What Are Treaty Rights?
Some Canadians believe that treaties are long-ago things that are no longer relevant. The Royal Commission on Aboriginal Peoples, however, reported that Aboriginal leaders without exception called for a treaty implementation and renewal process.
Long before the arrival of Europeans, Turtle Island (North America) was home to millions of Indigenous Peoples, who lived in thousands of distinct societies with their own laws, customs and economies. Land was integral to their economic, social and spiritual well-being.
As Sharon Venne, Professor of Native Law program at the University of Saskatchewan and PhD candidate in international Law and Indigenous Issues at the University of Alberta, explains: "Indigenous Nations have their own legal systems and political accords for entering into and concluding Treaties. Treaty-making among Indigenous Peoples has a long history: prior to the arrival of non-Indigenous Peoples to the Americas, Indigenous Nations were making treaties among themselves. An oral tradition, treaty-making was a means to create peace and friendship, to cement alliances between and among Nations, sometimes against other nations.
"When European governments needed to legitimate their settlement of the Americas, they engaged in the diplomatic process of negotiating legal arrangements with Indigenous Nations to make Treaties. It is a simple fact that the Indigenous peoples of the Americas owned and occupied their territories at the time of contact, when Indigenous Peoples entered into Treaties with the British Crown, they signed as independent nations and not as subjects of the British Crown; had the British Crown perceived Indigenous Peoples as subjects, the making of Treaties as between nations would not have been necessary."
The original Treaties, those which predated Confederation, such as the 1760 Peace and Friendship Treaty signed between the Mi'kmaq, Maliseet, and Passamaquoddy and the British Crown, were clearly international agreements between sovereign peoples. This international character of treaties has never been denied by the Canadian court system. The Supreme Court of Canada has ruled that the provision within section 35(1) "did not create aboriginal rights; rather, it accorded constitutional status to those rights which were existing." In other words, Aboriginal rights and treaty rights are not something that can be granted to Aboriginal peoples from Canadians but are based on historical factors.
When we talk of Aboriginal land and treaty rights, these are based on the concept of Nation, that is to say, a people living in a specific territory and having a common history, ancestry, language, culture, and so on. It is a mistake to deny that non-European peoples possess their proper history and to use "race" theories (that originate from Europe) to discredit the legitimacy of Aboriginal peoples' rights.
Aboriginal inherent rights are the base points from which all treaty negotiations take place, and the measure by which compromises are made. These include the right to use the land and the natural resources, to maintain their own languages, cultures, social systems and governments.
Treaty-making is the appropriate starting place for resolving conflicts between Indigenous nations and the successor state in ways that are peaceful and meaningful for both parties, in the spirit and intent of the original Treaty-making.