Reconciling Treaty Relations

The purpose of this important collection of essays by legal scholars and practitioners from a diverse array of legal backgrounds who specialize in Indigenous law is to reconcile the spirit and intent of the 1764 Treaty of Niagara with Canada’s contemporary legal formation. As an event that brought together more than two thousand Indigenous people representing twenty-two First Nations, the signing of the Treaty of Niagara established the political relations of peace, friendship, and respect that secured the legal basis for settlement through the consent of Indigenous peoples. Its foundation, as the editors of The Right Relationship explain, was premised on mutual understanding: Indigenous peoples entered into “sacred agreements” to share their lands with settlers, and Crown officials established “respect for the rule of law” and “democratic self-governance” as the highest aspirations through which treaty relations would be upheld. Despite these solemn promises, treaty relations foundered, placing Canada and its political institutions upon a “dishonorable foundation.” The task of each contributor is to assess this failure while hypothesizing the scope, consequences, and remedies through which treaty partnerships may be rebuilt between Indigenous communities and the Crown, not only by restoring the political intent represented by the Treaty of Niagara, but also by empowering Indigenous sovereignty and the principles of law that constitute Indigenous legal orders.

Several contributors address specifically the viability of these goals. The opening essay by John Borrows condemns Canada’s constitutional failures. Noting the prevalence of legal principles that justify Indigenous peoples’ dispossession and displacement through “doctrines of discovery, adverse possession, and conquest,” Borrows denounces courts for upholding Crown sovereignty while simultaneously affirming Indigenous peoples’ “inferior legal status.” This status has important implications for Indigenous communities. As Michael Coyle explains, it makes it unlikely that Canadian courts will negotiate with Indigenous peoples as equal treaty partners by taking into account Indigenous cultures and world views, even as the Canadian court system remains the only viable means for Indigenous communities to seek reparations for treaty violations. Why courts refuse, resist, or are indifferent to Indigenous world views affords a point of comparison and debate among contributors.

In view of what happens in courts, Kent McNeil analyzes the role of expert witnesses, along with the muddying of distinctions between legal history and legal analysis, in assessing treaty claims. Julie Jai explores how Indigenous peoples lost bargaining power over time, while Francesca Allodi-Ross speculates about Indigenous legal strategies and the dilemmas associated with deciding among individual rights versus collective rights. Sari Graben and Matthew Mehaffey assess the conceptual standing of treaties, exhibiting their principled legal status in contrast to the Crown’s narrow view that they represent antiquated historical documents. Mark D. Walters demonstrates how Indigenous legal orders may be enforceable today, and Aaron Mills/Waabishki Ma’iingan reflects on the legal meanings and cultural associations of treaties.

Linking cultural productions with law, Heidi Kiiwetinepinesiik Stark shows how Anishinaabe creation stories give meaning and purpose to Anishinaabe law. In a different vein, Jean LeClair argues that the absence of Indigenous legal orders in the judicial arena perpetuates the tragic consequences suffered by generations of Indigenous peoples at the hands of the Canadian state, while Sara L. Seck considers the potential of international legal mechanisms for resolving disputes between Indigenous communities and the Crown, noting that such mechanisms may initiate a more robust recognition of treaties as nation-to-nation agreements. Shin Imai berates the Crown’s “infringe-and-justify” framework through which all negotiating parties lose and already impoverished Indigenous communities are forced to court, yet again, to seek reparation and to defend against the Crown’s violation of a First Nation’s treaty rights.

The compelling case studies that run through the collection offer insights for the lay reader about how treaties contribute to law and humanities scholarship. An exceptional analysis by Sarah Morales of the meaning of “good faith” complements and extends a fascinating study of the protection of Maori land rights in New Zealand by Jacinta Ruru. Focusing more closely on law and justice, McNeil’s astute analysis of the role of expert testimony demonstrates how close reading and legal hermeneutics permit insight into the potential for legal decisions to inhibit social change. Delaying justice is also a central concern of Graben and Mehaffey, who, alongside Walters, undertake critically nuanced arguments that support and protect Indigenous sovereignty.

Some questions remain unanswered. Do identity categories such as race, class, gender, and sexual identity make a difference at the negotiating table? Would we oppose Indigenous individual rights to Indigenous collective rights if the issue were pro-choice? Do all parties to resource development lose equally when the risk for investors is financial and the risk for Indigenous communities is their lifeways? In essays by Jai, Allodi-Ross, and Imai, these questions provide opportunities for ongoing engagement with this thoughtful contribution to Indigenous legal studies and law and humanities scholarship.