Approaching The Past

Approaching the Past: Perspectives on Treaty The subject of treaties between the Canadian Government and the Aboriginal peoples is a complex and multi-faceted one, with perspectives on the treaties themselves equally varied. This paper will explore and describe the approach to treaties, along with the philosophies they are founded on, from three different parties’ perspectives; first the Aboriginal people, followed by the Canadian Government, and last the Canadian and international courts. The essay will conclude with a survey of the intent and implications of its content, thereby forming the individual perspective of its author. The first interpretation - that of the Aboriginal people could be called the “spirit and intent” approach. The Aboriginal people and the Europeans who came and sought treaty with them view the world very differently. From the Aboriginal perspective, the land is not able to be sold. They view the land they live on, indeed their entire worldview, from a cyclical perspective. In the words of Leroy Little Bear, recipient of the National Aboriginal Achievement Award, “This philosophy is a result of a direct relationship to the macrocosm. The sun is round; the moon is round; a day is a cycle (daylight followed by night); the seasons follow the same cycle year after year. A characteristic of cyclic thinking is that it is holistic, in the same way that a circle is whole… Indian ownership of property, like Indians’ way of relating to the world, is holistic. Land is communally owned; ownership rests not in any one individual, but rather belongs to the tribe as a whole, as an entity…. everybody, as a whole, owns the land, owns the whole. Furthermore, the land belongs not only to people presently living, but also to past and future generations…and also to other living things (the plants and animals and sometimes even the rocks); they, too, have an interest (Little Bear 1991: 245).”

After coming to a clearer understanding of this cyclical, holistic worldview the First Nations peoples existed in, it is evident that they must have meant something other than the wording found in the original text of the treaties themselves. From the point of view of the Indians signing treaty, they were not in a position to “fully, freely and voluntarily surrender, cede, grant and convey unto Her Majesty…forever… (Morris 1862: 303)” the land upon which they lived. From the point of view of the Aboriginal peoples, the land was granted by the Creator to all living things to live by. It was for people as well as

animals as well as plants – even the stones and rocks - to use; no one owned it in such a way as to be able to sell it and give it to someone else(Little Bear, 246). From this perspective we can appreciate how Aboriginal peoples claim that in signing the treaties, they were agreeing not to sever their place or relationship to the land, but to share its bounty with the Europeans (ibid.) in return for things like sovereignty, the perpetual right to hunt, fish, and trap, and provisions like education from the Europeans, especially education in agricultural techniques (Opekokew 1980: 11). So why is this? Why is there such an obvious disparity between the indigenous people’s perception of things like property on the one hand and the semantics of the treaties that they agreed and signed to on the other? The explanation is found in another aspect of the original people’s worldview – oral communication. To First Nations peoples, the spoken word is the principal means of making agreements (ibid.), and to them it would be understood that any treaties signed would be subject to all verbal agreements and assurances made. Indeed, some of the original Indians present at the time of the signings seem to have realized this oversight, as evidenced in the account of treaty signing by John Andrew Kerr, (Kerr 1937-38: 193-194). As we shall see, of the three parties to be surveyed - the Aboriginal peoples, the Canadian Government, and the international courts – the former unfortunately stood alone in using both this philosophical worldview and this mode of coming to agreement, a fact that would isolate them and be used against them. The Canadian Government, in contrast to the Aboriginal people’s approach of the spirit and intent of the treaties, has always looked at this subject from a literal standpoint – one where they only take into consideration and are only therefore obliged to honour whatever is found “within the four corners of the document”, and at closer inspection it is clear why. It is important to point out that in addition to the difference between spirit and intent versus four corners of the document, the Canadian government and Aboriginal peoples also hold different worldviews. Where the Aboriginal one can be called circular or holistic, the traditional view held by most Anglo peoples could be described as linear. This perspective says that everything is moving in a line –beginning to end, and the line

can be broken up or divided into smaller parts or lines if we wish. To the Anglos each day is a unique experience, an individual entity to itself; the same for each season and year. This is significant in understanding how each view things like treaty and the land and resources that are their main subject. According to accounts from the time of the signing of the treaties great pains were taken by the commissioners on behalf of the Crown to communicate to the Indian leader(s) that “nothing is binding except that found ‘within the four corners of the document’” (Barkwell 1981). Apparently as shown by the preceding section, they weren’t clear enough in expressing this. And not only this, the Canadian Government has continued to operate from this literal “four corners of the document” approach since that time (ibid.), even going so far as to assert that the treaties aren’t really treaties in the internationally binding sense of the term, but more akin to promises; the rationale being that the various Aboriginal bands are not really nation states, and so the terms and conditions of treaty do not apply (Green 1970: 114-115). Still another example of this literal approach is the issue of a medicine chest to be available for Indian people to use at the office of the Indian agent, found in Treaty #6 (Barkwell 1981). Aboriginal peoples have argued that it would be consistent with the concept of the medicine chest at the time of signing (the spirit and intent) to provide today for all health care needs of Aboriginal peoples. After an appeal against an earlier ruling in favour of this claim, it was instead upheld by the Saskatchewan Court of Appeal that a “truer” interpretation of the concept should be a first-aid kit (ibid.). It would appear from the very beginning of the relationship between the Canadian Government and the indigenous peoples that by their use of terminology and linguistic skill the former were and are very intent and astute at ensuring they maintain the upper hand and reap the lion’s share of any benefits resulting from their shared relations, particularly the treaties they signed.

And what of the third parties in this treaty-signing drama, the Canadian and international courts? The international court is clear in its definition of what a treaty is and how it is to be upheld. According to the United Nations as adopted in the Vienna Convention on the Law of Treaties a “treaty” is “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation….”(Green 1970: 160). The conflict in applying this concept comes about in the question of whether the interested parties (the various Indian tribes and Europeans) at the time of signing were acting in such a way as to be understood as relations between two states? The answer depends on how you look at it. From the European perspective there was in place an operating principle called the doctrine of discovery. At the time of initial contact, the nations of Europe were competing for “discovery of new lands”. In order to maintain an orderly and fair process for claims of discovery it was agreed upon by all European countries that the pope, acting as God’s representative on earth, would grant claims of ownership to whichever “Christian” monarch was first in discovering land occupied by “unchristian” inhabitants, thereby “Christianizing” those lands. It was a win-win situation: the monarchs had a clear way to carry out conquest and prosperity as the pope got to continue the work of “Christianizing” the entire world. So from the Europeans’ perspective, the aboriginal peoples were not a state, rather they came with the land as a “part of the package” as outlined in the doctrine of discovery (Green 1970: 120-121). From the Indians’ perspective it was understandably quite different. In conducting treaty signing with the Europeans they conducted themselves in great acts of pomp and pageantry, as is fitting for any formal agreement between two nations. They conducted themselves in great and dignified manner to show dignity and a respect to the gravity of what each side was entering into – an agreement between two nations, to be peaceful and cooperative partners to whichever degree both parties would sign treaty. The Europeans acquiesced, acting in like manner.

From the Indian’s perspective this was indeed an agreement of relations between nations, and they intended to honour these agreements (Opekokew 1980: 10). So it is we can see the vastly divergent approaches to treaty – the Aboriginal peoples with their spirit and intent approach to agreements, the Canadian government with their crafty four corners of the document approach to maximizing their interests, and the Canadian and international courts with their seemingly solid but actually quite elastic and flexible terms and definitions for concepts like treaties. In conclusion I think it is important after a survey of the overall situation, to stand from the perspective of the First Nations peoples and see what they were confronted with. These were people who didn’t understand or speak English; didn’t understand or operate from a worldview of capital and money and the values the Europeans did. They were forced to rely on and blindly trust the words and character of European translators, individuals whose allegiances were most often with their own peoples. From this viewpoint we can better appreciate what it meant then and still means now of the way these people were approached with the signing of treaties. The treaties were engineered in such a way as to be completely on the terms and from the perspective of the others’ ways. The terms, the basic operating principles, the compensation, the craftily worded conditions and stipulations – this was all in the interest of the Europeans and to the detriment of their hosts. The indigenous peoples’ fate was one of slowly but surely being made to enter into a relationship with an arriving (one could be forgiven for describing it “invading”) people in the Europeans – a people not invited, yet welcomed out of a genuine spirit of hospitality and goodwill. In return they were given a plethora of new diseases from which scores of them died, and then expected to assimilate to a forced and unwanted worldview where they were second class. In the final analysis it would appear the Europeans, in all their civility and gentry were in fact acting as savages.

References Little Bear, Leroy. 1991. “Aboriginal Rights and the Canadian ‘Grundnorm’.” In Arduous Journey: Canadian Indian and Decolonization. Toronto: McClelland and Stewart. Morris, Alexander. 1862. “The Treaties of Canada with the Indians of Manitoba and the North-west Territories: Including the Negotiations on Which They Were Based, and Other Information Relating Thereto.” Reprinted in Coles Canadiana Collection. Toronto: Coles Publishing Company, 1979. Opekokew, Delia. 1980. “Treaties.” In First Nations: Indian Government and the Canadian Confederation. Saskatoon: Federation of Saskatchewan Indians. Kerr, John Andrew. 1937-38. “The Indian Treaties of 1867.” Dalhousie Review 17, 187-195. Barkwell, Peter Alan. 1981. “The Medicine Chest Clause in Treaty No. 6.” Canadian Native Law Reporter 4, 1-23. Green, L.C. 1970. “Canada’s Indians: Federal Policy, International and Constitutional Law.” Ottawa Law Review 4, 101-131.