this agreement shall be construed to affect … any aboriginal or treaty right to self-government which the Gwich’in may have.” 74 Government of Canada, Aboriginal Self-Government, 3. 75 Ibid., 8. 76 Ibid., 10. 77 Government of Canada, Nisga’a Final Agreement. 78 Government of Canada, Indian and Inuit Titles and Claims, Cab. Doc. 671/73, 3. The formulation implies that, as in Alaska, there could be legislative settlements that would not be based on written agreements. 79 Government of Quebec, The James Bay and Northern Quebec Agreement (jbnqa), section 2.1. 80 James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976- 77, c. 32, s. 3. Analogous provisions were provided for in the 1984 Inuvialuit Final Agreement and settlement legislation: Government of Canada, Inu- vialuit Final Agreement, s. 3(4) and Western Arctic (Inuvialuit) Claims Settle- ment Act, S.C. 1984, c. 24, s. 3. 81 Government of Canada, Comprehensive Land Claims Policy, 12. 82 Ibid. Notes to pages 191–3 243

83 Government of Canada, Nisga’a Final Agreement, chapter 2, section 23. 84 See Baker, The Alaska Native Claims Settlement, 51–2; Berger, Village Journey, 26–7, 31–3, 39–41, 103; Chance, The Iñupiat and Arctic Alaska, 103–4; Mitchell, Take My Land Take My Life, 507–10. 85 Zellen, Breaking the Ice, 7. 86 Stephen Vail and Graeme Clinton, Nunavut Economic Outlook, 7–8. 87 Wilkinson, Blood Struggle, 240. 88 Zellen, Breaking the Ice, 7. 89 On implementation of the jbnqa, see Moss, “The Implementation of the James Bay and Northern Quebec Agreement.” On implementation of the nlca see Campbell, Fenge, and Hanson, “Implementing the 1993 Inuit Land Claims Agreement.” 90 Berger, Village Journey, 187. This page intentionally left blank 3

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Contributors

jim aldridge, QC, is a member of the Vancouver law firm Aldridge and Rosling and is a member of the British Columbia Bar. Jim has represented the Nisga’a Nation in treaty negotiations since 1980 and was lead counsel during most of that time. He continues to act for the Nisga’a Lisims Govern- ment as general counsel. Jim is also a member of the legal team that represented the Manitoba Métis Federation in its legal action in respect of Métis land rights under the Manitoba Act, 1870, and more recently he has assisted with the lawsuit brought by Nunavut Tunngavik Incorporated against the federal Crown for breach of the Nunavut Land Claims Agreement. colin g. calloway received his BA and PhD degrees from the University of Leeds in England. He has taught at the College of Ripon and York St. John in England, at Springfield High School in Vermont, and at the University of Wyoming. He has also served as editor/assistant director of the D’Arcy McNickle Center for American Indian and Indigenous Studies at the New- berry Library in Chicago. At Dartmouth College he is the John Kimball Jr. 1943 Professor of History and professor of Native American studies. He served four consecutive three-year terms as chair of the Native American Studies Pro- gram. He was president of the American Society for Ethnohistory in 2007–08, has been given awards by the Missisquoi Nation of Abenakis and the Native American Students at Dartmouth, and was selected for the American Indian History Lifetime Achievement Award in 2011. alastair campbell is a senior policy advisor at Nunavut Tunngavik Incor- porated (nti) and has worked for nti in various capacities since 2002. Previ- ous work includes for the Government of the Northwest Territories, the Department of Indian Affairs and Northern Development (diand), and the 262 Contributors

Assembly of First Nations. He was honoured at the Grassy Narrows Powwow in 1986, awarded the Deputy Ministers’ Outstanding Achievement Award at diand in 1993, and awarded the Treasury Board Award of Excellence in 1994. He holds a BA in history and anthropology from the University of Otago, an MA in anthropology from the University of British Columbia, and a post- graduate diploma in semiotics from the University of Urbino. He has taught occasional courses in anthropology and sociology at the University of Ottawa and at Athabasca University. grand chief matthew coon come is a national and international Indigenous leader and advocate for the aboriginal, treaty, and other human rights of Indigenous peoples in Canada and internationally. He was first elected as grand chief of the James Bay Cree Nation of Eeyou Istchee in 1987, and was re-elected to his sixth term as grand chief in 2013. Matthew was also national chief of the Assembly of First Nations from 2000 to 2003. He is known for his work in Canada and internationally to defend the fundamental rights of Indigenous peoples, including the right of self-determination, and for leading the successful international fight by the Crees against the Great Whale hydroelectric megaproject. terry fenge is an Ottawa-based consultant specializing in Aboriginal, environmental, and Arctic issues. He has been executive director of the Canadian Arctic Resources Committee, strategic counsel to the president of the Inuit Circumpolar Conference, and from 1985 to 1992 was research director and senior negotiator of the Tungavik Federation of Nunavut, the Inuit organization that negotiated the 1993 Nunavut Land Claims Agreement. He currently assists Nunavut Tunngavik Inc.’s participation in the Land Claims Agreements Coalition. With degrees from the universities of Wales, Victoria, and Waterloo, Dr. Fenge has published more than seventy-five papers and book chapters, and authored or edited six books and monographs. j.r. miller, Canada Research Chair in Native-Newcomer Relations and professor of history at the University of Saskatchewan, is a specialist in the history of relations between Indigenous and immigrant peoples in Canada since the sixteenth century. His research focuses particularly on policy issues, emphasizing governmental and church initiatives directed at Aboriginal peoples, and Indigenous peoples’ reaction to and resistance against those policies. In addition to numerous books, book chapters, and articles on a variety of themes in Native-newcomer history, his work on policy has been particu- Contributors 263 larly noteworthy on the topics of residential schools and treaties. Miller’s work has earned numerous awards and other forms of recognition, such as the 1997 J.W. Dafoe Prize. In 1998, he began a six-year term on the governing council of the Social Sciences and Humanities Research Council of Canada. Most recently, Miller was the recipient of the sshrc Gold Medal for Achieve- ment in Research for 2010, and in 2011–12gave the Governor General Lec- ture Series on the history of treaty making at six universities from Halifax to Vancouver Island for the Royal Society of Canada. He received the Queen Elizabeth II Diamond Jubilee Medal in 2012. ghislain otis is a member of the Quebec bar and the Royal Society of Canada. He holds a PhD in law from the University of Cambridge, which awarded him the Yorke Prize for legal essays for his comparative study of constitutional remedies. Professor Otis is currently at the civil law section of the University of Ottawa where he holds the Tier 1 Canada Research Chair on Legal Diversity of Indigenous Peoples. He has directed and co-authored several books on Indigenous peoples and legal pluralism. The most recent ones are Cultures juridiques et gouvernance dans l’espace francophone (Archives acadé- miques, Paris, 2010); Le juge et le dialogue des cultures juridiques (Karthala, Paris, 2013); Gouvernance autochtone et fédéralisme/Aboriginal Governance and Federal- ism (Presses de l’Université Laval, Québec, 2013); L’adoption coutumière autochtone: les défis du pluralisme juridique (Presses de l’Université Laval, Québec, 2013) and Méthodologie du pluralisme juridique (Karthala, Paris, 2012). Profes- sor Otis is the director of a major international research partnership funded by the Social Sciences and Humanities Research Council of Canada and the Agence universitaire de la Francophonie. The project brings together academic and Indigenous researchers from seven countries to work on a comparative study of the management of legal pluralism in post-colonial states. brian slattery is a professor of law at the Osgoode Hall Law School, York University, where he teaches and writes in the areas of constitutional law, Indigenous rights, criminal law, and legal theory. He is a graduate of Loyola College (Montreal), McGill University, and Oxford University, where his doc- toral dissertation dealt with the legal basis for Indigenous land rights in Canada and the Royal Proclamation of 1763. He has numerous publications on Aboriginal and treaty rights and the history of Indigenous relations with the Crown. In other scholarly work, he has explored the philosophical foundations of human rights and the continuing vitality of the natural law tradition. Before joining the faculty at Osgoode Hall in 1981, he worked for six 264 Contributors years in Tanzania, initially as a cuso volunteer and later at the University of Dar es Salaam. He also served for several years as research director of the Native Law Centre at the University of Saskatchewan. More recently, he acted as a senior advisor to the federal Royal Commission on Aboriginal Peoples. He was elected to the Royal Society of Canada in 1995 for his contributions to the law relating to Aboriginal rights. In 2008, he was named a Distin- guished Research Professor at York University. mark d. walters teaches law at Queen’s University. He received a BA (political science) from the University of Western Ontario in 1986, an llb from Queen’s University in 1989, and a DPhil (in law) from Oxford University in 1996. He was called to the bar in Ontario in 1995. He practised law briefly with the firm of Lerners in Toronto, where he worked on Aboriginal rights and treaty claims, before commencing his academic career in Oxford, where he taught law at Merton College and New College. In 1999, he joined the Faculty of Law at Queen’s. He was granted tenure and was promoted to associate professor in 2002, and in 2008 he was promoted to full professor. He served as associate dean in the Faculty of Law between 2008 and 2010. Pro- fessor Walters researches and publishes in two related legal fields: the rights of Indigenous peoples, with a particular emphasis on historical perspectives, and theories of legality in common law jurisdictions, also with an emphasis on history and the history of ideas. He has published articles in leading peer- reviewed journals in Canada, as well as book chapters in volumes published by leading university presses. In 2013, he was an H.L.A. Hart Fellow at Uni- versity College, Oxford, and a Herbert Smith Freehills Visitor in the Faculty of Law at Cambridge University. His research in the area of Aboriginal rights has been funded by grants from the Social Sciences and Humanities Research Council of Canada, and in 2006 he was awarded the Canadian Association of Law Teachers Award for Academic Excellence. 3

Index

Page numbers in italics refer to figures and illustrations.

Abella, Rosalie (Justice), 218n8 Algonquin Nation, 5, 7 Abenaki Nation, 87 American Revolution, 4, 5, 43–4, 59, Aboriginal Secretariat of the Privy 91 Council Office, 127, 128, 235n43 Amherst, Sir Jeffrey, 21, 36, 37, 38 Acadia, 86, 87 Anadabijou (Chief), 84 Agreement on Governance in the Anderson, T.G., 95 Eeyou Istchee James Bay Terri- Appalachian Mountains, 38 tory, 170 Arctic Slope Native Association Ahtna, Incorporated, 183 (ASNA), 178, 181, 183 Alaska Federation of Natives (AFN), Arctic Slope Regional Corporation, 176, 177, 178–9, 181, 240n30 183 Alaska Highway, 175 Assembly of First Nations, 135 Alaska Land Transfer Acceleration Atkin, Edmond, 55, 56 Act (2004), 183 Atlantic Richfield Company, 184 Alaska National Interest Lands Attu Island, 175 Conservation Act (1980), 180 Auditor General of Canada, 126–7, Alaska Native Claims Settlement 129, 133, 137 Act (ANCSA; 1971), 6, 173–85, Austin, John, 63 189–90, 191–3, 233n6, 238n4 Australia, 63, 196, 234n27 Alaska Native Review Commission, Axworthy, Lloyd, 145 181 Alaska Statehood Act (1958), 176, Banner, Stuart, 39 183, 239n13 Barton, Charles, 139 Alberta, 100, 107, 135, 145, 196 Bentham, Jeremy, 63 Aldridge, Jim, 5, 138–52, 194–8, 237 Berger, Thomas (Justice), 181–2, Aleut people, 238n4 193, 241n39 266 Index

Binnie, Ian (Justice), 30 Cabinet Committee on Aboriginal Borrows, John, 40, 67 Peoples, 127, 128 Boston, Treaty of (1725), 87 Calder, Frank, 102, 108, 142 Bouquet, Henry (Colonel), 36 Calder v. British Columbia: counsel to Bourassa, Robert, 154, 155–6, 161 the Nisga’a in, 241n39; influence Boyd, John Alexander (Chancellor), on government policy, 108, 195; as 60, 61, 64 legal precedent, 102; and lower BP (British Petroleum) plc, 184 courts, 237n10; and the meaning Braddock, Edward (General), of “existing,”146, 237n12; and Nis- 34–5 ga’a Treaty (1998), 118; reception Britain: and American Revolution, in Australia and New Zealand, 33–4, 43–4; relationship with 234n27; on status of Royal Procla- First Nations, 19–20, 34–40, 42–4, mation in BC, 142–3, 220–1n45, 75–8, 86–96; relationship with 223–4n6, 227nn46–7 French people of Canada, 70–4; Calloway, Colin G., 4–5, 33–48, 51 in Seven Years’War, 34–7 Campbell, Alastair, 6, 173–93 British Columbia: and Alaska settle- Canada: failure to honour interna- ment, 174; and doctrine of dis- tional agreements, 164–5; inde- covery, 76; and Indian Act, 107; pendence, 28; legal foundation, 7; lack of negotiated treaties, 27, as a “Métis civilization,”3; per- 107, 142, 186, 195; ongoing nego- centage of land under modern tiations, 105, 185; opposition to treaties, 3, 105, 195; suits brought pipeline proposals in, 135; rever- against, 156, 158–9; in UN quality sal of position on treaty making, of life index, 164. See also Consti- 118; and Royal Proclamation of tution Act of 1982; government 1763, 58, 65, 143, 227n47; and policies; Supreme Court of section 35 of 1982 Constitution, Canada; individual provinces 145–6; treaties concerning, 100, Canadian Arctic Resources Com- 148–9 mittee (CARC), 112, 232n1 British Columbia Court of Appeal, Cape Breton Island, 17, 86 143, 144, 146, 149 Cardinal, Harold, 108 British Columbia Treaty Commis- Carleton, Guy (governor of Que- sion, 103, 113, 118 bec). See Dorchester, Guy British North America Act (1867), Carleton, Baron 62 Champlain, Samuel de, 84 Broadbent, Ed, 145 Chance, Norman A., 178, 241n46 Buchanan, Judd, 154 Charest, Jean, 170 Bureau of Indian Affairs (BIA), 174, Charlottetown Accord (1992), 119, 178 123, 187 Index 267

Cherokee Nation, 19, 42, 43, 45 Council of Yukon First Nations, Chrétien, Jean, 106, 108, 122, 145, 234n23 154, 235n35 Court of Common Pleas, 71, 72 Ciaccia, John, 154 Covenant Chain, 25, 64, 67, 227n45 Clark, Glen, 148, 149 Crawford, William, 41 Clarkson, Adrienne, 137, 198 Cree-Naskapi (of Quebec) Act Cold War, 175 (1984), 188, 189 Collier, John, 173 Cree Nation: fight to stay in Comprehensive Claims Coalition Canada, 162–4; government (CCC), 114–16, 117, 125, 234n23 authorities, 155, 169–71, 188; Comprehensive Land Claims Policy influence on Land Claims Agree- (1973): and Alaska settlement, ments Coalition, 128; interna- 174, 233n6; announcement of, tional efforts to obtain justice, 106, 108–9; as forerunner of In 158, 160, 164–5; lands, 153; new All Fairness, 147; and James Bay agreements with Canada, 166–9; Cree, 143; and surrender and opposition to hydroelectric pro- conveyance of land, 190; and jects, 102, 108, 143, 155–7, 160–2; White Paper of 1969, 185. See also and self-government, 155, 158. See government policies also James Bay and Northern Confederation, 7, 14, 26, 29, 32, 96, Quebec Agreement (JBNQA; 1975) 106 Croghan, George, 42 Conseil Attikamek-Montagnais, Crombie, David, 112, 115 234n23 Cromwell, Thomas (Justice), 218n8 Constitution Act of 1867, 27, 28 Crowe, Keith, 239n6 Constitution Act of 1982: and Cuomo, Mario, 161 Aboriginal policy, 111, 155; and Canada’s independent status, 28; Dancosse, Guy, 234n21 Charter of Rights and Freedoms, Davie, Alexander, 139–40 32, 50–1, 65, 122, 144–5; and the Declaration of Dedication and honour of the Crown, 16, 29; Commitment (2006), 128, 131, and Royal Proclamation of 1763, 135 7, 12, 32, 50–1, 66; three basic Delaware Indians, 35, 45 compacts of, 221n50. See also Demers, Clovis, 112 Section 35, Constitution Act of Dene Nation, 234n23 1982 Denning, Alfred Thompson, Baron, Cook Inlet Region, Inc., 183 51, 226n42 Coolican, Murray, 112–13, 234n21 Department of Aboriginal Affairs Coon Come, Matthew (Chief), 5, and Northern Development 153–72 Canada (AANDC), 132 268 Index

Department of Indian Affairs and Environment Canada, 235n43 Northern Development (DIAND): Exchequer Court, 141 and 1986 claims policy, 115; Eyford, Douglas, 135 Auditor General’s report on, 126–7; and Comprehensive Family Compact, 95 Claims Coalition, 128; and Cooli- Federal Policy for the Settlement of can task force, 113; discussions Native Claims (1993), 121–2 with First Nations, 235n43; as Federal Steering Committee on distinguished from the Crown, Self-Government and Compre- 125, 150; evaluation of agreement hensive Claims, 132 impacts, 131; implementation Fenge, Terry, 6, 105–37, 194–8, failures, 129, 130 232n1 Department of Justice, 235n43 Finnmark Act (2007), 196 Deschamps, Marie (Justice), 221n50 First Nations: approach to treaty Diamond, Billy, 154 and trade relationships, 83–5, 91, Dickson, Brian (Chief Justice), 66 93, 97–9, 100–1, 231n6; and Char- Diefenbaker, John, 107 ter of Rights and Freedoms, 50–1, District of Columbia District 122, 144–5; as legal “children,”93, Court, 177 98, 99, 104; proselytization Doering, Ronald, 112 among, 82, 83; reconciliation Dominica, 17 with, 79–80, 81; relationship with Dorchester, Guy Carleton, Baron, Britain, 19–20, 34–40, 42–4, 75–8, 72, 93 86–96; relationship with the Doyon Limited, 183 French, 20, 69, 74–5, 85–6, 87, Duncan, John, 134 231n8; relationship with United States, 34, 44–8; role in defence East Florida, 17, 18, 19, 23, 38, 39 of British territories, 11; trade Easton, Treaty of (1758), 35–6 with and among, 81–3; and US Edwardsen, Charles, Jr., 178 Native Americans, 174. See also Eeyou Istchee, 128, 153–72 Nisga’a Nation; Section 35, Con- Eeyou Marine Region Land Claims stitution Act of 1982; self-govern- Agreement (2010), 169, 191 ment Egremont, Charles Wyndham, Earl Fisheries and Oceans Canada, of, 21, 22, 37–8, 220n33 235n43 1812, War of, 59, 91 Forbes, John (General), 35 Eisenhower, Dwight D., 239n13 Fort Detroit, 21, 37 Elizabeth II, Queen of Great Fort Duquesne, 34–5, 36, 37 Britain, 111 Fort Niagara, 21, 37 Ellis, Henry, 37 Fort Pitt, 21, 37 Index 269

Fort Stanwix, Treaty of (1768), 42–3, Grenadines, 17 44, 47 Gurney, Arthur, 139 Framework for the Management of Gwich’in Comprehensive Land Modern Treaties, 132 Claim Agreement (1992): and France: and the fur trade, 82; North extinguishment issue, 191; histor- American territories, 17, 37, ical context, 118; and parliamen- 220n27, 229n3; relationship with tary procedure, 186; provisions First Nations, 20, 69, 74–5, 85–6, for self-government, 124, 188–9, 87, 231n8 242n73; report on impacts of, Franklin, Benjamin, 34 131; and resource revenue shar- French and Indian War. See Seven ing, 238–9n5 Years’War Gwich’in Tribal Council (GTC), 125, Frontenac, Louis de Buade, comte 235n43 de, 85 Haldimand, Frederick, Sir, 44 George III, King of Great Britain, Halifax, 88 36, 38, 43, 75, 106 Halifax, George Montagu-Dunk, Georgia, 17, 18, 21 Earl of, 38 Gosnell, Joseph, 148, 149 Hall, Emmett M. (Justice), 4, government policies: Aboriginal 220–1n45 Self-government (1995), 123–4, Harper, Stephen, 127–8 189, 195; In All Fairness (1981), Henry, Patrick, 41 110–12, 116, 147; Comprehensive Hickel, Walter, 176–7, 239–40n22 Land Claims/Blue Book (1986), Hillsborough, Wills Hill, Earl of, 38, 116–17, 135, 143, 188, 190–1, 225n24 238n5; and Constitution Act of Honouring the Spirit of Modern 1982, 111, 155; Settlement of Treaties: Closing the Loopholes, Native Claims (1993), 121–2. See 129–30 also Comprehensive Land Claims House of Commons Standing Policy (1973) Committee on Aboriginal Affairs Grand Council of the Crees, 128, and Northern Development, 235n43 133–4, 158–9 La Grande hydropower project, 102, Hudson’s Bay Company (HBC), 18, 108, 109, 155–7 23, 76, 96, 97, 98 Great Whale Project, 160–2, 167 Humble Oil and Refining Co., Greenland, 240n38 184 Greenpeace, 161 Hunt, Connie, 234n21 Greenville, Treaty of (1795), 47, 48 Huron Nation, 45 Grenada, 17, 19, 38, 54 Hydro-Québec, 156, 162 270 Index

Idle No More movement, 134–5, Iñupiat people, 175, 184, 238n4, 197 239n11 Illinois, 45, 48 Inuvialuit Final Agreement (1984), Indiana, 45, 48 129, 131, 186 Indian Act (1876): and JBNQA, 188, Inuvialuit people, 109, 174, 239n9 190; 1927 amendment, 107, 142; Inuvialuit Regional Corporation, and prior treaties, 99, 104; and 235n43 specific claims, 103, 111 Iroquois Confederacy, 19, 34, 35, Indian Claims Commission (US), 42–3, 45, 46 173, 233n6, 233–4n15 Irwin, Ron, 235n35 Indian Reorganization Act (US; 1934), 178, 182, 184 James Bay and Northern Quebec Indian Trade and Intercourse Act Agreement (JBNQA; 1975): and (1790), 46 the Alaska settlement, 174; and Innu Nation, 58, 84, 102, 109 Calder decision, 143; funding for, International Covenant on Civil 166–7; and modern treaty mak- and Political Rights, 164, 165 ing, 103, 188; negotiation of, 102, International Covenant on Eco- 109, 153, 155–7, 239n6; non- nomic, Social and Cultural implementation of, 157–60, 168; Rights, 164, 165 surrender and conveyance of International Monetary Fund (IMF), land in, 190 122 James Bay Cree. See Cree Nation International Water Tribunal, 161 Jamésien communities, 170 Inuit Circumpolar Conference, 181, Jamieson-Clark, Lynn, 234n21 240n38, 241n58 Japan, 175 Inuit people: and Alaska Natives, Jefferson, Thomas, 4, 41 174; Canada’s failure to uphold John Paul II, Pope, 158 obligations to, 134; goal of self- Johnson, Earl (Justice), 134 determination, 124; international Johnson, Sir William: on Aboriginal representation, 240n38; and lands, 228n57; aptitude for “forest JBNQA, 102, 188; and 1973 policy diplomacy,”85, 91; and later announcement, 108–9; and interpretations of law, 66; and Nunavut Agreement, 187; oppo- Royal Proclamation of 1763, 56, sition to hydroelectric projects, 57, 64, 90–1; and Treaty of Fort 108, 161; reaction to 1986 land Stanwix (1768), 42; and Treaty of claims policy, 117; subsurface vs. Niagara (1764), 13, 25, 40, 90–1 surface title in lands owned by, Johnston, David, 4, 7–9 242n67 Iñupiat Paitot, 175 Kadlun, Bob, 232n1 Index 271

Karakatsanis, Andromache (Justice), 27–8, 31, 77, 218nn14, 16; Johnson 14, 218n8 v. McIntosh, 47–8, 63, 224n16, Kaska-Dena Council, 234n23 228–9n57; Mabo v. Queensland Kativik Regional Government, 188 (No. 2), 196; Manitoba Métis Fed- Kativik School Board, 188 eration Inc. v. Canada, 14, 15–16, Kelowna Accord (2005), 127, 128 26–7, 28, 29, 30; Meares Island Kentucky, 42, 43, 45 (MacMillan Bloedel v. Mullin), Ketzler, Alfred, 178 237n10; Mohegan Indians v. Con- Kiska Island, 175 necticut, 55–6; R. v. Côté, 79; R. v. Knox, Henry, 45 Marshall; R. v. Bernard, 65, 89, 228n51; R. v. McMaster et al., Labrador, 105, 107, 185, 195 226n42; R. v. Sioui, 74; R. v. Spar- Labrador Inuit Agreement (2004), row, 66, 237nn10, 12; St. Cather- 124, 191 ine’s Milling & Lumber Co. v. The Labrador Inuit Association, 234n23 Queen, 60–4; Tsilhqot’in Nation v. La Forest, Gérard (Justice), 66 British Columbia, 135–6, 195, Lamer, Antonio (Chief Justice), 55 220n37, 221–2n70, 228n51. See Lancaster, Treaty of (1744), 34 also Calder v. British Columbia Land Claims Agreements Coalition: legal doctrines: discovery, 12–13, 48, Bernard Valcourt and, 10, 13, 75–8; honour of the Crown, 134–5; formation and goals, 14–32, 66, 67, 128, 130, 195, 125–6, 150, 193, 197–8; model 218n14; laches, 15; terra nullius, policy, 131–2, 134–5; ongoing 22, 76, 196 negotiations, 5–6; in senate com- Liberal Party of Canada, 147–8 mittee’s recommendations, 130; Liberal Party of Quebec, 162 symposium, 4; ten-point declara- Linxwiler, James D., 183 tion, 128, 131; website, 235n37 Living Treaties, Lasting Agreements, Landry, Bernard, 166 113, 115, 117 LeBel, Louis (Justice), 218n8, Los Angeles Times, 177 228n51 Louisbourg, 86 Lee, Arthur, 41 legal cases: Beckman v. Little Maa-Nulth First Nations Final Salmon/Carmacks First Nation, 30, Agreement (2007), 191MacKen- 221n50; Campbell v. Hall, 54–5, zie Valley, 105, 107, 195 58; Chippewas of Sarnia Band v. MacKenzie Valley Dene/Métis Canada, 67; Connolly v. Woolrich, Agreement, 118 20; Delgamuukw v. British Colum- MacKenzie Valley Pipeline Inquiry bia, 143, 224n12, 227n47; Haida (1974–77), 181, 241n39 Nation v. British Columbia, 14, McDougall, William, 95–6 272 Index

McKnight, Bill, 115–16 Mitchell, Bob, 112 McLachlin, Beverley (Chief Justice), Mitchell, Donald, 182, 240n30 14, 66–7, 218n8 Mobil, 184 McRuer, James Chalmers (Justice), modern treaties, 105–37; “certainty” 226n42 as objective in, 110, 117, 122, Magna Carta (1215), 50, 65 143–4, 159, 185, 191; government Makivik Corporation, 235n43 policies on, 106, 107–9, 110–14, Maliseet Nation, 87, 107 116–17, 121–4, 185–91; historical Malouf, Albert (Justice), 156, 157 background, 106–7; implementa- Manitoba, 96, 102, 185 tion, 10–11, 120, 124–32, 136–7, Manitoba Act (1870), 14, 27, 28, 30, 193, 235n43; legislative ratifica- 96 tion, 186–7; and 1973 compre- Manitoulin Island, 91–2 hensive claims policy, 233n6; and Manitoulin Island Treaty (1862), 92, Office of Native Claims, 102–3; 94, 95–6, 103 ongoing negotiations, 105, 185; Mansfield, William Murray, Earl of proportion of Canadian territory (Chief Justice), 54 under, 3, 195; and Royal Procla- Manuel, George, 240n38 mation of 1763, 12, 171–2. See also Maritimes, 58, 81, 105, 107 Gwich’in Comprehensive Land Marshall, John (Chief Justice), 48 Claim Agreement (1992); James Martin, Paul, 127 Bay and Northern Quebec Agree- Mascarene’s Treaty (1726), 87–8 ment (JBNQA; 1975); Nunavut Mathias, Joe, 234n21 Land Claims Agreement (1993) Meech Lake Accord (1987), 74, 118, Mohawk Nation, 118 123 Moldaver, Michael (Justice), 218n8 Merritt, John, 112 Montagnais people, 58, 84, 102, 109 Métis people: and Manitoba Act Montreal, 36, 70 (1870), 14, 26–7, 28; resistance to Morison, S.E., 175 Canadian rule, 96; role in Morris, Alexander, 99 defence of British territories, 11 Moses, Ted, 166 Miami Nation, 45 Mulroney, Brian, 112, 115, 118, 119, Michigan, 45 123 Michilimackinac, 37, 41 Munro, John, 110 Mi’kmaq Nation, 19, 86, 87, 88–9, Murray, James, 71 107, 231n8 Miller, J.R., 3, 5, 81–104 NANA Regional Corporation, 183 Minavavana (Chief), 20 Naskapi Nation, 109, 188, 242n69 Mississauga Nation, 91 National Indian Brotherhood, Mississippi Company, 41 240n38 Index 273

Neets’aii Gwich’in Village, 184 treaties concerning, 100, 107; Neolin (prophet), 37 modern treaties in, 143, 186; and New Brunswick, 26 Nunavut Act, 124; ongoing nego- New Democratic Party (NDP), 144, tiations in, 105, 185 145 Northwest Territory Métis Nation, Newfoundland, 17, 19 234n23 New France, 69, 85–6 Norway, 196 New Relationship Agreement, 168 Nottaway-Broadback-Rupert Pro- New Republic (journal), 178 ject, 167–8 New York Times, 177 Nova Scotia, 17, 18, 19, 26, 87, 88–9 New Zealand, 234n27 numbered treaties, 97–102; land- Niagara, Treaty of (1764), 12, 13, and-cash basis, 111, 142; maps, 24–5, 40, 67, 76 97, 101; neglect of negotiating Nisga’a Land Committee, 140 protocols, 103–4; and surrender Nisga’a Nation: chairmanship of of land, 190; Treaty 4 (1874), Land Claims Agreements Coali- 97–8; Treaty 6 (1876; 1889), 99; tion, 125; and Comprehensive Treaty 8 (1899), 100, 108; Treaty 9 Claims Coalition, 234n23; and (1905), 100–1; Treaty 10 (1906), constitutional process, 144–8; 100; Treaty 11 (1921), 100, 108 1913 petition, 138–42, 148, Nunavik Inuit Land Claims Agree- 207–15; and Paul Martin government Act (2008), 191 ment, 235n43; self-government, Nunavut, 169, 185, 187, 192 189. See also Calder v. British Nunavut Act (1993), 124, 187 Columbia Nunavut Agreement Implementa- Nisga’a Treaty (1998), 5, 103, 118, tion Plan (1993–2003), 125 138–52, 186–7, 189, 191 Nunavut Agreement-in-Principle Nixon, Richard M., 176, 178–9, (1990), 118, 120 239–40n22, 240n30 Nunavut Court of Justice, 128, 134 Norman Wells, 100 Nunavut Land Claims Agreement North Carolina, 18, 21 (1993): as comprehensive claims Northeastern Quebec Agreement settlement, 103; persons involved (1978), 102, 103, 109, 131, 242n69 in negotiating, 232n1, 239n6; rat- Northern Quebec Inuit Association, ification and implementation, 174, 239n6 118, 123, 124, 125, 128, 186; stipu- North Slope Borough, 174, 183, 184 lations, 121, 174, 187, 191 Northwest Arctic Borough, 184 Nunavut Trust, 187 Northwest Ordinance of 1787, 45–6 Nunavut Tunngavik Inc. (NTI): Northwest Territories (NWT): and chairmanship of Land Claims Alaska settlement, 174; historic Agreements Coalition, 125–6; in 274 Index

discussions with government, Pisquetomen (Chief), 35 235n43; and implementation of Pitt, William, Earl of Chatham (the agreements, 125, 127, 128, 133, Elder), 36 134; replacing Tungavik Federa- Plan Nord, 170 tion of Nunavut, 239n7; title to Point Hope, 175 subsurface estate of Inuit lands, Pontiac (Chief), 20, 37, 76, 89 242n67 Pontiac’s War, 20–1, 37, 56, 59, 89 Post, Christian Frederick, 35 Odawa Nation, 36, 45 Potawatomi Nation, 45 Office of Native Claims (ONC), 102 Potts, Robert, 5 Ohio, 34–5, 45, 47 Powell, Israel, 139–40 Ohio Company, 34, 36, 41 Prince Edward Island, 17 Ojibwa Nation, 36, 41, 45 Privy Council Office, 127, 128, 130, Oka Crisis (1990), 118, 197 141, 235n43 Okalik, Paul, 232n1 Progressive Conservative Party, O’Meara, Arthur, 140, 142 127–8, 145, 147 Ontario: Algonquin land in, 7; and Project Chariot, 175 Quebec Act (1774), 60, 64; and Prudhoe Bay, 177, 183–4 Royal Proclamation of 1763, 58; treaties and treaty making in, Quassa, Elisapee, 123 91–2, 97, 100, 101–2, 105, 185, Quassa, Paul, 120, 123, 232n1 195 Quebec: authorization to grant Ontario Court of Appeal, 67 land, 39; Catholic Church in, 71; O’Reilly, Peter, 139 creation by Royal Proclamation Otis, Ghislain, 5, 69–80 (1763), 17, 38, 69; and the Cree Nation, 155–7, 158, 160–4, Paix des Braves (2002), 166–8 166–8, 169–71; effect of Indian Paris, Treaty of (1763), 16, 37, 41, 52, Act (1876) on, 107; effect of 70, 89, 220n27 Royal Proclamation (1763) on, Paris, Treaty of (1783), 4, 43–4, 106 19, 23, 58, 59, 60, 64, 69–80; Parizeau, Jacques, 162 hydroelectric projects, 102, 108, Parti Québécois (PQ), 119, 162–4 109, 155–6, 160–2, 167–8; Indige- Passamaquoddy Nation, 87 nous lands in, 38–9, 60, 75–9, Patterson, Dennis, 120 153, 230n35; map, 18; and patria- Pearson, Lester B., 107 tion of the Constitution, 145; Penikett, Tony, 137 separatist movement, 119, 162–4; Pennsylvania, 34, 35, 42 treaties and treaty making in, Penobscot Nation, 87 105, 143, 185, 195; and Trudeau, Piankeshaw Nation, 45 107 Index 275

Quebec Act of 1774, 19, 43, 59, context, 7–9, 16–24, 38, 56, 89; 60–1, 64, 71, 226n42 and the honour of the Crown, Quebec City, 70 14, 15–16, 30, 66, 67, 150, 152; as “Indian Magna Carta,”4, 50, 52, Reform Party, 186 65, 220–1n45, 223–4n6, 227n46; resource development and exploita- legal status of, 52–9, 64–5; and tion: Aboriginal attitudes to, post-colonial Canada, 29; provi- 167–8; in Alaska, 175–6, 177, 178, sions for First Nations, 21–4, 180, 183–4; in breach of Royal 38–9, 53–4, 78–9, 89–90, 106; Proclamation, 94; in 1986 land repeal by Quebec Act (1774), claims policy, 117; revenue-shar- 60–1, 64, 226n42; stipulations, ing arrangements, 238–9n5; and 16–19, 21–4, 38–40, 47, 52–3; and treaty making, 91–2, 100, 102, subsequent treaty making, 4, 120–1, 170, 187 11–13, 81, 140, 195; text, 201–6, Roach, Wilfrid Daniel (Justice), 217n4; and the United States, 4, 226n42 5, 43, 46, 48; as unwritten ethic, Robertson, Eric, 49, 68 59–68, 171–2 Robinson, W.B., 95, 96 Rupert Diversion Project, 167 Robinson Huron Treaty (1850), Rupert’s Land, 19, 96 91–2, 94, 100, 103 Russell, Peter, 234n21 Robinson Superior Treaty (1850), Russian Empire, 175 91–2, 94, 100, 103 Ryan, John, 139 Robson, John, 139 Roosevelt, Franklin D., 173 Sadeganaktie (Sachem), 32 Rothstein, Marshall (Justice), Sahtu Dene and Métis Comprehen- 218nn8, 15 sive Land Claim Agreement Royal Commission on Aboriginal (1993), 118, 124, 131, 189, 191 Peoples (RCAP), 7, 119, 122, 123, Saint Vincent, 17 155, 165, 195 Sami people, 196 Royal Proclamation of 1763: Abo- Saskatchewan, 100, 135 riginal attitudes to, 49–50, 67–8, Saul, John Ralston, 3 138; applicability in British Sault Ste. Marie, 94 Columbia, 227n47; attempts to Scholtz, Christa, 108 reform, 56–7; and Canadian Con- Scott, Duncan Campbell, 141 stitution, 7, 12, 32, 49–68; Crown Sealaska Corporation, 183 breaches of, 94, 96; and doctrine Section 35, Constitution Act of of discovery, 75–8; effect on 1982: attempts to remove, 145–6; French people of Canada, 19, 23, constitutionalization of Aborigi- 58, 59, 60, 64, 69–80; historical nal rights through, 163; and dis- 276 Index

covery logic, 77, 78; and former Strahl, Chuck, 132 French territories, 79; and hon- Strong, Samuel (Justice), 60–1, 63, our of the Crown, 27, 31; and 65 Nisga’a Treaty, 191; and Royal Stuart, John, 42 Proclamation of 1763, 50, 104; Supreme Court of Alaska, 180 and self-government, 147, 188–9; Supreme Court of British Colum- text, 219n18 bia, 142, 241n39 self-government: and the 1986 land Supreme Court of Canada: on Abo- claims policy, 117; in the 1995 riginal title, 224n12, 228n51; on policy, 123–4, 189, 195; and the Crown sovereignty, 77–8; on Constitution, 111, 114, 118–19, French-Indigenous alliances, 74; 147, 187–8; of the Cree Nation, on the honour of the Crown, 155, 158; inadequate resources 14–16, 29–32, 151–2, 195, 218n14; for, 165; in modern treaties, 148, on meaning of “existing,”237n12; 196 and Nisga’a petition, 141; and Senate Standing Committee on Parliament, 195–6; and patriation Aboriginal Peoples, 129–31, 133 of the Constitution, 145; on Que- Senior Oversight Committee on bec’s right to secede, 163; and Comprehensive Claims, 135 Royal Proclamation of 1763, 64, Seven Years’War, 16, 19, 34–7, 59, 88 66–7, 226n42; Tsilhqot’in judg- Shawnee Nation, 35, 43, 45, 47 ment, 135, 195, 220n37, Shelburne, William Petty, Earl of, 38 221–2n70, 228n51; vision of Shingas (Chief), 34, 35–6 negotiated Constitution, 26–9. Siberia, 240n38 See also Calder v. British Colum- Siddon, Tom, 117, 120, 121, 123 bia; legal cases Sierra Club, 177 Supreme Court of the United Six Nations. See Iroquois Confeder- States, 47–8, 63, 184 acy Swanson River, 175 Slattery, Brian, 4, 14–32 Smithe, William, 139–40 Tait, John, 159 Social Credit Party, 144 Tait Report, 159 Social Sciences and Humanities Taku River Tlingit First Nation, Research Council of Canada, 137 234n23 South Carolina, 18, 21 Tamaqua (Chief), 35 Sovereign Injustice, 163 Tanana people, 177 Spain, 37, 220n27 Taschereau, Henri-Elzéar, Sir, 60, 61 Spanish Succession, War of the, 86 Tecumseh, 47 Stamp Act (1765), 57 Thirteen Colonies, 19, 57 Stewart, Jane, 148, 149 Tlicho Land Claims and Self- Index 277

Government Agreement (2003), Tundra Times (newspaper), 175 118, 191 Tungavik Federation of Nunavut Tlicho people, 121 (TFN), 125, 174, 232n1, 234n23, Tobago, 17 239n7 Trans-Alaska Pipeline System (TAPS), 177 Udall, Stewart, 176, 177 Treasury Board Secretariat, 129 UN Committee on Social, Economic treaties: arbitration of disputes and Cultural Rights, 164–5 about, 133, 151; categories of, 81; UN Declaration on the Rights of and comprehensive vs. specific Indigenous Peoples, 77, 160, 165, claims, 103, 110–11, 233n6; and 195 Confederation, 96–7, 106; the UN Human Rights Committee, Crown as party to, 125, 150; fish- 164–5 ing rights in, 91–2; and honour UN Human Rights Council, 128–9 of the Crown, 29, 128, 130, United Kingdom. See Britain 153–4; and human rights, 128, United Nations, 163, 164 153, 159; hunting and fishing United States: extension of voting rights in, 91–2, 94, 106, 121, 180, rights to Native Americans, 173, 187, 189–90; implementation, 238n2; purchase of Alaska, 175; 120, 124–32, 136–7, 150–2, and Quebec hydroelectric power, 157–60, 171–2, 197–8; as “inden- 161; relationship with First Peo- tures,”93–4; kinship with Consti- ples, 34, 44–8, 191–2, 228–9n57, tution Acts, 28; maps, 92, 94, 95, 233n6, 233–4n15; and Royal 97; negotiation protocols, 85, Proclamation of 1763, 4, 5, 43, 46, 91–9, 100–1, 194, 231n6; non- 48, 224n16; War of Indepen- Aboriginal ignorance of, 196–7; dence, 4, 5, 43–4, 59, 91 peace and friendship, 83–8; social The Unjust Society (Cardinal), 108, and economic development in, 233n8 120–1; territorial, 91–3, 103; writ- US Atomic Energy Commission, ten vs. oral versions of, 98–9, 175 106–7, 195. See also modern Utrecht, Treaty of (1713), 86 treaties; numbered treaties; resource development and Valcourt, Bernard, 4, 10–13, 132, exploitation; individual treaties 134, 236n70 Trudeau, Pierre Elliott, 107–8, 112, Vaudreuil, Pierre de Rigaud, 143, 144, 185 Marquis de, 36 Tsawwassen First Nation Final Venetie Tribal Government, 184 Agreement (2007), 191 Vidal, Alexander, 95 Tsimshian people, 139 Virginia, 18, 21, 34, 40–1, 42, 43, 48 278 Index

Wabash River Indians, 20 Williams Treaties, 101–1, 107, 111 Walters, Mark D., 5, 49–68 Wilson, Richard, 139 Washington, George, 4, 36, 40–2, 44, Wisconsin, 45 46, 47 World Council of Indigenous P Washington Post, 239–40n22 eoples, 181, 240n38 Watson, William, Baron, 62–3 World War I, 11 Watt, Charlie, 154, 239n6 World War II, 175 Wayne, Anthony (General), 47 Wright, Edmond, 149 Wea Nation, 45 Wyandot Nation, 45 Weaver, Sally, 108 Werneck, Michael, 129 Young, Neil, 196–7 Wesley, John, 139–40 Yukon, 107, 112, 124, 143, 174, 185, Western Arctic Regional Munici- 186 pality, 174 Yukon First Nations Self- West Florida, 17, 18, 19, 23, 38, 39 Government Act (1994), 189 Westminster, Statute of (1931), 64, Yukon Umbrella Agreement-in- 226n42 Principle (1988), 118, 124, 191 White Paper of 1969, 107–8, 173, Yup’ik people, 238n4 185 Wilkinson, Charles, 177, 192 Zellen, Barry, 192–3, 241n46 Williams, A.S., 107