Treaties and international agreements: history and framework

Aboriginal Treaties

One of the key points in this chapter is that "Treaties, as we will see, are by their nature agreements made by nations. Where there are groups of Aboriginal people who may not meet the criteria for nationhood, some other instrument must be used." As outlined early in the chapter, the Aboriginals before the arrival of the British did not actually function as a single nation, but in fact had many "treaties" among themselves, effectively defining them as a series of separate political entities. This fact, and their subsequent treatment as a single nation, had a large effect on their history and specifically on the applicability and efficacy of treaties as a solution to Aboriginal problems.

Other traditional and historical problems of treaties are exposed in the ways Europeans and their descendants have treated indigenous people around the world, such as Justice Reed's 1955 comment on the unfair nature of the "sale" of land effected by American's treaties with the Indians. In contrast, the Europeans who settled Canada had much fairer treaties with the natives living there, and the author credits the history of that country largely to the peaceful way in which treaties settled land disputes. This does not mean, however, that Aboriginals have been fairly treated in Canada.

In order to ensure the fair application of former treaties with Aboriginals in Canada, the author and his commission suggest three imperatives that must be followed, and which did not always exist in the spirit of former treaties or their application:

First, we need to achieve justice within the separate treaty relationships by implementing those provisions of the treaties that are set out clearly in legal documents. Second, reconciliation must be achieved between the spirit and intent of the treaties and the rights of Canadians as a whole...The third element is to extend the treaty relationship to all Aboriginal nations in Canada.

The historical problems associated with upholding the treaties centers on the Canadian legal systems confused view of them -- it is not clear whether the treaties amounted to legally binding contracts with the established Canadian government or not. In addition, the definition of the various Aboriginal peoples with whom the treaties were made as nations or not is hugely determinative in the legality of these treaties and the ability of either party to enforce the provisions of them.

Especially important in the interpretation of the historical treaties is their treatment of rights and ownership to land. Aboriginal peoples have put forth many valid claims that the treaties that seem to take away all rights they have to their ancestral lands are indeed not valid treaties. More recent interpretations of the spirit of the treaties have determined that their only legal purpose could have been to ensure fair and equal access to the land for both the Aboriginals and the settlers. This was very likely not the original intent of the treaties, but is a much more equitable -- and arguably more legal -- interpretation and application of them in the modern world.