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Treaty Relations As a Method of Resolving IP and Cultural Heritage Issues

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Treaty Relations as a Method of Resolving IP and Cultural Heritage Issues (An Intellectual Property Issues in Cultural Heritage Community-Based Initiative) Final Report By Siku Allooloo, Michael Asch, Aimée Craft, Rob Hancock, Marc Pinkoski, Neil Vallance, Allyshia West, and Kelsey Wrightson Michael Asch, Principal Investigator Department of Anthropology University of Victoria Victoria, BC V8W 3P5 October 2, 2014 2014 Attribution and Copyright Notice Choice of license (http://creativecommons.org/licenses/): CC- Attribution NonCommercial-NoDerivs CC BY-NC-ND This research was made possible, in part, through the support of the Intellectual Property Issues in Cultural Heritage (IPinCH) project, a Major Collaborative Research Initiative funded by the Social Sciences and Humanities Research Council of Canada. IPinCH explores the rights, values, and responsibilities associated with material culture, cultural knowledge and the practice of heritage research. www.sfu.ca/ipinch 1 ABSTRACT This case study examined the political relationship established between First Nations and Canada through historical treaties as a possible framework for the resolution of intellectual property and cultural heritage issues between Indigenous peoples and Canada with an expectation that the results might be of more general use. Based on a careful examination of published primary and secondary materials related to treaty negotiations in Central Ontario, the Prairies, the Northwest Territories and Vancouver Island in the 19th and early 20th centuries, the study applied historical, ethnohistorical and anthropological methods to identify aspects of these historic treaties that have resonance for current debates around topics such as property, ownership, and jurisdiction. The principle finding of this study, which registers in the information on all the treaties examined, is that the negotiated relationship is one in which the intent is for the governments of the settlers to provide benefits in addition to what people already have rather than impose a new system, and that in this regard, while it is a matter of justice, this principle must lie behind state actions whether or not it assumes to have sovereignty and jurisdiction over First Nations. This case study is understood to contribute to the wider objectives of the IPinCH project in three additional ways. First, the reports on the historical treaties add to the knowledge base of the project as a whole. Second, the analysis of the potential contributions of a treaty-based relationship broadens the critical understanding of intellectual property and cultural heritage and offers alternative ways to examine other case studies and other research emerging within IPinCH; thinking in terms of treaty relationships might offer an innovative approach to the resolution of intellectual property and cultural heritage issues. Finally, it is hoped that public dissemination of these findings may well offer some assistance to the parties now negotiating the so-called Modern Treaties as well as in the adjudication of disputes respecting areas of treaties that will be discussed in the research. 2 Table of Contents ABSTRACT ........................................................................................................................... 2 TABLE OF CONTENTS .......................................................................................................... 3 SUMMARY REPORT AND ANALYSIS by Michael Asch ....................................................... 6 OVERVIEW .................................................................................................................................. 6 PERSONNEL ................................................................................................................................ 7 METHODOLOGY .......................................................................................................................... 8 Ethics Review ....................................................................................................................... 10 FINDINGS .................................................................................................................................. 10 Treaties and the Crown’s Acquisition of Sovereignty and Jurisdiction ................................ 10 Promises Made by the Crown .............................................................................................. 16 Were the Treaties Fraudulent? ............................................................................................ 18 Implications for Policy on Cultural Heritage ......................................................................... 19 REPORT 1: INDIGENOUS AND SETTLER UNDERSTANDINGS OF THE MANITOULIN ISLAND TREATIES OF 1836 (TREATY 45) AND 1862 by Allyshia West .......................... 23 TREATY 45 — INTERPRETATION ............................................................................................... 26 MANITOULIN ISLAND —1836 TO 1862 ..................................................................................... 28 MANITOULIN ISLAND TREATY OF 1862 .................................................................................... 29 CONCLUSION ............................................................................................................................ 31 REPORT 2: THE FORMATION OF THE VANCOUVER ISLAND TREATIES (ALSO KNOWN AS THE DOUGLAS TREATIES) OF 1850–1854 by Neil Vallance ..................................... 33 A CLOSER LOOK AT THE TREATIES ............................................................................................ 37 The Nine Fort Victoria Treaties (1850) ................................................................................. 38 The Fort Rupert Treaties ...................................................................................................... 49 The Saanich Treaties ............................................................................................................ 49 The Nanaimo Treaty ............................................................................................................. 54 CONCLUSIONS .......................................................................................................................... 59 REPORT 3: THE STONE FORT TREATY (TREATY 1) by Aimée Craft .................................. 63 INTRODUCTION ........................................................................................................................ 63 THE NEED TO SECURE ALLIANCE .............................................................................................. 67 BUILDING ON SOLID FOUNDATIONS: RELATIONSHIPS AND PROTOCOLS ................................ 72 WAITING FOR THE OTHERS ...................................................................................................... 73 3 REMOVING THE DARK CLOUD .................................................................................................. 75 Gifting and Feasting ............................................................................................................. 76 The Pipe ................................................................................................................................ 78 The Queen’s Words and Promises ....................................................................................... 79 THE LAND QUESTION ....................................................................................................... 84 The Selkirk Treaty ..................................................................................................................... 85 Land Negotiations ..................................................................................................................... 86 Reserves ............................................................................................................................... 88 Ending the Negotiations ....................................................................................................... 94 ANISHINABE RELATIONSHIP TO THE LAND ............................................................................... 96 OUTSIDE PROMISES ................................................................................................................ 102 CONCLUSION .......................................................................................................................... 104 REPORT 4: TREATY 4 by Michael Asch ........................................................................... 109 INTRODUCTION ...................................................................................................................... 109 The Numbered Treaties ..................................................................................................... 111 Choosing Treaty 4 ............................................................................................................... 111 SHARING OR EXTINGUISHMENT? ........................................................................................... 112 Sharing the Land or Taking It Over? ................................................................................... 116 Fixed Terms Or Open-Ended Sharing Relationship? .......................................................... 118 CONCLUSION .......................................................................................................................... 120 REPORT 5: TREATY 6 by Kelsey Wrightson ....................................................................
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