Treaty Reconciliation - Kiiway-Dibamahdiiwin1 Introduction: In this paper I hope to convey some understandings of Treaty as regarded by First Nations.2 And it is daunting to attempt to bring discussion to the Treaties which is acknowledged to rest between the First Nations peoples’ signatory to Treaty and the Crown as parties to Treaty. This presentation3 is not based solely on one Nations’ legal traditions and seeks to provide a discussion of the complexity of Treaty as promises – “for as long as the Sun shines, the Grass grows, and the Waters flow.” The Indigenous peoples’ perspective is often stated to be a Treaty relationship founded on a nation to nation basis and by its “consensual treaty relationship”4 obligates mutual responsibility and respect. Wahbung Our Tomorrows, 1971 5 said it best: “We would emphasize for the purpose of clarity and to avoid any misunderstanding that the Indian tribes of Manitoba are committed to the belief that our rights, both aboriginal and treaty, emanate from our sovereignty as a nation of people. Our relationships with the state have their roots in negotiation between two sovereign peoples. “There can be no delegation of authority or responsibility by the federal state to the province without our consent. There can be no deviation or alteration in this relationship without mutual consent. The Indian people enjoy “special status” conferred by recognition of our historic title that cannot be impaired, altered or compromised by federal-provincial collusion or consent. We regard this relationship as sacred and inviolate.” 1 Treaty: settlement of debt obligation, interpretation of Pikangikum /Little Grand Rapids Anishinaabeg. 2 The constitutional/legal term “Aboriginal” or “Indian” is used in reference to Statutes, Court cases or reference sources. Indigenous peoples, First Nations and Anishinaabeg are applied interchangeably. 3By Irene Linklater, B.A., LL.B, Executive Director/in-house legal advisor Assembly of Manitoba Chiefs Secretariat Inc., for CBA-National Aboriginal Law Conference “Perspectives on Treaties between Aboriginal Peoples and the Crown”, April 28-29, 2011, in Winnipeg, Manitoba. 4See James (Sa’ke’j) Youngblood Henderson, “Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition” (Saskatoon: Purich Publishing Ltd., 2008). 5 Wahbung Our Tomorows: By the Indian Tribes of Manitoba, (Winnipeg:1971, Manitoba Indian Brotherhood; Reprinted , Manitoba Indigenous Cultural Education Centre, 2011) response to the Government of Canada’s “White Paper 1969, to eliminate Treaties, at 40. 1 I will be presenting the approach that Treaty reconciliation is achieving understandings to interpretations and implementation of Treaties, rights and obligation, with acknowledgment, respect and good faith, to learn from past mistakes. Above all, it must uphold the Original relationship and promise for regeneration of the relationship on an annual basis for future generations and for all time. The approach proposed to getting to this goal is to follow a negotiated process that would incorporate both Crown laws and Indigenous law traditions based on consensual relations. It is well documented and known to oral tradition and history that immediate challenges to interpretation and implementation of the Treaties arose by surrounding political, legal and societal developments leading to breaches of Treaty, with some either still to be acknowledged or at implementation stages. From 1871 to 1906, the Crown and the First Nations entered into Treaties that encompassed territories within the current boundaries of the Province of Manitoba. Treaty 1, was entered into in 1871, as the first of the Numbered Treaties with Treaty 2, in 1872, Treaty 3, in 1873, Treaty 4, in 1874, Treaty 5, in 1875 Treaty 6, in 1876 and Treaty 10, in 1906. Several Government mandated Commissions have studied and made recommendations to address the Treaty based grievances of First Nations to the injustices experienced including more recently the Aboriginal Justice Inquiry in Manitoba (1991)6 on the “administration of justice and Aboriginal people” and the Report on the Royal Commission on Aboriginal Peoples (1996)7 concerning “government policy with respect to original historic nations in this country.” 6 Report on the Aboriginal Justice Inquiry of Manitoba, 2 Volumes (1991), under the Public Inquiry of the Manitoba Government into the administration of justice and Aboriginal people in response to the trial of two men in 1987 on the 1971 murder of Helen Betty Osborne citizen of the Opaskwayak Cree Nation in The Pas, and the death of J.J. Harper Executive Director of the Island Lake Tribal Council in Winnipeg by a police officer. In 1999 the Aboriginal Justice Implementation Commission was established to review the AJI recommendations tabled its Final Report 9June 2001) noting ten priority areas around three themes in Aboriginal rights, reform of the justice system and the need for preventative measures. 7 Report of the Royal Commission on Aboriginal Peoples (RCAP Report, Vol. 1, Looking Forward, Looking Back (Ottawa: Supply and Services Canada, 1996) 2 With the spread of Newcomer settlements across the territories the Crown entered into Treaties with the original inhabitants occupying these lands now named Canada. The written terms of the Treaties speak of the Indigenous peoples ‘surrendering lands’ to the Crown, and this has been interpreted to have freed up of surrendered lands for New comer settlement and development, the people of the Settler nation. The St. Catherine’s Milling case8 addressed this matter which had a major impact on all Treaties, and all without the participation of the First Nations of Treaty where the dispute raged between the Federal government and the Province of Ontario. The Privy Council decided in favour of the Province ruling it held exclusive jurisdiction over resources based on an interpretation of section 109 of the British North America Act, 1867.9 The interpretation and implementation of British legal traditions have been challenged by the First Nations dating as far back as to colonial times well before western situated Treaties. The Crown governments and Courts have relied on a literal interpretation of the written version of the Treaty and related documents denying any commitments to Treaty obligations beyond the express wording. The principles for any acquisition of Indian lands provided only the Crown could acquire Indian lands and only by voluntary cession made by the Indians by consent. The insistence of a consensual transaction10 on the part of the Crown at the time was due to the recognition of the military strength of the Indian and the security of the colony necessitated fair dealing. A point of clarification here is that the “reserved lands” recognized by the Royal Proclamation of 1763 (any unceded lands in Indian possession) 8 St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.) at 652 states “By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purposes as to Her Majesty might seem fit, “to the Government of the Dominion of Canada.” for the Queen and Her successors for ever….and the surrender is in n substance made to the Crown….it is abundantly clear that the commissioners who represented Her Majesty, whilst they had full authority to accept a surrender to the Crown, had neither authority nor power to take away from Ontario the interest which had been assigned to that province by the Imperial Statute of 1867.” 9 British North America Act, 1967 (Constitution Act, 1867 (UK), 30 & 31 Vict. C.3, reprinted in R.S.C. 1985, App. II No. 5. 10 See Darlene Johnston, The Taking of Indian Lands in Canada: Consent or Coercion? (Saskatoon: University of Saskatchewan Native Law Centre, 1989): and RCAP Supra Note 6, 119-79. 3 are not the same as the meaning of “reserves” in the Indian Act11. The Proclamation recognized all unceded Indian lands as being reserved for Indian use and possession. Alexander Morris, Treaty Commissioner who negotiated several of the numbered Treaties writes: “One of the gravest of the questions presented for solution by the Dominion of Canada, when the enormous region of the country formerly known as the North West Territories and Rupert’s Land, was entrusted … to her rule, was securing the alliance of the Indian tribes, and maintaining friendly relations with them.” It is no longer disputed by the successors of the colonial governments or countries of the United Nations that Indigenous nations existed on the lands and territories now referred to in the international world as Canada. Further more, it is recognized that Treaties existed amongst and between the First Nations peoples prior to the arrival of the Settler nation from Great Britain, during the colonial settlement and to present times. In R. v. Sioui 12Justice Lamer in his judgment citing Worcester v. Georgia13, reconciled that the Royal Proclamation of 176314 established the acknowledgment of the nation to nation relations between the Crown and First Nations. The ruling confirmed that the period prior to the proclamation: “… [B]oth Great Britain and France felt that the Indian nations had sufficient independence and played a large enough role in North America for it to be good policy to maintain relations with them very close to those maintained between sovereign nations. The mother countries did everything in their power to secure the alliance of each Indian nation and to encourage nations allied with the enemy to change sides. When these efforts met with success, they were incorporated 11 Ibid, Darlene Johnston. 12 R. v. Sioui,[1990] 1. S.C.R. 1025 13 Worcester v. Georgia, 31 U.S. 515 (1832) 14 Issued on October 7, 1763, by King George III, and reproduced in R.S.C. 1985, App. II, No. 1. [Royal Proclamation] 4 in treaties of alliance or neutrality.