Indigenous Law Bulletin
By Sharon Venne
The potential of treaties [is] to ensure better relations in the future between Indigenous Peoples and States – a narrow definition of “a treaty” and “Treaty-making” would hinder or pre-empt any innovative thinking in the field.
When Indigenous peoples in Canada entered into treaties with the British Crown, they signed as independent nations and not as subjects of the British Crown. Treaties can be a good starting point to settle disputes in a peaceful and meaningful way. However, this depends on a continued recognition, by the governments involved, of the original spirit or intention of the parties at the time the treaties were made. In Canada, through the failure of the Federal Government to recognise the sovereignty of its Indigenous peoples, there is a continued violation of these treaties.
Significantly, people are talking about their ‘treaty rights’ but the Canadian Government is talking about the ‘rule of law’. I thought that treaties were part of the laws of the state of Canada. Yet Canada is trying to ignore the treaties and impose its own version of the law - which is just really rules and regulations.
Indigenous treaty-making has a long history in the world of Indigenous and non-Indigenous peoples alike. For example, amongst Indigenous nations, the Cree in the western part of Great Turtle Island negotiated and concluded treaties with the Dene, to their north, and with the Blackfoot Confederacy, to their south. The Dene and Blackfoot treaties remain in existence to this day.
In Canada, Indigenous nations have their own legal systems and their own political accords for entering into and concluding treaties. All the elements of a nation were also present at the time of contact: territory, government, legal system, historical continuity in a territory, and governing structures. All Indigenous nations were sovereign and nothing since the arrival of Columbus has diminished the nation status of Indigenous peoples.
When treaties were entered into between Indigenous and European nations, they were to guarantee the security and peace of both parties. These treaties, however, were violated. Indigenous peoples could find no recourse for treaty violations, so they were forced to seek outside help in the understanding and implementation of the treaties. The work of Indigenous peoples led to the passage, in 1989, of a resolution (‘the resolution’) by the UN Commission on Human Rights to put in place a study on treaties.
In July 1998, the United Nations' Special Rapporteur Miguel Alfonso-Martinez tabled his final report of the Study on Treaties, Agreements and other Constructive Arrangements Between States and Indigenous Populations. This report was the final product of twenty-two years of work by Indigenous peoples at the United Nations.
The report could have taken a purely technical and juridical analysis of treaty-making, like that of Francis Prucha, who argued that the treaties entered into with Indigenous peoples in the Americas were not signed between sovereign entities. His analysis was based on Eurocentric values, that Indigenous peoples are less than human and do not have the same rights as Europeans. This approach, if taken, would have lost the Indigenous viewpoints on treaty making. Instead, the UN Rapporteur reviewed and analysed the origins of the practice of concluding treaties and agreements between Indigenous peoples and European powers. He attempted to deconstruct and reconstruct the ‘traditional’ Eurocentric analysis of treaties entered into with Indigenous peoples.
In 1989 when the UN Commission on Human Rights (‘the Commission’)accepted a Sub-Commission recommendation to undertake a study on treaties, and to appoint a Rapporteur, Indigenous peoples were able to put on the UN record, for the first time, their view of treaty-making and treaty implementation. However, despite the resolution, the Rapporteur, Miguel Martinez, experienced difficulties in undertaking site visits within the United States. State governments wanted to know exactly what was going to be included in a report, and when the resolution was to be discussed. Some states expressed concern that the resolution was not initiated by any state but was a result of the 1989 recommendation of the UN Sub-Commission, acting upon recommendations of Indigenous representatives: Indigenous peoples acting as subjects of international law rather than as objects of state law. In spite of the reservations expressed by some states, the Commission approved the resolution, but not before substantive amendments were made. Rather than confining a study on treaties to those entered into between Indigenous peoples and states, the study was expanded (because of pressure from countries such as the USA and Canada) to include consideration of agreements and other constructive arrangements with Indigenous peoples. The governments of these countries were seeking to protect their interests – for example, the ability to unilaterally amend treaties, or to provide for third party interests.
However, in his first report, the Rapporteur pointed out that there are no international norms for constructive arrangements or agreements, and in international law the norm is to have agreements, which get called treaties. As a result, he focused on the making and concluding of treaties with Indigenous peoples and their possible future use in the resolution of disputes between Indigenous peoples and state governments. Martinez concluded that there are four elements or attributes of Indigenous peoples which form their capacity to enter into a treaty: their territory, their recognized capacity to enter into international agreements, their specific forms of government and a population. He noted in his final report that Indigenous peoples over the centuries have had their populations substantially reduced, their territories limited and their governments subjected to domestic limitations. However, he noted that these factors, which have been imposed on Indigenous peoples, have not diminished the original status of the treaties. The treaties continue ‘to be fully in effect and consequently are sources of rights and obligations for all the original parties to them (or their successors) who shall fulfil their provisions in good faith.’
The Canadian Federal Government wants to see the Treaties Eight and Eleven extinguished and replaced by a process of claim settlement. To the Dene, their treaties have great historical and spiritual significance. Dene regard them as a constitutional document, in which the Crown recognized them as a distinct people, a nation.
The preferred method used by the Federal Government in the process of claims settlements is to have a clause inserted into agreements whereby Indigenous peoples relinquish their rights to their lands and resources. In return for giving up inherent Aboriginal rights and rights under the treaties, the state of Canada would provide ‘some’ lands for the Indigenous peoples to use. For most Indigenous peoples, the severance of their links with their lands and territories is to relinquish an integral part of themselves. When Indigenous peoples give up their lands, however, what happens to the future generations? It was the future generations which the Elders considered at the time of the treaty-making. For as long as the sun shines and the waters flow - as long as life.
The Federal Government is not prepared to accept that Indigenous governments had previously negotiated and entered into treaties with the British Crown. The claims process is attempting to impose Eurocentric values rather than have recognition and acceptance of the Dene governmental structures based on Dene laws which are the basis of the original treaties.
One of the key issues relating to treaty implementation is the sharing of the resources from the Dene lands and territories. The Federal Government collects royalty payments from oil, gas and minerals, but no share of the royalties is collected for the Dene.
The Federal Government want the Dene to surrender their original Dene territory and resources as a means of settling outstanding disputes. The claim settlement agreements contain provisions for the extinguishment of land rights and the consequent extinguishment of all additional rights. There is an extinguishment clause included in the 1990 Dene-Métis Agreement in Principle. Nevertheless, for some Dene, extinguishment is not acceptable. The Government knows that the treaties did not surrender, cede or give up title to the lands, and, unfortunately, its approach is not the best way of settling grievances between the settler state and Indigenous peoples.
Such extinguishments would mean that the status of Indigenous lands, and peoples as nations, would be eliminated. Indigenous peoples would fall under laws of general application. The Canadian Federal Government has proposed that a municipal style of government be established over Dene territories, based upon mostly delegated authority. But, in terms of lands and resources, this would remove the peoples’ power, and the Indigenous peoples want to have a say. The land is critical to the Dene and is expressed by a member of the Dene Nation as follows:
I have had a really bad feeling inside that we are even going to consider surrendering our treaty; and aboriginal rights. Joint management, we have half say; and the Minister's got the veto on our own lands. That is not right. There is no logic in that at all; nothing. When did our forefathers say that the white people, the government are going to have just as much say as we do about how our land is going to be managed today; and in the future.
Historically, the Canadian Government, in opposition to the Crown's treaty-making policy, structured itself legally, socially, and even psychologically to deny Indigenous peoples any form of self-determination. The Government of Canada subverted the traditional governments of the Indigenous peoples and put in place Chiefs and Councils. Then it imposed Indian Agents to control the resources, movements, public gatherings, schooling, lands and all aspects of the lives of Indigenous peoples in an attempt to disrupt the internal operation of the Indigenous governments. Even today, the state's concept of government for Indigenous peoples has been limited by its own attempts to frame it. Its parameters relegated Indigenous government to some form of municipal administration. The Federal policy reads as follows:
...above all other issues, the requirement that aboriginal groups agree to the extinguishment of all aboriginal rights and title as part of a claims settlement has provoked strong reactions from aboriginal people. The federal government has examined this feature of the former policy carefully, and has concluded that alternatives to extinguishment may be considered, provided that certainty in respect of lands and resources is established.
Two options are presented. The first option calls for the ‘cession and surrender of aboriginal title throughout the settlement area in exchange for defined rights.’ Some rights would be ‘defined for reserved areas, and others for the entire settlement area.’ ‘Reserved areas’ are then given back to the Indigenous peoples as lands owned in fee simple. This strategy effectively eliminates the possibility of establishing and maintaining Indigenous people’s governments.
The second option calls for ‘cession of aboriginal title in non-reserved areas, while allowing any aboriginal title that exists to continue in specified or reserved areas; and granting beneficiaries rights applicable, to the entire settlement area.’
Both options require Indigenous nations to cede their sovereignty. That is clear for option one. For option two, it is not so clear, until one looks at economic necessity for the Indigenous peoples to survive and govern themselves. The traditional Dene economy requires at least 25 square miles for each person and reserve lands allowed by the Indian Act allow one square mile for each family of five. The injustice is obvious.
I believe that in all these talks, never once had I ever heard any of the Elders talk about releasing, conceding, giving up the rights. That is very important to us to our control and our lands.
The Dene-Métis Agreement-in Principle provided for subsurface rights on about a half of one percent of the peoples’ original lands: those in close proximity to communities, in critical wildlife habitat and in sacred sites. It is acknowledged that this strategy would help ‘avoid land use conflict in key areas’ - as long as the Federal Government chose to honour it. The lands would have been held in fee simple and subject to Federal expropriation laws.
However this strategy could require Indigenous peoples to turn their communities into mining camps, desecrate sacred sites, and/or destroy critical wildlife habitat if they wanted to profit from development of their own resource base.
The options present the Indigenous peoples with a spiritual as well as a psychological dilemma. Given the beliefs of governments that life on the land is not tenable and that future generations should adapt to the industrial economy, it is conceivable (although at a speculative level) to state that this economic strategy inherent in the claims process is designed to force Indigenous peoples to eventually give up their spiritual beliefs and relationships with the land in order to survive, in complete contravention and intent of the original treaties.
When the Elders entered into treaties with the British Crown, it was to ensure that the future generations would be able to continue to live on their lands in the way that the Creator had directed. As the present policies demonstrate, Canada as a successor state has no intentions of following the terms of the treaties and actively pursues a course to undermine and diminish the treaties. Of course, Canada as a successor state cannot change the treaties without the consent of the Indigenous peoples and so has set up scenarios for the necessary consent to be given to change the treaties.
Indigenous peoples do not desire ‘greater control and authority over the management of their affairs’: they want their right to self-determination recognised. Even if the policy of the Canadian Government stated that it acknowledged Indigenous desires for self-government, it would not mean that it accepts Indigenous rights to self-determination.
In entering into treaties with the British Crown, Indigenous peoples agreed to coexistence arrangements. However, over a period of time, the arrangements have been disrupted by the Federal Government's attempts to control the lands and resources within Indigenous Territories without the consent of the Indigenous peoples and that has led to conflict. For a number of years, Indigenous peoples have tried to establish a process between themselves and the Government of Canada, to facilitate the discussion and resolution of a number of issues, and grievances, both historical and current.
The coexistence discussions would occur within a process which would be seen as distinct, yet not exclusive. The land is a key element of the coexistence arrangement. Coexistence rather than co-management. Co-management necessarily implies that the Federal Government of Canada is the owner of the lands and resources and that is contrary to the position taken by the Elders. At the time of the Peace and Friendship treaty-making, no lands or resources changed hands.
It is possible to understand the Federal Government’s reluctance to discuss co-existence, since they were not a party to the treaties between the Crown and Indigenous peoples. However, at the time of the treaty-making, the Crown’s representatives made a number of commitments to our ancestors. One related to our rights to our lands and resources. We were to continue to live as we had always lived.
The implementation of the treaties was as understood by us. This is part of coexistence. We must remember that all peoples have treaty rights. The settlers have a right to live in our territories in peace and friendship and these rights are lived on a daily basis. Indigenous peoples request the same respect and integrity shown the non-Indigenous settlers. It is right and just. As the Special Rapporteur concluded in his report: there is a need for the active participation of Indigenous peoples preferably on an equitable basis to find solutions to stop disputes before they arise. The time has past for the non-existence, malfunctioning and anti-Indigenous approaches to dispute resolutions. The approach must be one of good faith to seek the justice and reconciliation that is needed to fully implement the treaties as intended by the Crown's representatives and the Indigenous peoples at the time of the making of the treaties. Anything less will lead to continued treaty violations.
Sharon Venne is a Cree woman from Great Turtle Island with a Cree name: Old Woman Bear. For the last twenty years she has been working with Elders and at the United Nations on the UN Treaty Study. She is doing a doctorate on treaties concluded with Indigenous peoples and international lLaw. She has written a number of articles and published materials on treaties including a book on the Elders' view of the treaties.
 Final Report of the United Nations Study on Treaties, Agreements and other Constructive Arrangements E/CN.4/1998/14.
 I refer to treaties entered into between 1876 and 1900, Treaties Six, Seven and Eight of the western part of present - day Canada.
 North and South America.
 Sharon H Venne, ‘Understanding Treaty Six: An Indigenous Perspective’ in M Asch, ed, Aboriginal and Treaty Rights in Canada (Vancouver:University of British Columbia Press, 1997).
 For a history of the Indigenous struggle for recognition in the United Nations see: Sharon H Venne, Our Elders Understand our Rights, Evolving International Law regarding Indigenous Peoples (Penticton: Theytus Books, 1998) and James Anaya, Indigenous Peoples in International Law (Oxford: Clarendon Press, 1996).
 Commission on Human Rights resolution 1989/41 of 6 March 1989. The resolution was forwarded to the Economic and Social Council for its approval. ECOSOC formally authorized the Special Rapporteur on 24 May 1989 by resolution 1989/77.
 Francis Paul Prucha, American Indian Treaties The History of a Political Anomaly (Los Angeles, University of California Press, 1994). Prucha concluded that the treaties are not valid international agreements. How then can he justify the settlement of America in international legal terms? Either the treaties are valid or they are not valid. If the treaties are not valid international instruments, then it calls into question the legitimacy of the United States to use and occupy lands of Indigenous peoples. It seems to be the ultimate Catch 22 situation.
 E/CN.4/Sub.2/1998/14, para 276, E/CN.4/Sub.2/1999/20 para 271.
 The last numbered treaty to be negotiated and entered into was in 1921 and 1922 known as Treaty Number Eleven concluded with Dene in the Deh Cho area. Deh Cho is the name of the river generally known as the Mackenzie River that flows into the Arctic Ocean.
 It is still a policy of the Federal Government to have extinguishment written into final agreements. The new word is called ‘certainty’ but it has the same effect as extinguishment.
 Dene Nation Assembly Hay River, see Native Press, 9 November 1990, 187.
 Department of Indian Affairs and Northern Development, Ottawa, The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiations of Aboriginal Self-Government (1995).
 Ibid 11-12.
 Above n 12.
 Felix Lockhart, Supra, Dene Nation Assembly Hay River, 165.
 Above n 5.