Indigenous rights in Canada – the 19th century Treaties

“We lived here, we were a nation, we were sovereign. We still believe we are a nation, that this land we live on is ours. But if we don’t continue to move forward as a people, then I foresee more problems. We need to remind this country we are here to stay. We are not immigrants – we have nowhere else to go.”
Rose C. Laboucan, Driftpile Cree Nation (speaking at the IASC International Conference, May 2015).


The first thing one realises, when starting to explore the whole issue of indigenous rights, is the complexity of the situation. We were fortunate, at the IASC Global Commons Conference in Edmonton, to have access to representatives of different indigenous groups, which are usually referred to here as ‘First Nations’, or ‘Treaty Nations’ due to their recognition originally stemming from Treaties made with the Crown. On Day 1 of the Conference last week there was a panel session entitled ‘Treaties: a way of life for Western Canada’s indigenous peoples’ which explored some of the issues stemming from the series of treaties signed by the First nations in the late 19th century, and the way in which the Treaties continue to influence the relationship between indigenous peoples and the Canadian government.

Map of the numbered Treaties
Map of the numbered Treaties

Treaties were made across Canada between 1701 and 1923 starting with the British Crown and finishing with the Government of Canada; the Treaties can be found across 9 provinces and cover 50% of the land area of the country. In the north and west of the country a total of 11 treaties were signed between 1871 and 1921 (referred to as the ‘numbered treaties’) covering Northern Ontario, Manitoba, Saskatchewan, Alberta, the Yukon, the Northwest Territories and British Columbia. The treaties allowed the Canadian government access to land and resources in exchange for providing reserves for the first nations, hunting rights, and access to education and other services. A key problem it seems is that there is a difference in interpretation between the Canadian government and the First Nations who signed the Treaties. For the first nations the oral treaty was the one they recognised, for the Government it was the written document – this difference in interpretation continues to cause problems within Canada.
In Alberta the two key Treaties, covering much of the province – are Treaties 6 and 8. We were reminded, both at the opening ceremony of the conference, and at the panel, that we were on Treaty 6 land, which covers south and central Alberta. Treaty 8, covering most of the northern part of the province and extending into neighbouring provinces, is much more contentious and illustrates the problems when different cultures, with vastly differing levels of power and conceptions about the nature of property, collide.
The First Nations that signed the Treaty viewed it in the following way “…they saw the white man’s treaty as his way of offering them his help and friendship. They were willing to share their land with him in the manner prescribed by their tradition and culture. The two races would live side by side in the North, embarking on a common future.”

Original 1899 Treaty 8 Map (Source: Glenbow Archives)
Original 1899 Treaty 8 Map
(Source: Glenbow Archives)

There was clearly a difference in the way the two sides interpreted the treaty. For the white man it was about surrender of land and access to resources, while for the Treaty Nations it was about sharing the resources in a culture that did not understand the concept of private property. The following excerpt from a research report (Madill, 1986) highlights the issue:
“…it is improbable that the commissioners in their hasty journey through the north could have clarified the interpretation of the treaty, particularly the concept of land surrender…How could anybody put in the Athapaskan language through a Métis interpreter to monolingual Athapaskan hearers the concept of relinquishing ownership of land, I don’t know, of people who have never conceived of a bounded property which can be transferred from one group to another. I don’t know how they would be able to comprehend the import translated from English into a language which does not have those concepts, and certainly in any sense that Anglo-Saxon jurisprudence would understand…and it has continued to puzzle me how any of them could possibly have understood this. I don’t think they could have.”
Mid-way through the 20th century a 1959 Commission (The Nelson Commission) set up to investigate the unfulfilled provisions of Treaties Eight and Eleven, noted that the situation had not altered much:
“It should be noted that although the Treaties were signed sixty and thirty-eight years ago respectively, very little change has been effected in the mode of life of the Indians of the Mackenzie District. Very few of the adults had received an elementary education and consequently were not able to appreciate the legal implications of the Treaties. Indeed some bands expressed the view that since they had the right to hunt, fish and trap over all of the land in the Northwest Territories, the land belonged to the Indians. The Commission found it impossible to make the Indians understand that it is possible to separate mineral rights or hunting rights from actual ownership of land.”

Treaty No. 8 commissioners, northern Alberta, 1899. Left to right, Harrison Young, secretary: Honourable David Laird, commissioner; Pierre D'Eschambault, interpreter. (Source: Glenbow Archives)
Treaty No. 8 commissioners, northern Alberta, 1899. Left to right, Harrison Young, secretary: Honourable David Laird, commissioner; Pierre D’Eschambault, interpreter.
(Source: Glenbow Archives)

Madill in a 1986 report described interviews with elders of the Alberta portion of the Treaty Eight area as providing some revealing comments regarding the Indian interpretation of the written text of the terms and conditions:

“Interviews with Indian elders have indicated that the Indians’ perception of the Treaty Eight provisions – particularly those regarding hunting, fishing and trapping rights, reserve land, social services, education and once-for-all expenditures – differed substantially from those of the government. Of all the treaty provisions, the most significant were hunting, fishing and trapping rights. Indian elders have stated in no uncertain terms that Treaty Eight would not have been signed if the Indians had not been assured that their traditional economy and freedom of movement would be guaranteed…All elders of the Treaty Eight area agreed that the treaty terms provided that there would be no restriction of hunting, fishing and trapping rights.”
The affairs of the First Nations after the treaties were signed were assigned to a small, under-resourced, and distant federal office. The situation was then further complicated in 1905 when control over natural resources was transferred to the newly created provinces of Alberta and Saskatchewan, and ‘the fulfilment of treaty promises, particularly those concerning reserve land and hunting, fishing and trapping rights, were in direct conflict with settler interests as represented by the provincial governments’. A situation was thus created whereby the Treaties were made between the Crown and the First Nations but the implementation became divided between a central government that had signed the treaties, and a provincial government that had not, and thus had no obligation to implement the terms.

The conflicts over the terms of the treaties, the implementation of treaty terms by the Canadian government, and rights to resources continues to the present day. With the development of energy (for example, the Athabasca tar sands) and mineral resources in the northern parts of Canada, and the subsequent environmental impacts on water and ecological systems, the unresolved issues of First Nation treaty rights have come to the fore, and require resolution. There are indigenous communities living around the tar-sand deposits, mostly along the Athabasca River basin area where current development has affected the landscape through de-forestation, hydrological impacts, contamination, and biodiversity.

The Treaty Panel session at the conference included around 40 young people from the Treaty 8 First Nations, many of whom were also involved in creating a poster display in the main auditorium, and were available for discussion during the lunch break.  Some of them were very eloquent, and they made it clear during our discussions that they were Canadians but they also value their culture highly, and the posters clearly indicated the importance they place on the need for a high quality environment, and their concerns over deterioration as a result of pollution and climate change.

“Treaties are an on going issue – treaties need to be upheld and honoured – its not the text – the Canadian text is their version – our elders go by oral treaty – and first and foremost we did not cede and surrender the land.  Under Treaty 8 we have rights to a livelihood, rights to maintain a way of life and rights to retain control over lands and resources.”

Treaty Panel discussion, IASC Conference, Edmonton, 26th May 2015