Treaties: The Terms of Indigenous Permissions

Treaties between Indigenous Peoples and the Crown are necessary to build Canada’s law on a healthy foundation. Without treaties, Crown assertions of governance and title are not legitimate within Indigenous peoples’ legal orders. As the US Supreme Court wrote in 1905: “treaties are a grant of rights from the Indians.” If the Crown cannot trace its place in North America to Indigenous peoples’ laws, it cannot govern in the healthiest way. This holds for areas where treaties are a reality. Promises must be fulfilled in ways which respect and advance Indigenous peoples’ legal orders. The failure to achieve this hinders meaningful reconciliation.

When Indigenous peoples and the Crown sat together and negotiated the terms of historical treaties, each party came to the treaty fire with their own cultural and spiritual construct from which they entered into these exchanges of promises. The manner in which those promises formed the foundation of the relationship between Indigenous peoples and the Colonial, and then Canadian governments, has created a dominance over Indigenous people, both legally and socially, in a way that is not supported by what Indigenous peoples can legitimately be said to have relinquished when they entered into treaties.

The Crown has far from met its treaty obligations. Further, and critically, the manner in which the Crown has limited its response to its obligations through time has created a legal subservience in Indigenous peoples that was never contemplated by treaty. There is ample evidence of the gravitas Indigenous people brought to the negotiations. Likewise, there is evidence of their very real expectations that the promises made by the Crown were binding on it, as were their own promises on them.

The sacred and binding nature of the spirit of those promises haunts modern-day relationships with the Crown. It is weighted down by the systemic injustice perpetuated by a fundamental and consistent refusal by the state to truly honor the spirit and intent of those promises. Twenty-one years into the twenty-first century we are at a crossroads where we have lost the luxury of time. Currently, sixty-one First Nations are without potable water. At the most basic level of survival needs, the post-colonial regime has sustained a stance in its relationship with Indigenous people that has influenced an entire county to consider this state of emergency as unimportant; to endorse a persistent dismissal of this as a priority, in spite of glowing promises to do otherwise.

John Borrows OC, throughout his career has articulated the necessity of reconciling with the earth as foundational to any resolution of the relationship between Indigenous people and the Crown.

To illustrate this necessity, Borrows and Good will discuss the difference between reconciliation and resurgence, in the context of treaty promises, and what can illuminate the way forward.

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Michelle Good is of Cree ancestry, a descendent of the Battle River Cree and a member of the Red Pheasant Cree Nation. She has worked with indigenous organizations since she was a teenager and at forty decided to approach that work in a different way obtaining her law degree from UBC at 43. She has practiced law in the public and private sector since then, primarily advocating for Residential School Survivors.

She graduated from UBC with a Master of Fine Arts Degree in Creative Writing MFA in 2014 where her novel Five Little Indians first started taking shape. Her poetry, and short stories have appeared in a number of publications. Her first novel, Five Little Indians won the HarperCollins/UBC Best New Fiction Prize and her poetry has been included in Best Canadian Poetry in Canada 2016 and Best of the Best Canadian Poetry in Canada 2017. She was nominated for the Scotiabank Giller Prize, Finalist for the Writer's Trust Prize and Finalist for the Evergreen Award.

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Dr. John Borrows, BA, MA, JD, LLM, PhD, LLD, FRSC, is Canada's pre-eminent legal scholar and a global leader in the field of Indigenous legal traditions and Aboriginal rights. John holds the Canada Research Chair in Indigenous Law at the University of Victoria as well as the Law Foundation Chair in Aboriginal Justice and Governance.

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