Indigenous Treaties Need To Be Honoured

Gina Starblanket is legally wrong to assert that there was a 'dispossession of Indigenous peoples lands, minerals and natural resources.' In fact, all were legally surrendered to the Crown by Treaty 6 — write Dr. Hymie Rubenstein and Peter Best

Dr. Gina Starblanket, an indigenous governance scholar at the University of Victoria, asserted in a late Dec. 22, 2022 Policy Options essay titled Saskatchewan does have a constitution; it’s called Treaty that its “provincial government has much to learn about the political history of the lands to which it lays claim,” as seen by its alleged dishonouring of nation-to-nation treaty relationships.

More particularly, she opined that there was merit to the January 20th “Onion Lake Cree Nation call for Indigenous people to unite in opposition not only to a scheduled auction of Crown land leases” but to “a matter to which First Nations groups have been calling attention for decades – the dispossession of our lands, minerals and natural resources in areas covered by treaties.”

Globe and Mail resident Indigenous columnist Tanya Talaga went even further by arguing that when Scott Moe’s Saskatchewan government introduced the Saskatchewan First Act, which asserts the province’s “exclusive constitutional jurisdiction over natural resources”  … it signalled its willingness to ignore Section 35 of the Constitution, which recognizes and affirms Aboriginal and treaty rights and obliges the Crown to consult First Nations when these rights could be adversely affected.

In her Dec. 21, 2022, opinion piece titled “By ignoring the duty to consult First Nations, three Canadian premiers show their true colours,” she opined that Alberta Premier Danielle Smith’s Sovereignty Act “is contrary to the spirit and intent” of Treaty 6, and that chiefs in both Saskatchewan and Alberta have said they were not consulted before either bill was introduced, contrary to Canadian law.

Her third villain is Doug Ford whose Ontario government passed Bill 23 – the More Homes Built Faster Act – in November, declaring that “Despite efforts by First Nations chiefs to meet with Housing Minister Steve Clark first, the bill passed without Indigenous consultation.”

She also complained that “Both pieces of legislation reduced First Nations’ input to the merely performative. Bill 23 also removes requirements for public meetings on certain planning matters and the right to appeal certain planning decisions, meaning community members wouldn’t be able to challenge decisions made on developing land and natural areas.”

These three Premiers, “are behaving like ridiculous, greedy children, choosing to be wilfully blind about federalism and Canada’s self-professed creed of peace, order and good government,” Talaga asserted.

More important still, she concluded that “By ignoring their duty to consult First Nations, their governments have shown their true colonial colours. First Nations are sovereign nations, as Section 35 enshrines, and they should be treated as such. Canada is a nation, after all, only because of the treaties that were signed.”

With respect to both Indigenous activists, their assertions have no legal standing or historical grounding.

Both are legally wrong to assert that Saskatchewan had to “engage with Indigenous peoples” when drafting legislation. It is only in the implementation of Crown laws that the duty to consult might arise.

Starblanket is legally wrong to assert that there was a “dispossession of Indigenous peoples lands, minerals and natural resources.” All were legally surrendered to the Crown by Treaty 6.

Starblanket was also legally wrong to invoke UNDRIP, which is at most a federal interpretation statute, having no bearing on how Saskatchewan exercises provincial jurisdiction for provincial purposes over its own Crown lands.

The Restoule case she misleadingly refers to is headed to the Supreme Court of Canada, and there Ontario is arguing, amongst other things, that the trial judge’s finding that the Robinson Treaties were “sharing” agreements was contrary to the plain meaning of the treaty words and contrary to the behaviour of the parties for 150 years after they were signed. The situation there is far more complex and uncertain than she indicates.

Both are legally wrong to assert that there is a “violation of treaty rights” by Saskatchewan; it’s more likely that Onion Lake Cree Nation is violating Treaty 6.

Treaty 6 was signed in 1876 by the ancestors of the Onion Lake Cree Indian Reserve. Like all the other numbered treaties, Treaty 6 established neither “First Nations” nor “nation-to-nation treaty relationships.”

Both are recently invented or resurrected terms of questionable contemporary legal standing, a process obscuring the fact that on the Prairies, loosely structured indigenous bands or tribes fought their neighbours over the same lands and resources for hundreds of years. Warfare exploded after the arrival of Spanish horses in the 18th century.

Among other things, treaties were pursued by the British, not only to obtain land surrenders, but  to end inter-tribal battles.

Treaty 6 refers to the Indigenous bands and tribes subject to its provisions as Queen Victoria’s “Indian subjects.” (Italics added)  This Indigenous admission in Treaty 6 of their subservient and subordinate legal status is hardly a valid basis for Dr. Starblanket’s assertion that Saskatchewan First Nations are “sovereign” nations.

In exchange for the surrender of 121,000 square miles of land: “To have and to hold the same to Her Majesty the Queen and Her successors forever,” the Treaty 6-signing bands received in exchange, among other considerations, “reserves for farming lands, due respect being had to lands at present cultivated by the said Indians, and other reserves for the benefit of the said Indians, to be administered and dealt with for them by Her Majesty's Government of the Dominion of Canada.”

The plain and obvious wording of Treaty 6 constitutes both a denial of Indigenous sovereignty and absolute legal justification for the provincial government “to sell off nearly an estimated 2 million acres of Crown lands since 2007, which allows them to be converted to private property subject to minimal regulation and oversight by federal, provincial or Indigenous governments.”

Treaty 6 goes on to say that:

No genuine sovereign nation would ever have agreed to this, more evidence Treaty 6 was an Indigenous sovereignty surrender agreement.

Treaty 6 further states:

“And the undersigned Chiefs on their own behalf and on behalf of all other Indians inhabiting the tract within ceded, do hereby solemnly promise and engage to strictly observe this treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen.”

This was a clear Indigenous promise to respect and obey the Queen’s laws, which include the Saskatchewan First Act, which Act does not affect section 35 Indigenous rights, and Saskatchewan’s Jan. 31 auction of its own Crown land.

But for Dr. Starblanket, this apparently was an empty promise because, according to her, “Indigenous people in Saskatchewan have always understood treaties as ongoing relationships intended to grow over time and to ensure the continuity of our responsibilities to Creation and to future generations.”

The writers remind Professor Starblanket of the Supreme Court of Canada’s statement in the Badger case:

“A treaty represents an exchange of solemn promises between the Crown and various Indian nations. It is an agreement whose nature is sacred.”

A treaty is a two-way street.

Accordingly, it’s wrong for Dr. Starblanket, simply because she doesn’t like certain Treaty 6 provisions, to, on her own, ignore their plain and obvious meaning, and then simply declare the provisions in effect “empty” and thus not binding on the Indigenous Treaty signers.

Finally, the Indigenous signers of Treaty 6 made other sacred promises. They promised that:

“… they will in all respects obey and abide by the law, and they will maintain peace and good order between each other, and also between themselves and other tribes of Indians, and between themselves and others of Her Majesty's subjects, whether Indians or whites, now inhabiting or hereafter to inhabit any part of the said ceded tracts, and that they will not molest the person or property of any inhabitant of such ceded tracts, or the property of Her Majesty the Queen, or interfere with or trouble any person passing or travelling through the said tracts, or any part thereof, and that they will aid and assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this treaty or infringing the laws in force in the country so ceded.”

If these promises – none of which say that the Aboriginal signatories and the Crown would equally share the same lands or resources – don’t represent a surrender of sovereignty, the term itself has no meaning.

Today the descendants of those who agreed to abide by all these Treaty conditions claim they are a sovereign people. This assertion not only denies that they are good and loyal subjects of His Majesty King Charles III, but represents a serious breach of a sacred promise if there ever was one. Still, it is a declaration no one in federal authority is willing to challenge.

If the Onion Lake Cree Nation is the “self-governing nation” they say they are, they should, as any self-respecting nation would, act honorably and respectfully towards their treaty partner -- just as they in turn expect to be treated -- and declare their intention to uphold all their sacred treaty promises, which includes respecting the Jan. 31 Crown auction of Crown lands.

Special to The Dorchester Review.

Hymie Rubenstein is editor of The REAL Indigenous Issues Newsletter and a retired professor of anthropology at the University of Manitoba.

Peter Best is a retired lawyer who lives in Sudbury, Ontario. He is the author of There Is No Difference- An Argument for the Abolition of the Reserve System, which has been endorsed by retired Supreme Court of Canada Justice Jack Major.