Native American treaties and agreements in Canada

Tribes affected: Pantribal

Significance: The character of treaties between the Canadian government and Canada’s Indian peoples has varied as Indians have lost and partially regained power

The capture of Quebec from the French in the Seven Years’ War (French and Indian War) in 1760 allowed Britain to consolidate its holdings in North America. In order to establish colonial governments in the newly obtained Quebec and Florida, King George III issued what has become known as the Royal Proclamation of 1763. A provision of the proclamation reserved for the Indians all lands to the west of Upper Canada and provided a mechanism for the Crown to purchase these and other lands from the Indians. Since the French had never recognized aboriginal title in their colonies, however, Quebec and those portions of the Maritimes captured from the French were exempted from this provision of the proclamation.

The early Indian treaties reflected the strong military position of the Indians, and the stated purpose of most treaties was simply peace and friendship. The Indians were important in military rivalries, first between the French and the British and later between the British and the Americans. There were relatively few Europeans compared with Indians, so land cessions were relatively small and were accomplished with one-time payments (usually in the form of trade goods).

After 1812, the Indians were no longer militarily significant, and the character of treaties changed. In recognition of their weaker position, Indians began to make greater demands for relinquishing their lands. European needs for agricultural lands increased at the same time as a result of increased emigration from Europe. In an effort to save money, the Europeans began the practice of issuing annuities rather than one-time payments. In 1817, a land cession treaty was signed with the Saulteaux and Cree to permit the establishment of the Red River Colony of Thomas Douglas, Earl of Selkirk. This was the first treaty which entirely ceded native title to lands west of Upper Canada.

In 1850, Special Commissioner W. B. Robinson concluded two treaties with the Ojibwa living along the northern shores of Lakes Huron and Superior. Known as the Robinson-Huron and Robinson-Superior treaties, they were signed after the Ojibwa requested that the Europeans purchase the land before mining it. These two treaties set the precedent of permitting Indians to continue hunting and fishing on their ceded territory.

The Situation at Confederation

Canada was created as a nation in 1867 with the confederation of Nova Scotia, New Brunswick, Quebec, and Ottawa into the Dominion of Canada. The British North America Act, which created Canada, charged the Dominion with discharging the Crown’s duties toward the Indians. In 1870, much of the remainder of present-day Canada was transferred from the Hudson’s Bay Company to the new nation. This transfer illustrates a paradox in the history of relations between natives and whites in Canada. While the Royal Proclamation of 1763 preserved native title to this transferred territory and established the Crown as the only legitimate purchaser of Indian lands, the sale of Rupert’s Land by the Hudson’s Bay Company indicated disregard of aboriginal title. Furthermore, in order to facilitate white settlement in the new territory and to connect, via railroad, the settlements in eastern Canada with the colony of British Columbia, the Crown moved to extinguish any remaining native title to that region. Seven treaties, covering much of present-day Canada, were concluded between 1871 and 1877. The provisions of the treaties varied only slightly and were similar to the two Robinson treaties.

The Numbered Treaties

Treaties 1 and 2, negotiated in 1871, were virtually identical and covered lands held by the Swampy Cree and Chippewa (Ojibwa) in southern Manitoba and southeastern Saskatchewan. In exchange for relinquishing title to 52,400 square miles, the Cree and Chippewa were promised 160 acres of reserved land for each family of five, a school, farm implements, a gift of three dollars for each person, and an annuity of three dollars per person. Chiefs and headmen were awarded additional payments. The area covered by Treaty 1 included the Red River farmsteads of the Metis.

With the signing of Treaty 3, known also as the North-West Angle Treaty, in 1873 by the Saulteaux, the initial payment was raised to twelve dollars and the annuity was increased to five dollars per person. Larger reserves (one square mile per family) were also granted, as well as the continued rights to hunt and fish on unoccupied lands. This provision to allow traditional subsistence activities on the ceded territories appears in the remainder of the numbered treaties. As the prairie provinces were established, however, most of the Crown’s lands were transferred to the provinces. Increasingly, the courts have ruled that native Canadians are subject to provincial game laws.

Treaty 4, signed in 1874 by the Saulteaux and Cree, encompasses southern Saskatchewan and small portions of Alberta and Manitoba. Treaty 5 was made in 1875 with the Saulteaux and Cree of central Manitoba and extended to northern Manitoba in 1908. The Blackfeet, Blood, Piegan, Sarcee (Sarsi), and Assiniboine tribes of southern Alberta agreed to Treaty 7 in 1877.

Treaty 6 was made in 1876 with Poundmaker’s and Crowfoot’s Plains and Wood Cree bands in central Alberta and Saskatchewan; however, the bands led by Big Bear refused to sign until 1884 and succeeded in obtaining somewhat greater concessions. The failure of the government to meet the obligations to which it agreed in the treaty are among the factors that contributed to the Riel Rebellion of 1885. Treaty 6 is interesting also in that it is the only one of the numbered treaties that mentions medical care for Indians. It provides that the Indian agent on each reserve maintain a “medicine chest” for the benefit of the Indians. It is likely that medical care was verbally promised during negotiation for other treaties but was not written into the final documents.

Twenty-two years passed between the signing of Treaty 7 and the next set of treaty negotiations. The last four numbered treaties were made in order to make way for northern resource development rather than to permit white settlement. Treaty 8, signed in 1899 with the Beaver, Cree, and Chipewyan, covers portions of Saskatchewan, Alberta, the Northwest Territories, and British Columbia. It is the only treaty covering the Indians of British Columbia. Several small treaties had been negotiated between coastal tribes of British Columbia and the Hudson’s Bay Company in the 1850’s, but because the Hudson’s Bay Company had no authority to negotiate for the Crown, these treaties were not considered valid. After British Columbia entered Confederation in 1871, an attempt was made to have that province negotiate treaties; other than granting several small reserves, the province refused to acknowledge aboriginal title.

Ontario joined with the federal government in the making of Treaty 9 with the Ojibwa and Cree of north central Ontario in 1905 and 1929. The Cree and other Indian groups ceded their remaining territory in northern Saskatchewan with Treaty 10 in 1906.

Treaty 11 was signed in 1922 with the Dene (Slave, Dogrib, Loucheux, and Hare) Indians who occupy the Mackenzie River region between the sixtieth parallel and the Arctic coast. The impetus for this treaty was the discovery of oil a year earlier at Norman Wells.

The numbered treaties presumably settled all land claims based on aboriginal title for Indians living in the prairie and western Subarctic regions, but several court cases have thrown that issue into question. In one of the most important of these cases, Re Paulette et al. and the Registrar of Titles (1974), the court held that the Indians covered by Treaties 8 and 11 had not, in fact, extinguished their aboriginal titles to the land.

Modern Land Claims Agreements

The court decisions, coupled with the politicization of Native Canadians, led the federal government to rethink its position on the issue of aboriginal title. The government’s desire to develop the natural and mineral resources in its northernmost territories created the conditions necessary for comprehensive land claims settlements. Between 1975 and 1992, five major land claims agreements were concluded. Varying levels of progress were made on several others.

The first of these modern land claims agreements, known as the James Bay and Northern Quebec Agreement, was signed in 1975 by Inuit and Cree of northern and northwestern Quebec, the federal government, and the Province of Quebec. The agreement cleared the way for Quebec to begin hydroelectric development in James Bay. The Northeastern Quebec Agreement, concluded in 1978 with the Naskapi, was for the same purpose.

The James Bay and Northern Quebec Agreement provided $225 million, divided proportionally between the Inuit and the Cree for the lands (excluding mineral rights) in the immediate vicinities of their communities. The natives were allowed to retain exclusive hunting and fishing rights over a much larger area; however, the flooding caused by the hydroelectric development has caused major disruptions of wildlife.

The Inuit chose to form public municipal-type village governments with powers over zoning, taxation, public health, housing, and education. The Cree made their communities into reserves. Representatives of both groups serve on environmental and economic development boards meant to monitor the development of the region.

National native organizations have been highly critical of the James Bay land claims agreements largely because of the clauses that extinguish aboriginal rights. Because the term “aboriginal rights” was not defined, future understandings of its scope have also been negotiated away. In addition, the vague language of the agreement has allowed both the Quebec and federal governments to shirk their obligations.

Far more generous than the James Bay Agreements are the two land claims settlements achieved by the Inuit of the Northwest Territories. The Inuvialuit Final Agreement, which was signed in June, 1984, settled the claim of the twenty-five hundred Inuit living between the Yukon border and central Victoria Island. Under the agreement, the Inuvialuit (or western Inuit) retained title to 91,000 square kilometers but mineral rights to only one-seventh of that land. The Inuvialuit surrendered land covering 344,000 square kilometers. In exchange for the land cessions the Inuvialuit received $152 million to be paid over a thirteen-year period. In an arrangement similar to that established by the Alaska Native Claims Settlement Act, the money has been paid to the Inuvialuit Regional Corporation, which was chartered to invest the proceeds and to manage the land retained by the Inuvialuit. In contrast to the provisions of the numbered treaties, all income earned by the Inuvialuit Regional Corporation from either its lands or investments is subject to taxation.

The Eastern Arctic Claim was negotiated between the federal government and the Tungavik Federation of Natives. Signed in 1992, it settled the claim of seventeen thousand Inuit living in the area of the Northwest Territories between Coppermine and Baffin Island. The claim established Inuit title to 352,000 square kilometers (9.9 percent of the total land and offshore area), making the Eastern Arctic Inuit the single largest landholder in Canada. Unlike other land claims agreements, the Eastern Arctic Agreement includes offshore areas, which continue to be vital food sources. In exchange for relinquishing claim to the remaining territory, the Inuit are to receive $580 million as well as resource royalties earned from their lands. Perhaps the most substantial concession made by the federal government was to allow the Inuit to govern themselves through the formation of a new territory to be known as Nunavut.

Negotiations between the governments of Newfoundland and Canada and the thirty-five hundred Inuit of Labrador have proceeded slowly since 1978. In 1988, agreements in principle were signed between the federal government and the Yukon Council of Indians and with the Dene-Metis Association of the Mackenzie River region. Neither agreement was concluded. At their annual meeting in July, 1990, the Dene Assembly failed to ratify the accord because of divisions within the organization over the “extinguishment” of the still undefined aboriginal rights. After the failure of the Dene-Metis Land Claims Agreement, the federal government agreed to settle the claim on a region-by-region basis. The communities situated along the lower Mackenzie River signed the Gwich’in Final Agreement a year later. The agreement provides resource royalties and $75 million cash in exchange for relinquishing aboriginal rights and title to most of the region. The Gwich’in (Delta area) natives retained title to slightly more than 21,000 square kilometers. They also retained the subsurface mineral rights to about one-fourth of that land. As with the Eastern Arctic Agreement, the Gwich’in Final Agreement established a framework for self-government.

Bibliography

Dickerson, Mark O. Whose North? Political Change, Political Development, and Self-Government in the Northwest Territories. Vancouver: U.B.C. Press, 1992. Discusses the contemporary political issues facing the Dene, Metis, Inuit, and non-native residents of northern Canada.

Getty, A. L., and Antoine S. Lussier, eds. As Long as the Sun Shines and the Water Flows: A Reader in Canadian Native Studies. Vancouver: University of British Columbia Press, 1983. A collection of articles covering relations between the Indians and the Canadian government from the time of the Royal Proclamation of 1763 to the constitutional crisis of the 1980’s.

Morris, Alexander. The Treaties of Canada with the Indians of Manitoba and the North-west Territories. Toronto: Belfords, Clark & Co., 1880. Reprint. Toronto: Coles, 1971. An account by one of the negotiators of Treaties 3 through 6.

Morse, Bradford W., ed. Aboriginal Peoples and the Law: Indian, Metis, and Inuit Rights in Canada. Ottawa: Carleton University Press, 1985. A thorough discussion of all aspects of Canadian law (including treaties) as they apply to native peoples.

Purich, Donald J. The Inuit and Their Land: The Story of Nunavut. Toronto: James Lorimer, 1992. Contains a thorough discussion of each of the Inuit land claims agreements, paying special attention to the Eastern Arctic Agreement and the preparations for native self-government in the proposed New Nunavut Territory.