Hayden King on Treaties and Treaty Relations in Canada – Idle No More

Anishinaabe Scholar Hayden King offers some useful insights for Canadians

by Scott Price January 21, 2015

IC Magazine

There is a serious lack of knowledge (be it willfully or not) on the part of non-indigenous people concerning the treaties that were signed by First Nations and the Canadian government and what those treaties mean for both indigenous and non-indigenous people. In this interview with Hayden King, the Director of the Center for Indigenous Governance at Ryerson University, we address some of these gaps in knowledge. While it is by no means an exhaustive look at treaties and treaty relations in Canada, it offers some information on both topics that will be useful, particularly for settlers.



The interview in transcript form has been edited for length and clarity.

Scott Price: We will start with these two recent court decisions that were made on treaties, one in Grassy Narrows, Ontario and the other in BC, the Tsilhqot’in decision. Talk about how you see the overall theme coming out of these two decisions.

Hayden King: Well I don’t know if I could say there is this overarching theme because the two cases were so different. I guess the one theme that you could take away from the courts cases is that the federal and provincial and first nation’s governments are relying on the courts to decide on these really important issues on the relationship between these diverse governments. I don’t know if it is the preferred avenue to kind of settle these disputes but it seems that is where these disputes are ending and its judges are shaping the parameters and the scope of the relationship. That is sort of the broad theme; but the two court cases are pretty different. Tsilhqot’in covers First Nations that do not have treaties and really specifically it’s about one nation, Tsilhqot’in; but it’s generally about communities that do not have treaties, while Keewatin was a decision that related to communities that already have treaties. Historic treaties, confederation treaties and number treaties.

SP: Talk about the differences in these two decisions. Maybe break it down as concisely as you can about what the differences are then between these two cases.

HK: The Keewatin decision, which came later, was about the community of grassy narrows. They sought to essentially have a greater say in what happens in their land and their territory. So they took the province of Ontario to court because Ontario was continuing to take timber from the land. Timber that they relied upon for everything from food, shelter, medicine and so on. The province continued to take timber out of their territory without their permission. So they wanted to go to court to figure out what the scope of the provinces power were. You know, can the Province override treaty rights, override the relationship between First Nations and the federal government? Or is that relationship, that treaty relationship really about the federal government and the First Nations? The Keewatin decision was really about determining how much power the provinces have to infringe on treaty rights in areas where treaties already exist in the province.

The Tsilhqot’in decision had very similar circumstances. So companies seeking to extract resources from the territory of the Tsilhqot’in. The Tsilhqot’in saying no we are not permitting you to do this. This is our territory and we’ve never surrendered it, we never signed a treaty, we never agreed to share it with you. So the court in this case was asked to look at the provinces role again. How much power does the province have to issue timber harvesting permits, to issue mining licenses to companies in the face of First Nations who have no treaties whatsoever, which in British Columbia is primarily the case.

So in the former case, the Keewatin decision, the judge ruled that the Crown actually includes the provincial governments. So the provincial governments can infringe on this nation to nation relationship, this treaty relationship as long as they follow certain steps. There are a number of steps. They have to consult and accommodate First Nations whose rights are going to be adversely affected and in the Tsilhqot’in decision it was kind of a similar decision but the courts actually recognized the title of the Tsilhqot’in to the land that they have occupied and used. For some, the Tsilhqot’in decision empowered the communities that do not have treaties . For First Nations that do have treaties, like Keewatin, it dealt a blow to aspirations of more rigorous jurisdiction under Canadian law. There are varying interpretations of these judgments. Some people actually view Keewatin favorably, some people view Tsilhqot’in unfavorably. The underlining sentiment of the court in both decisions is that the provincial government has the kind of underlining sovereignty. So it is not a radical departure in either case in that sense; but, I think Tsilhqot’in probably does afford First Nations without treaties more power to leverage their demands to expand their jurisdiction then Keewatin does.

SP: In an article for the Globe and Mail you were talking about how there is sort of a difference of interpretation of what the treaties even mean between First Nations and the federal and provincial government. Could you talk about that because I thought that was an interesting point that you made.

HK: These are treaties that were made before Canada was a country through the confederation era up until 1923. These are often called the Number Treaties; most of them are the number treaties, One through Eleven. They were made to capture land as Canada moved west and sought to settle and kind of make this place that we now know as Canada. In those treaties, an agreement was reached between the Cree and Dene, Ojibwe, Lakota and so on–and Canadians. So there would be an exchange. From the First Nation perspective that exchange would be: yes we will agree to share our land and our resources with you new comers and in exchange for use agreeing to share the land we want some support. We want some educational support. In two treaties, Six and Eight, there is a medicine chest, so we want health care. While most of the number treaties share a similar formula there are slight differences; agricultural assistance, people make the argument for housing. So there are these provisions that First Nations expect in treaties, in exchange for agreeing to share the land.

Now the federal government’s interpretation of the number treaties (and maybe Canadians generally), historically has been that of a transaction. So not this peace and friendship long-term sharing agreement as First Nations view it, but rather that they are a one-time transactional agreement whereby First Nations surrendered the land. Effectively sold the land to Canadians in exchange for these financial annuities forever, like five dollars a year forever, a couple of guns, a one-time first aid kit or something like that. Definitely more transactional and viewing the treaties as something that has been settled. Canadians now own the land because First Nations have surrendered the land to them in a treaty. I would say that those are the two broad interpretations of treaties. There has really been this unwillingness to sit down and earnestly discuss these disparate interpretations and I think that is what has led to most of the conflict we see. Whether it is in Ontario or Manitoba or elsewhere, where there are treaties the conflict sort of boils down to these disparate interpretations.

SP: In the Globe and Mail piece you talked about how, I forget the exact wording, but it was basically that the First Nations’ interpretations of it was taken out of the court decisions anyway or it wasn’t really factored in to making the decision. I’m I remembering that correctly?

HK: There are textual, written versions of the treaties that treaty commissioners had created that essentially had turned into law. Those are seen as legal documents that the court has traditionally relied upon to interpret treaties and interpret what the treaties actually mean. What did Treaty Three, what did Treaty Four actually mean? That is a real problem because the Anishinaabe, the Cree or Neyihew have maintained an oral tradition of the treaties. Although I should say that there are written interpretations of the treaties from the First Nation perspective as well, like the Paypom treaty. But the court relies exclusively on the Canadian version of treaty text, which means they are ignoring the First Nation perspective, the First Nation understanding of the treaty which is shared orally and transmitted through the generations orally. So if the courts are only looking at the written version of the treaty they are ignoring one side of the story. They are only listening to one perspective. So, that’s what happened with Keewatin. That is a fundamental problem with the court that they have not been able to grasp or understand the First Nation perspective which comes along with a complex, sophisticated and often contrary world view as well.

SP: You touched upon it; because of these interpretations and the disparate divide between the two that there is conflict. Here in Manitoba, there has been fairly consistent problems due to hydroelectric projects. There is actually an occupation of a Manitoba Hydro generation station right now. There is also some issues with extraction industries as well, like in Ontario. Looking at that, then, what would proper relations between the Provincial Government and First Nations actually look like in comparison to what we have now?

HK: Right now you have a relationship where the province assumes jurisdiction and First Nations assume jurisdiction. I don’t know the details about the case in Northern Manitoba but it probably relates back to this misinterpretation. Maybe it’s a willful ignorance. A provincial government is not keen to give up jurisdiction in any situation and we know this from Canadian history going back to Constitutional discussions. So, anytime a First Nation asserts its jurisdiction or sovereignty the provincial government is going to be opposed to that and likewise the First Nation generally always views the relationship as the inverse. It’s [they] who have jurisdiction. It’s [they] who have title to the land or some shape of title to the land. In a more progressive relationship, I think it would start with, in the case of Manitoba, Manitoba sitting down with First Nations to come to an agreement about what the treaties actually mean. This could perhaps mean that regional or national leaders are part of this conversation as well. We as First Nations people have always viewed the treaties as long term relationships that need to be revisited. The chain needs to be polished, as the Iroquois would say. Sit down and have that discussion on what treaties mean and have a more equitable and just division of jurisdiction and reasonability to each other and the land. Until that happens, until we can have this dialogue I think you are going to continue to see this conflict.

SP: What would you advise people to look up in terms of articles or books if they are not familiar with treaties and how this works or they are confused about it. What would be resources you would suggest?

HK: There is a vast literature out there, increasingly written by native academics and native writers – but also allies – that people can check out. I think a recent and accessible book that helps frame the general situation that we find ourselves historically in the present is Thomas King’s Inconvenient Indian. For more specific work on treaties, Michael Asche, J.R Miller has written a lot about the plains. Likewise, John Burrows writes a lot from a legal perspective about pre-confederation treaties and their impact on, or potential impact on, the trajectory of Canada. Anthony Hall has written volumes on the subject. I’m really into Jon Parmater’s work at the moment. Then there are the crucial but more general works of Indigenous philosophy – Taiaiake Alfred, Leanne Simpson, Glen Coulthard, Audra Simpson. You’ve got some great academics in Manitoba too, Niigaan Sinclair and Emma LaRoque, for instance. There is plenty of literature out there. The list could go on.

Thanks to Hayden King for taking some time to help fill in a few of the gaps in knowledge surrounding treaties and treaty relations in Canada. With so many indigenous people now striving for ecological and societal justice it is crucial that non-indigenous people understand how they fit in this relationship and to stand with indigenous people so that we can all live in peace and friendship.

Hayden King is the Director of the Center for Indigenous Governance at Ryerson University.

Scott Price is a volunteer at CKUW 95.9fm in Winnipeg