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.