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Schulte-Tenckhoff, Isabelle --- "A Brief Note on Treaties, Real and Fictitious" [2000] IndigLawB 46; (2000) 5(1) Indigenous Law Bulletin 12

A Brief Note on Treaties, Real and Fictitious

By Isabelle Schulte-Tenckhoff

In December 1999, the ratification process of the ‘modern treaty’ with the Nisga’a in British Columbia raised considerable controversy in Canada. With much of the national debate focusing on the political appropriateness or economic viability of this kind of agreement, little attention has been paid to the conceptual issue at stake: since the Nisga’a agreement is not governed by international law, why call it a treaty, and a modern one at that? One obvious reason lies in the ‘paramount importance’ that treaties have for Indigenous peoples in settler-colonial states.[1] In promoting ‘modern treaties’, Canada thus resorts to a formidable sales argument, so to speak. Moreover, the modern treaty concept has the added advantage of covering up the predicament of the Canadian constitutional order – a predicament highlighted by the conclusions and recommendations of the recently completed United Nations Study on treaties between Indigenous peoples and states.[2]

Squaring the Circle

In dealing with Indigenous peoples, Canada affirms perpetuating the legacy of the Royal Proclamation of 1763: aboriginal title is regarded as a burden on the Crown’s sovereignty, to be lifted through the conclusion of negotiated agreements. Under present conditions, such agreements are dealt with entirely in the domestic framework, that is, under the federal policy of comprehensive land claims settlements whose most recent example is the Nisga’a ‘treaty’ referred to above. This policy is said to be a direct extension of nineteenth-century British treaty policy: ‘treaties – both historical and modern – and the relationship they represent provide a basis for developing a strengthened and forward-looking partnership with Aboriginal people.’[3]

This federal policy statement deliberately confuses the relationship between the treaty relationship and ‘partnership’. Partners are generally individuals or corporations, not peoples and nations, and their relationship is a contractual one. The strong business connotations of the idea of partnership are echoed in the well-worn argument that uncertainties with regard to domains of strategic interest such as lands and resources are likely to impede economic development. For the Canadian Government, the remedy thus consists in achieving ‘certainty’ by defining unequivocally the rights pertaining to land use and ownership. In this manner, any doubt on the matter of aboriginal rights and aboriginal title is removed, allowing non-Indigenous parties to use and appropriate Indigenous lands and resources. Therefore, in negotiating with Indigenous peoples, Canada has consistently imposed the non-negotiable requirement of either complete – or, more rarely, partial – extinguishment of aboriginal title, to ensure that any rights likely to flow from the latter are henceforth defined solely under the terms of the agreement reached.[4] By the same token, the Indigenous party is deprived of further recourse through invoking the survival of aboriginal title in common law – or, for that matter, international law. From the state perspective, then, ‘certainty’ means not having to engage with one fundamental premise of the debate over native title, namely that ‘Aboriginal peoples’ rights to their traditional lands are not derived from the legal systems which the Europeans imposed upon them.[5]

The United Nations Study on treaties between Indigenous peoples and states shows the importance of distinguishing clearly between domestic policies promoting ‘partnership’ and the treaty relationship. Independently of conflicting (state vs. Indigenous) treaty interpretations,[6] treaties are instruments with international status: the more so since settler-colonial states tend to invoke these to argue the lawful acquisition of rights – if somewhat paradoxically, for the dominant legal approach otherwise goes to considerable pains to qualify treaties involving Indigenous peoples as sui generis (a unique creation) with the sole purpose of denying Indigenous peoples any standing in international law. The international status of such treaties persists nonetheless ‘if only because the “legitimization” of their colonization and trade interests made it imperative for European powers to recognize indigenous nations as sovereign entities.’[7]

Indigenous Treaties: Setting the Record Straight

In the late 1980s, the United Nations mandated Miguel Alfonso Martínez as Special Rapporteur to conduct a study on the relevance of treaties for the establishment of better relations between Indigenous peoples and the states in which they now live. Three main aspects are covered in the different reports submitted by the Special Rapporteur over the last decade: the origins of treaty-making between Indigenous peoples and states, the contemporary significance of such treaties, and the relevance of the treaty model for conflict resolution. The Study is based on some thirty case studies from across the world, and addresses three main juridical situations. These are treaties and so-called other constructive arrangements which are essentially domestic (including the agreements negotiated under the Canada’s comprehensive land claims settlement policy[8]), without neglecting the situation of Indigenous peoples not party to any such legal instrument (including the Aboriginal peoples in Australia)[9].

The Study had to tackle two major challenges: to address Indigenous treaty discourse and practice on an equal footing with that of states; and to elaborate a critical and interdisciplinary approach in order to transcend any Eurocentric or legalistic bias and consider the plurality of legal systems.[10] Two important conclusions arise from this. For one, Indigenous treaties ‘cannot be approached exclusively on the basis of juridical reasoning’, for the problems involved are also political in nature, their solution thus requiring political will.[11] Moreover, one is confronted with an ethical problem, for ‘humanity has contracted a debt with indigenous peoples.’[12]

In reaffirming the international character of treaties between European powers (or their territorial successors) and Indigenous peoples,[13] Miguel Alfonso Martínez was led to analyse critically the manner in which the nation-to-nation relationships thus established have been compromised by a process of ‘retrogression’ depriving Indigenous peoples of three of the four attributes of peoplehood: their territories, their capacity to enter into international agreements, and their own forms of government.[14] Such retrogression or domestication has also affected the dominant legal approach with regard to treaties and the legal personality of Indigenous peoples. Through domestication, the debate over Indigenous rights has thus been confined to the realm of the state in disregard of the historical relationship Indigenous peoples have as sovereign nations with their traditional territories. For Indigenous peoples to (re)gain control over their lands and resources, it is therefore essential to reverse the process of domestication and to combat its impact on legal thinking and standard-setting.[15] Indeed, the Special Rapporteur considers the rights of Indigenous peoples to their lands and resources as the ‘paramount problem to be addressed in any effort to establish a more solid, equitable and durable relationship between the indigenous and non-indigenous sectors in multi-national societies.’[16]

Looking Ahead

In international law all peoples, including Indigenous peoples, have the right of self-determination. While treaties bear witness to the existence of that right, they do not create it. Therefore, Indigenous peoples not party to treaties or similar instruments have no less status as peoples, and the onus to prove otherwise falls on the party challenging that status.[17] Consequently, ‘any contradiction that may emerge between the exercise of [the right of self-determination] by indigenous peoples in present-day conditions and the recognized right and duty of the States in which they now live to protect their sovereignty and territorial integrity, should be resolved by peaceful means, first and foremost negotiations; through adequate conflict-resolution mechanisms [...]; preferably within the domestic jurisdiction; and always with the effective participation of indigenous peoples.’[18]

It is worth noting that the Special Rapporteur considers any negotiated solution as appropriate in principle, whether domestic or international, as long as it satisfies all interested parties and is reached in a consensual manner and on an equal footing. Experience shows, however, that in the domestic realm the state party generally has the upper hand: ‘existing State mechanisms, either administrative or judicial, are unable to satisfy [Indigenous peoples’] aspirations and hopes for redress.’[19] Therefore, it may be preferable to resort to international mechanisms of either conflict resolution or treaty adjudication, depending on circumstances.

Isabelle Schulte-Tenckhoff is an Adjunct Professor at McGill University, Montreal, Canada, and a member of the Collège International de Philosopie in Paris, France. She has been involved for over twenty years in the international debate over the rights of Indigenous peoples; from 1991 to 1997, she was the consultant for the UN Special Rapporteur on treaties between Indigenous peoples and states.

[1] See José Martínez Cobo, Study on the Problem of Discrimination against Indigenous Populations, vol. 5: ‘Conclusions, Proposals and Recommendations’ (New York: United Nations, 1987) para 388.

[2] Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations. Final Report by Miguel Alfonso Martínez, Special Rapporteur, UN Doc E/CN.4/Sub.2/1999/20 (also on <http: //>).

[3] Gathering Strength: Canada’s Aboriginal Action Plan (Ottawa: Public Works and Government Services 1997) 10. The Canadian equivalent of Mabo v Queensland [No.2] [1992] HCA 23; (1992) 175 CLR 1 was Calder v A.G. B.C. [1973] S.C.R. 313. Soon after Calder, the Canadian Government established its comprehensive land claims policy.

[4] Eg Canada, Department of Indian Affairs and Northern Development, Comprehensive Land Claims Policy (Ottawa: Supply and Services Canada 1986).

[5] Kent McNeil, ‘The Meaning of Aboriginal Title’ in Michael Asch ed., Aboriginal and Treaty Rights in Canada (1997) 135, 136 (emphasis added).

[6] Isabelle Schulte-Tenckhoff, ‘Rangatiratanga - kawanatanga: qui est souverain en Aotearoa-Nouvelle-Zélande?’ in Hervé Guillorel & Geneviève Koubi eds, Langues et droit (1999) 57; Sharon Venne, ‘Understanding Treaty 6: an Indigenous Perspective’ in Michael Asch ed., Aboriginal and Treaty Rights in Canada (1997) 173.

[7] Study on Treaties, note 2, para 111.

[8] Ibid para 137-138.

[9] Ibid para 160.

[10] Ibid para 97-99.

[11] Ibid para 254.

[12] Ibid para 255.

[13] Ibid paras 271, 274.

[14] Ibid para 105.

[15] Isabelle Schulte-Tenckhoff, ‘Reassessing the Paradigm of Domestication: the Problematic of Indigenous Treaties’ (1998) 4 Review of Constitutional Studies 239.

[16] Study on Treaties, note 2, para 252.

[17] Ibid para 288.

[18] Ibid para 256.

[19] Ibid para 261.

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