Treaty rights

Treaties are used to establish the relationship between Indigenous peoples and the Canadian Government and define the rights Indigenous peoples are entitled to. Treaty rights within Canada are set out in either a historic or modern treaty agreement. These rights define specific rights, benefits and obligations which are recognized and affirmed by Section 35 of the Constitution Act, 1982.^[20]

These agreements were made between the Crown and Indigenous peoples where Indigenous nations agreed to share some of their ancestral lands in return for various payments and promises. These promises have been broken over the years and have subjected Indigenous peoples to poor living conditions in attempts of erasure.^{[citation needed]}

Treaties are understood differently between the Canadian and Indigenous nations. For Indigenous peoples, the character of treaties is found in what was said at the time of negotiations. Contrary to this, the principles for treaty makings were to establish the constitutional foundations of Canada and what was said was not reflected in the treaties signed. Verbal commitments made to the Indigenous leaders not included in the written treaties became a common source of discontent and remains an ongoing issue of dispute and discussion. Following complaints from affected communities, many of these promises are not honored.^{[citation needed]}

Canada only recognizes the 70 historic treaties signed between 1701 and 1923 and 25 modern treaties (also called comprehensive land claim agreements) since 1975. Together, these treaties have provided^[20] inconsistent protection to traditional ways of life, vague participation in land and resource management decisions, and Indigenous ownership to about 600,000 km² out of the 9.985 million km² of land that makes up Canada.^[21]

Historic treaties promised Indigenous peoples reserve land, the government paid schools and teachers on reserves, hunting and fishing rights on unoccupied Crown land, and one-time benefits (such as farm equipment and animals, ammunition, and clothing).^[20]

The most notable historic treaties include the Numbered Treaties 1-11. These were used as political tools to secure alliances and transfer land ownership. Differing interpretations of the treaties have led to disputes between the federal government and First Nation groups. The concept of territory and ownership differ amongst European and Indigenous world views, where Indigenous peoples interpreted the treaties as promises to share, rather than own, the land and natural resources with the colonizers.^[22] The long-lasting legal and socioeconomic impacts of the Numbered Treaties on First Nation peoples, such as the creation of reserves, schools and other instruments of assimilation, have affected Indigenous cultures, customs and traditional ways of life.^[23]

• Presentation copies of several numbered treaties
• 
  Treaty 4
• 
  Treaty 6
• 
  Treaty 7
• 
  Treaty 8

These treaty presentation copies are held in the Bruce Peel Special Collections at University of Alberta Library. Each is printed on parchment with text in black and red and a blue and red border.

Contemporary treaties began in 1973 after the Supreme Court of Canada's decision which recognized Aboriginal rights for the first time. Aboriginal rights are the collective rights entitled to Indigenous peoples as the first inhabitants of Canada. These treaties addressed Indigenous rights to ownership of lands, wildlife harvesting rights, financial settlements, participation in land use and management in specific areas, and self-government.^[20]

Section 35 recognizes and affirms the treaty rights and Aboriginal rights of the Indigenous peoples in Canada.^[20] The Constitution does not define Indigenous rights under Section 35, but they can include Aboriginal titles, rights to occupy and use land resources, self-government rights, and cultural and social rights. Section 35 varies depending on the vast cultures, customs, practices, and traditions of each group.^[22]

Some inherent Indigenous rights are not recognized by the Crown, as the Constitution does not define specifics. The Canadian government stipulated that these rights were to be defined in the courts on a case-by-case basis. There are several significant cases that recognized Indigenous rights in the Canadian court, such as R v. Sparrow, R. v. Van der Peet, and R. v. Powley.

R v Sparrow (1990) set out criteria ("the Sparrow test") to determine whether government infringement on Aboriginal rights was justifiable.^[24]

R v Van der Peet (1996) was pivotal in further defining Aboriginal rights in Section 35. It established criteria that are used to determine whether an Aboriginal right is protected as an “existing” Aboriginal right under the Canadian Constitution.^[25]

R v Powley (2003) was the first major Aboriginal rights case concerning Métis peoples. It created “the Powley Test", which addressed the criteria that defines Métis rights, and who is legally entitled to those rights.^[26]

This list is incomplete; you can help by adding missing items. (January 2018)

Many Native nations have reserved rights to hunt and fish in their accustomed places, which are often lands that were given up at the treaty signing, or "ceded land". This leads to conflict with sports and commercial hunters and fishers, who are competing for the same limited resource in the same place. Things like dams and logging have huge effects on fish and wildlife populations. In Canadian law, the government has a court-mandated "duty to consult" indigenous peoples regarding the management process of these lands and rivers. In the United States, no such mandate exists.^{[citation needed]}

Beginning in the 1980s and extending into the early 1990s, Northern Wisconsin was rife in protests against Ojibwe spearfishing.^[27][28] The Voigt decision in 1983^[28] had reaffirmed that the treaties made in 1837 and 1842 still stood.^[27] These treaties gave the Ojibwe the rights to hunt, fish, and gather off-reservation, which was not subject to state regulation.^{[28] [citation needed]}This heralded a backlash of non-Natives, who believed the Ojibwe had been granted special rights. Spearheaded by groups like Stop Treaty Abuse (STA),^[27] often violent and racially discriminatory protests against spearfishing covered boat landings across northern Wisconsin.^{[28][citation needed]} This led to the case Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin.^[27] This case culminated with Judge Barbara Crabb upholding the Voigt decision and many members, donors, and politicians distancing themselves from the STA, which many believed was racist.^[27]

The right to hunt North Pacific gray whales has been a contentious issue for the Makah people in Washington state.^[29][30][31] The Makah people ceded much of their traditional lands in the Treaty of Neah Bay in 1855 but retained the right to whale.^[30] The tribe voluntarily gave up this practice in 1915 because of decimated gray whale populations, but once the species was taken off the Federal Endangered Species List in 1993, the tribe sought to continue whaling. In 1999, they killed one whale but faced immediate backlash from environmental groups and animal rights groups.^[30][31] The International Whaling Commission (IWC) believed that the Makah tribe's quota of harvesting up to five whales a year would not hurt the recovering population.^[31] Because of a number of new studies garnishing evidence for and against this practice, the issue has been tied up in court since 1999, with the tribe being unable to exercise the right given to them in the Treaty of Neah Bay.^[29]

Throughout the 19th century, the United States made several treaties with the then Kingdom of Hawaii, the last being in 1887.^[32] These treaties recognized the Kingdom of Hawaii as being sovereign and independent.^[32] In 1893, John L. Stevens, US minister assigned to the Kingdom of Hawaii, led a group of non-indigenous people to overthrow Queen Lili‘uokalani, which was backed by the United States naval forces.^[32] They established a Provisional government, which then declared itself the Republic of Hawaii.^[32] In 1899, the US annexed Hawaii. Many Hawaiian sovereignty activists feel that because of the treaties mentioned above, Hawaii should today be its own Nation instead of part of the United States.^[32]

The Lakota people of Standing Rock reservation in North and South Dakota believe that the Dakota Access Pipeline (DAPL), which runs near their main source of water, could contaminate that source of water should it leak. They also cite the Fort Laramie Treaties of 1851 and 1868, which promised the land that DAPL runs through to the Lakota's land.^[33] Lands were seized in 1877^[34] and 1887 with the Dawes Allotment Act that broke up reservations.^[35] Some ^[who?] call for these treaties to be reinstated and enforced today, which would put the course of the DAPL straight through Lakota lands.^{[citation needed]}

• Aboriginal Justice Inquiry of Manitoba (1991). Report of the Aboriginal Justice Inquiry of Manitoba (Report). Aboriginal Justice Implementation Commission. Retrieved 4 February 2014.