Are Treaties Legally Binding in Canada
- octubre 2, 2022
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Since the government had already opened these areas to white settlement and the exploitation of natural resources, the Commission began negotiating two treaties known as the Williams Treaties. The first treaty with the Chippewa in 1923 covered lands from Georgian Bay to the Ottawa River. The second, also signed in 1923 but with the Mississaugas, covered the land from Lake Simcoe to the shores of Lake Ontario. With the signing of the Williams Treaties, Indigenous peoples not only renounced their claim to the land, but also their hunting and fishing rights over the properties – a significant departure from what had become customary in the Robinson and Numbered Treaties. Since the late 19th century, Chippewa and Mississauga, in the Simcoe and North Lake Ontario regions, have tried to get the government to recognize the shortcomings of some of the early colonial treaties. For example, large tracts of land in the area around muskoka and the Upper Ottawa River were not included in the Treaties on Upper Canada. R.V. Sinclair was appointed by the federal Minister of Justice in 1916 and began investigating these matters. He confirmed that there were indeed many problems with the allocation of land in treaties and that not all land had been fully surrendered. Over the next two hundred years, the Crown signed treaties that established the respective rights of Indigenous peoples and European newcomers to the use of North American lands traditionally occupied by Indigenous peoples. Historic treaties signed after 1763 gave the Crown large tracts of land occupied by First Nations (transfer of their Aboriginal title to the Crown) in exchange for reserve lands and other benefits. By the mid-1830s, treaties covered most of Upper Canada`s arable land.
These contracts included an initial distribution of goods and money with the promise of small annual payments. It is only gradually that the principle that agreements should include the allocation of reserves has developed. The phrase «We are all contract people» is an effective way to express the legal obligations that all Canadians have to comply with the terms of treaties. And to ensure that they do not violate the treaty, Canadians need to learn about the obligations and responsibilities they have to Indigenous nations and the land. In Canada, the negotiation, signing and ratification of international treaties is controlled by the executive branch of the federal government, while Parliament is responsible for the implementation of these treaties at the federal level. This backgrounder examines Canada`s approach to negotiating, signing, ratifying and implementing international treaties at the federal level, including a description of the international affairs authority, the treaty-making process itself, various compliance mechanisms, and federal-provincial/territorial relations with respect to international treaties. These treaties form the basis of the relationship between 97 Indigenous communities (representing approximately 89,000 Indigenous peoples) and provincial, territorial and federal governments. There is another tradition of contractual relations, also known as the alliance chain. This tradition connects the British Crown to the Mi`kmaq, Passamaquoddy and Wolastoqiyik (Maliseet) peoples, whose ancestral lands include most of the Maritimes as well as parts of the Gaspé Peninsula.
Unlike treaties concluded after the Royal Proclamation, maritime treaties do not focus on the issue of land ownership. Instead, these agreements, whose cornerstones include the Treaty of Boston of 1725-26 and the Treaty of Halifax of 1752, were primarily mutual promises of peace and friendship. The agreements also guarantee the indigenous right to free trade and the right to fish and hunt in their usual way. They also commit to regularly provide food, supplies and ammunition for the Crown. Indigenous peoples have refused to accept the new international boundary created by the Treaty of Paris, which cut off their ancestral territory, or that their lands south of the new border now belong to the United States. Officers of the British Imperial Indian Department, many of whom had native ancestry, wives and mixed children of origin, tended to share this sentiment. At their insistence, the British government refused to cede land north of the Ohio River and south of the Great Lakes to the United States. All that had been transferred was the exclusive right of the British sovereign to purchase land from Indigenous peoples through treaties, in accordance with the principles set out in the Royal Proclamation. Treaties were considered to range from national treaties to international treaties between sovereign powers. Despite the shortcomings in the negotiation, maintenance and renewal of Aboriginal treaties, the process itself shows that Canada has grown and evolved according to constitutional principles, with the recognition of Aboriginal rights being essential.
These founding agreements between peoples are fundamental features of the ongoing drama of Canadian federalism. As Canada becomes home to an increasingly diverse population, the task of interpreting the importance of Aboriginal treaties for new generations of Canadians becomes increasingly difficult. Crown officials and their Indigenous allies spoke of renewing their relationship as a «polishing of the links in the chain of the alliance.» It would be almost unthinkable for indigenous and non-indigenous diplomats trained in the tradition of the Covenant chain to enter into contracts without indicating their main characteristics on wampum belts made of shell beads woven into appropriate symbolic representations. Accepting a wampum belt in formal counseling meant agreeing on the principles embodied in its woven design. The Wampum was used to preserve the memory of the treaty. The use of wampum as an instrument of contractual relations spread throughout eastern North America in the 17th, 18th and early 19th centuries. Many Indigenous peoples, as well as British army officials in North America, were struck by thunder because of this betrayal. To deal with the resulting crisis, the governor of Quebec, Frederick Haldimand, signed treaties with the Mississaugas, north of Lake Ontario, in 1784 to open land to Six Nations who chose to migrate instead of living under the jurisdiction of the United States and New York State (see The Haldimand Proclamation).
Indian affairs were governed more by the federal Indian Act than by Aboriginal treaties. First introduced in 1876 as a consolidation of previous colonial ordinances to eradicate First Nations culture in favor of assimilation into Euro-Canadian society, the Indian Act became the primary law by which the federal government administered the status of Native Americans, First Nations local governments, and the administration of reserve lands and municipal funds. The Act has been amended several times, including in 1951 and 1985, with amendments focusing on the deletion of particularly discriminatory articles. There are two ways to accomplish this task. In some cases, it is quite clear that national legislation must be adopted to implement the terms of an international treaty. If so, the Minister concerned will issue instructions for the preparation of implementing legislation. After Cabinet approval, the bill is introduced in Parliament and goes through the parliamentary legislative process. The treaty itself may, in some cases, be included as an appendix to the bill;24 However, neither the Treaty itself nor its principle or scope can be changed during the legislative process.25 In addition, implementing provisions often contain a provision approving the Treaty. In most cases, this approval is expressed very simply, for example by the expression «the agreement is approved».
26 In addition to (or instead of) autonomous implementing rules, it may be necessary to amend existing legislation. For example, trade treaties are generally implemented through tariff amendments.27 The concept of reserves was advanced in 1850 when Crown Representative William Benjamin Robinson obtained consent from Aboriginal leaders to «cede, grant and transmit to Her Majesty» approximately 50,000 square miles (129,500 km2) north of the Upper Great Lakes. These transactions, known as the Robinson-Huron and Robinson Superior Treaties, provided for the creation of 24 new reserves, each to be held by the Crown for the «use and benefit» of the nations whose names and signs of rulers appeared on the agreements.