Idle No More: History Catching Up

First Nations honoured treaties, Canadian governments didn’t
March 1, 2013

 The immediate impact of the "Idle No More" protests has been, if nothing else, a rare, sustained focus on First Nations and their role in and relationship with Canada.

The ensuing dialogue, however, has not on the whole been an ennobling one. Too much of the commentary, whether editorial or popular, suggests deep ignorance of our history, and a clinging to outmoded ideas of what Canada was and is today. It springs from a romanticized longing for a history that never was: Canada as a nation of only two – French and English – "Founding Peoples."

Our history, of course, does not begin with Confederation in 1867, nor even with the arrival of European explorers in the 16th century. It extends back several thousand years, during which the land was inhabited by several distinct nations, with laws and governance structures of their own. As our own Supreme Court has succinctly stated, "Canada's Aboriginal people were here when Europeans came, and were never conquered."

But even were we to myopically limit our historical gaze to more recent times, we are then forced to recall that the Fathers of Confederation immediately understood the need to implement a distinctly Canadian approach to the prior and continued occupation by Aboriginal people of the vast land those founders sought to settle, develop, and unite by transcontinental railway.

That approach, steeped in a long-standing pragmatic British policy of "fair-dealing" with the "aborigines" within its empire's colonies, deliberately diverged from the aggressive approach of our American neighbours, which had resulted in expensive and bloody Indian wars. The original policy of our forebears was not one of conquest, but of compromise, solemnly captured in treaties between the Crown and First Nations.

As John Ralston Saul and former Treaty Commissioner David Arnot have noted, the result is that we are all "treaty people." And this rightly applies to immigrants as well. It is no less reasonable to ask new Canadians to adopt and be bound by our history than it is to expect that they learn to speak and write at least one of our official languages.

Treaties have much to teach us about who and where we are today.

For instance, in Northwestern Ontario and eastern Manitoba (Treaty 3 territory), First Nations were reluctant to enter into treaty. Presciently, they saw little benefit to them in agreeing to share their land and allow it to be opened to settlement and development by others. Canada, needing access to these lands for the railway, persisted. This resulted in hard bargaining, in which the First Nations quite legitimately insisted, among other things, on certain protections for the means of maintaining their livelihood. They would not have needed these safeguards at all if they had refused to enter into treaty and simply maintained their prior occupation and use of the land. And so they also secured for themselves and for their descendants other promises: annual payments of monies, goods, and services such as education.

In Northern Alberta (Treaty 8 territory), a different scenario unfolded in the late 1800s. With buffalo herds depleted and famine claiming many of their members, First Nations beseeched the Crown to enter into treaty. Canada refused, deciding it did not need the land or access to it, and not wanting to assume financial or relief obligations for its Aboriginal inhabitants. This view, however, changed abruptly in 1888, when Robert Bell, director of the Geological Survey of Canada, reported to a Senate Committee that the Athabasca and Mackenzie valleys hold "the most extensive petroleum field in America, if not the world." The resulting treaty likewise contained many promises and protections, in exchange for access to the territory that is now home to Canada's tar sands.

Once Canada secured what it had wanted – access to land and its abundance, peaceably and therefore economically attained – it quickly began to renege on the promises it had delivered to achieve those ends. The First Nation treaty partners were soon regarded as a drain on the economy being built on and from the very land those First Nations had agreed to share. Lands promised were not delivered; resources were not shared. Annual treaty payments have never been indexed for inflation.

The Indian Act was imposed, along with a disastrous policy of assimilation, culminating in the residential schools calamity. These failed policies and broken promises guaranteed the ongoing and worsening political, economic and social dysfunction of First Nation communities. As Chief Bear of the Whitecap Dakota First Nation has suggested, one should try to imagine how Canada would have fared if its entire economy had been forced to operate under the constraints of the Indian Act.

By 1923 – the balance of power having shifted in its favour on the strength of the land settled and developed through previous treaties – Canada simply stopped entering into treaties altogether. This bequeathed a legacy of legal limbo for future generations, who were left to grapple with the resulting uncertainty over ownership and rights in relation to large portions of our country.

The simple historical truth is that First Nations more than kept their end of the historical bargains on which Canada was founded, but have been systematically excluded from sharing in the wealth produced from the land they agreed to share with us, while enduring the effects of harmful policies by successive Canadian governments.

What is the meaning of Idle No More? Perhaps it is that history, as it tends to do, has caught up with us.

(Max Faille is an Ottawa lawyer and National Leader for Aboriginal Law at Gowlings LLP.)