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By John Leslie
This section explores treaty activity in Canada, from the era of New France to the present.
In Canada, treaties come in a variety of sizes, shapes and formats, and they were negotiated for a variety of purposes. The Canadian government has recognized approximately 70 historic treaties. Several treaties were negotiated during the era of New France. A series of Peace and Friendship treaties were negotiated in the Maritime provinces between 1725 and 1779. In Upper Canada/Canada West (now Ontario), 32 land cession treaties were signed in the pre-Confederation era, from 1781 to 1862. On the West Coast, 14 treaties on Vancouver Island were negotiated in the period 1850 to 1854 by James Douglas, Chief Factor of the Hudson's Bay Company and later, Governor of Vancouver Island. Western Canada, northern Ontario and a portion of Yukon and the Northwest Territories are covered by the numbered Treaties 1 to 11, executed between 1871 and 1921. The two Williams Treaties of 1923, covering the north shore of Lake Ontario and central Ontario, completed unfinished business from pre-Confederation times.
As a result of Section 35(1), Constitution Act (1982), treaties are considered to be constitutional documents.
During the era of New France, dating roughly from 1608 to 1760, government officials did not negotiate land cession treaties with Aboriginal peoples. Due to patterns of settlement along the St. Lawrence River and economic activity based on the fur trade, First Nations' lands and resources were not required for settlement or development. Indeed, to a large measure, French colonial interests co-existed alongside the inherent rights of their First Nations allies. Mission lands, where Aboriginal peoples could be instructed and converted to Christianity, were granted to religious orders by the King of France.
Treaties dating from the "ancien régime" are of importance and historic interest. After a period of intense warfare that pitted the French against the British-allied Iroquois, the Great Peace of Montreal treaty was negotiated and signed with great fanfare in 1701. This treaty, which took several weeks to finalize, reopened French trading relations with the First Nations of the Great Lakes region and the "pays d'en haut." Through reciprocal trade, various First Nations inhabiting the Great Lakes basin became allies of the French in the struggle with the British for supremacy in North America. The French dream of ascendancy in North America came to an end with the capitulation of Québec and Montréal and the signing of the 1763 Treaty of Paris.
In 1713, by the terms of the Treaty of Utrecht, Acadia (modern Nova Scotia and New Brunswick) was transferred from French to British jurisdiction. In the ensuing decades of the 18th century, representatives of the British Crown negotiated Peace and Friendship treaties with the "Wabanaki Confederacy" in the Atlantic region. (14) The signing of these treaties, and the renewal of the treaty relationship, generally occurred after periods of imperial war or local hostilities. (15)
In December 1725, a peace treaty was signed at Boston between representatives of the Crown from the colonies of Massachusetts, New Hampshire and Nova Scotia (16), and chiefs of the Penobscott, Eastern Abenaki, Maliseet and Mi'kmaq. According to the "Articles of Submission and Agreement," the Aboriginal signatories agreed to the following: to acknowledge the jurisdiction and Dominion of the British Crown; to not molest settlers or interfere with trade; to pay restitution in cases where they committed robbery; to apprehend British deserters; to rely on British courts to settle disputes; and finally, to release any prisoners. The 1725 treaty was subsequently ratified by the Mi'kmaq at various locations in Nova Scotia in the years 1726, 1727 and 1728. Reciprocal promises, made by representatives of the Crown, recognized Aboriginal rights to hunt, fish and plant crops. In 1749, the terms and conditions of these treaties were renewed at Chebouctou (Halifax) and at a location on the Saint John River.
In November 1752, Governor Peregrine Thomas Hopson negotiated a more elaborate treaty with the Mi'kmaq at Halifax. The Mi'kmaq were represented by Jean-Baptiste Cope. The Aboriginal signatories renewed promises from earlier treaties. In return, Hopson promised to build a "truckhouse," or government trading post, at Shubenacadie to encourage trade with the Mi'kmaq. (17) Another provision stated that signatories would be provided with bread, flour and other provisions in proportion to family size "for time to come," each half year. Annual gifts of tobacco, shot and powder were promised for keeping the peace and renewing the treaty.
In the years 1760 and 1761, the Maliseet and Passamaquoddy confirmed and renewed the Peace and Friendship treaties of 1725, 1726 and 1749. In September 1779, at Halifax, in what was the last major treaty negotiation, the Mi'kmaq from Cape Tormentine to the Bay of Chaleur ratified the terms of the previous treaties dating back to 1725. None of these treaties purchased Aboriginal rights to lands and resources in Nova Scotia, New Brunswick or Prince Edward Island.
Today, the provisions of certain Peace and Friendship treaties are the subject of litigation before the Supreme Court of Canada. The issue of unextinguished Aboriginal rights is being addressed by the Department of Indian Affairs and Northern Development in comprehensive land claim negotiations.
There had been conflicts between the Hudson's Bay Company (HBC) and First Nations on Vancouver Island. In 1849, James Douglas, Chief Factor of the HBC at Fort Victoria (1849-1858), recommended that Aboriginal interest to lands in proximity to HBC operations be purchased as the "native Indian population has distinct ideas about property in land." (18) The HBC replied that, in its view, this population had only a right of occupancy, but no title to the land. Douglas was instructed to confer with the chiefs and to confirm them in the possession of only those lands that they had cultivated or built houses on by 1846 (the date when British sovereignty over Vancouver Island was asserted). All other lands on the island were to be available for colonization.
In the spring of 1850, Douglas summoned the Chiefs of the Songhee, Klallam and Sooke of the Victoria, Metchosin and Sooke regions to a conference. After lengthy negotiations, the Chiefs agreed to sell their lands to the HBC "with the exception of village sites and enclosed fields." By "deeds of conveyance" (term used by Douglas), nine First Nations surrendered (ceded) their lands "entirely and forever" in return for blankets and certain small reserves of land. They retained hunting and fishing rights on unoccupied lands. Similar treaties were concluded with First Nations at Fort Rupert in 1851, Saanich in 1852, and Nanaimo (where there was a coal deposit) in 1854. These 14 HBC treaties extinguished Aboriginal title to 927 square kilometres, or about one-fortieth of Vancouver Island. (19)
The Douglas treaty system stopped in 1854 due to cost considerations. The treaty process was not extended to the mainland. As a result, much of the Province of British Columbia, which entered Confederation in 1871, retained unextinguished Aboriginal interests to lands and resources. This situation became known as the "BC Indian land question." The unfinished treaty activity of the 19th century is currently being addressed by the Federal Treaty Negotiation Office of the Department of Indian Affairs and Northern Development, through the negotiation of modern land claims agreements.
The lands of present-day Ontario (Upper Canada) were considered "Indian lands" by the terms of the Royal Proclamation of 1763. The system of land cession treaties in Canada had its origins in the early days of Upper Canada. Beginning in 1781, and continuing to 1816, 17 land cession treaties were negotiated with the resident First Nations of southern and central Ontario. These early treaties contained limited provisions: a one-time payment for ceded Aboriginal lands, in some instances a provision to create reserves (Treaty 2), and guarantees of fishing rights in local rivers and streams (Treaties 13 and 14).
Beginning in 1818, the lump sum payment system for Aboriginal lands was transformed into an annuity payable in goods. Between 1818 and 1836, nine additional treaties were negotiated, opening up vast tracts of land in Upper Canada for settlement and commercial development. One of the most famous of these treaties was signed in 1836, when Sir Francis Bond Head obtained the surrender of the Bruce peninsula (Treaty 452). This treaty was part of his plan to remove all the unsettled Aboriginal people in the upper province to Manitoulin Island.
In 1850, as a result of an influx of miners, officials of the Province of Canada (formerly Upper Canada (Ontario) and Lower Canada (Quebec)) negotiated two land cession treaties with the Chippewa of Lake Superior and Lake Huron. The Robinson-Superior and Robinson-Huron Treaties purchased the Aboriginal interest to lands north of Lakes Superior and Huron to the boundary between Hudson's Bay Company lands and those belonging to the Province of Canada. The Robinson Treaties were more sophisticated than earlier exercises. The treaties contained provisions: a one-time cash payment, annuities (with an escalator clause), limited promises in regard to hunting and fishing, and the creation of reserves. These unceded reserve lands still retain their Aboriginal interests.
In 1860, the Province of Canada assumed control of First Nations administration from imperial authorities. The last treaty entered into by the Province of Canada before Confederation, was signed on Manitoulin Island in 1862. This treaty was unique in that it granted First Nations fee simple ownership of their reserve lands. Annuities were paid to the signatories as a percentage from the sale of lands on the island.
In Ontario, unfinished treaty business from pre-Confederation times lingered into the 20th century. In 1923, two treaties covering the north shore of Lake Ontario and central Ontario were negotiated to deal with uncertainties left behind by the 1787 "blank deed" and the 1805 Toronto Purchase.
In 1870, the Dominion of Canada acquired Rupert's Land and the North-Western Territory from the Hudson's Bay Company. Article 14 of the imperial order-in-council that transferred this vast tract to the new Dominion stipulated that "Indian" claims would be dealt with by the federal government. Beginning in 1871 and ending in 1921, a series of 11 land cession treaties were negotiated covering the western provinces and northeastern British Columbia, northwestern Ontario, northern Ontario and the western portion of the Northwest Territories. These treaties were viewed by government officials as instruments that would assist Aboriginal peoples to adjust to a new way of life. The numbered treaties contained numerous provisions: one-time payments to chiefs and headmen; a census; triennial clothing; annuity payments; education; prohibition of intoxicants; creation of reserves; farm stock; agricultural equipment; ammunition; twine for nets; and flags. Treaty 6 included provision for a medicine chest, as well as food in case of pestilence and famine.
Six of these numbered treaties were negotiated before a consolidated Indian Act was brought into force in 1876. Many western First Nations view the numbered treaties as the true documents that define their relationship with the Crown. In their view, the Indian Act is not valid because it is legislation drafted and passed without their consultation. The numbered treaties are held in high esteem by the descendants of the original signatories.
In recent years, the courts have discovered new treaties. James Murray's "laissez-passer" to the Huron, in September 1760, was deemed to be an "Indian treaty" by the Supreme Court of Canada. (20) In R. v. Marshall, dealing with treaty rights in the Maritimes, the Supreme Court held that the purpose, intent and understanding of the parties to a treaty can only be ascertained by examining extrinsic historical evidence (covering letters, minutes of meetings, interpreters' comments, orders-in-council, and oral history) relating to the negotiation of the particular treaty. (21) Given the evolving state of treaty and Aboriginal rights case law in Canada, it is imperative that researchers carefully consult the government record groups, manuscript documents, and special collections held by Library and Archives Canada (LAC), to locate documents and materials relevant to a contemporary understanding and interpretation of Aboriginal treaties.