Prof. J.R. Miller
Canada Research Chair in Native-Newcomer Relations
Department of History, University of Saskatchewan

Treaties between Aboriginal peoples and the Crown are important building blocks of modern Canada. They legitimize the presence of non-Aboriginal newcomers through agreements to share territory. They encourage social cohesion by facilitating relations between Natives and newcomers. And since they gained constitutional protection under the constitution adopted in 1982, treaties become part of the country's foundational documents.

The earliest treaties emerged for economic reasons. The first Europeans to come to northerly North America, the fur-trading companies that enjoyed charter rights from the French or English Crowns, entered into commercial agreements to allow them to pursue the fur trade efficiently. Without the cooperation of indigenous peoples that such agreements secured, it would have proved impossible for French traders in the Company of One Hundred Associates, for example, or British traders of the Hudson's Bay Company (HBC) to establish trading posts and obtain furs.

What Europeans did not understand initially was that the commercial compacts they entered into with the Innu, Dene, Huron, Iroquois, and others were built on pre-contact Aboriginal practices and customs. The trade networks that Europeans established with First Nations were elaborations of pre-existing commercial systems. Moreover, Europeans had to adopt and practise the indigenous protocols of First Nations to establish links with Natives. These protocols consisted of elaborate ceremonies involving welcomes and salutes, speeches, exchanges of gifts, smoking the pipe together, and eating communally. These customs would be repeated at intervals when the parties met after absences to renew the association they had created earlier. These customs were the means that First Nations used to create kinship links with other people, and European traders who engaged in such protocols were entering their social world at the same time they were becoming their commercial partners. The commercial compacts of the fur-trade era, with their elaborate First Nations protocols, were only the first example of the many ways in which indigenous peoples influenced newcomers' behaviour in a world of treaty relationships.

In the late seventeenth century and throughout the eighteenth century a second form of treaty-making gained prominence in the northeastern woodlands. These were treaties of peace and friendship that both France and England increasingly relied upon for diplomatic and military support as the two European countries headed towards a military showdown that would create a struggle for control of North America. From a First Nations perspective there was no distinction between commercial compacts and peace and friendship treaties because in the Aboriginal world commerce and political relations were two sides of the same coin. This was so because First Nations found it impossible to deal with other people commercially if they had not established a kin-like relationship with them first. As an Iroquois diplomat succinctly put it in 1735, "Trade and peace we take to be one thing." For Europeans, though, they were distinct. By the 1700s in eastern North America peace and friendship treaties were becoming more important to France and Britain because of the conflict between them.

Peace and friendship treaties involved complex, sophisticated diplomacy, and were enormously important to the Europeans who negotiated them. France, for example, constructed an elaborate and extensive network of trade partnerships and alliances with First Nations in the east in Acadia, to the north of the St. Lawrence River colony of Canada, in the pays d'en haut or Michigan-Wisconsin region, in the Ohio Valley, and down the Mississippi River system. For their part, the British created an alliance system of their own, known as the Covenant Chain, that focused on the Iroquois Confederacy in what is now New York State, and through the Iroquois with many other First Nations to the south and southwest. These alliance systems were held together with elaborate speech-making, pipe-smoking, feasts, and gifts to the First Nations. A large part of the military 'muscle' that European powers could flex in North America resided in these alliances, which were networks of treaties of peace and friendship.

Such agreements were among the most impressive treaties found in Canadian history. The Great Peace of Montreal of 1701, for example, was a mammoth, intricate, and delicately constructed truce between the alliance system of the French and their First Nations allies on the one hand, and elements of the Iroquois Confederacy on the other. It brought an end to seven decades of on-and-off warfare between the Iroquois and the French and their allies, and affected relations in a vast region that stretched from the Atlantic to the eastern edge of the Prairies, and from the boreal forest of northeastern North America on the north to the southern colonies of the Thirteen Colonies. It is interesting that at the same time the Iroquois normalized relations with the French through the Great Peace they simultaneously reassured their British allies by a treaty separately negotiated with them the same year.

From the 1760s onward the era of treaties of peace and friendship gave way to the period of territorial treaties. The turning point was the end of the Seven Years' War and the Royal Proclamation of 1763, by which Britain sought to create boundaries and institutions of law and government for the colonies it had acquired from France by the war. Britain recognized that France's former First Nations allies would be uneasy at the departure of their French partners, and London knew that the thing that made First Nations most suspicious of British colonies was their tendency to expand agricultural settlement into Indian Country. Therefore, Britain regulated access to First Nations lands by recognizing that First Nations who associated with Britain had some form of territorial rights, and prohibiting anyone but the Crown and its representatives from negotiating with First Nations for their land. The Proclamation declared that only the Crown could negotiate for access to First Nations' lands, and its representatives had to do so at public meetings called for that purpose. Britain was attempting to prevent fraudulent taking of land. The result was to lay down a procedure for making territorial treaties.

The formula for land-related treaty-making was refined in the century between the Proclamation and Confederation in 1867 in the future Ontario. Crown representatives negotiated a series of treaties with the Mississauga between 1784 and 1811 that granted access to lands along the St. Lawrence River and lower Great Lakes in return for one-time payments in goods. Between 1818 and 1862 another set of land treaties secured peaceful access to lands further back from the major waterways, north and northeast of Lakes Huron and Superior, and on Manitoulin Island in return for annual payments, or annuities, to First Nations. As a result of this lengthy experience in Ontario, treaty-making according to the Royal Proclamation's requirements became routine prior to Confederation.

There were exceptions to this pattern of territorial treaty-making. Neither in Atlantic Canada nor southern Quebec, where the older tradition of peace and friendship treaties was established, did newcomers consider it necessary to negotiate territorial treaties. In the vast Hudson's Bay Company lands known as Rupert's Land there also was little need to negotiate land treaties because the Royal Proclamation said that it did not apply to HBC lands. Nonetheless, because of armed conflict between British settlers and local Métis who resented the new settlers' interference with their buffalo hunt in 1816, in 1817 the sponsor of the new settlement, Lord Selkirk, had a treaty covering the region around present-day Winnipeg negotiated. The other area where limited territorial treaty-making occurred prior to 1867 was on Vancouver Island. There the HBC's governor, James Douglas, negotiated fourteen small treaties with local Coast Salish groups for one-time payments to speed settlement. The rest of British North America remained uncovered by land-related treaties.

Since one purpose of creating Confederation was to add the West to the new Dominion of Canada to satisfy Ontario's ambitions, it is not surprising that one of the earliest projects of the new federal government was western treaties. Increasing the pressure to make treaties in the West was the successful Métis resistance to Canadian authority in 1869-70 and Canada's knowledge that the prairies were peopled by thousands of armed and mounted First Nations with warlike reputations. Not surprisingly, then, Canada negotiated seven territorial treaties known as Numbered Treaties between 1871 and 1877 that covered the region from northwestern Ontario to the foothills of the Rockies and from the international boundary to a line roughly halfway up the prairie provinces. In return for access to Cree, Assiniboine, Dakota, Saulteaux, and Blackfoot lands, Canada agreed to pay annuities, create reserves where First Nations might develop agriculture, recognize hunting and fishing rights, and solely in Treaty 6 to provide "a medicine chest" and food aid in the event of epidemic disease or famine.

Western First Nations negotiated these treaties because of a series of concerns. Plains peoples were worried about the decline of the bison, the basis of their economy and society, and thought farming might be an alternative should the bison completely disappear. They also recognized that the arrival of settlement was inevitable, and sought to negotiate the terms on which it would occur. Finally, they took at face value the reassurances of Canadian negotiators that the newcomers had no desire to interfere with their way of life, and that Canada would provide the Queen's "bounty and benevolence." Western First Nations saw the agreements they made as continuations of the pacts they had had with the Hudson's Bay, covenants that did not involve major alterations to their way of life and that brought the newcomers into the First Nations' kinship system. They were to be bitterly disappointed by these later treaties.

The territorial treaty-making initiated on the Plains continued later in the north. Between 1899 and 1921 Canada negotiated Treaties 8 through 11 with Dene and other nations in response to the desires of southern economic interests for access to the resources of the northern boreal forest. Mining and commercial fishing were becoming increasingly important in these regions. Again, as with the first seven numbered treaties, the aftermath of treaty-making was disappointment, because Canada did not honour all its promises, especially the commitments to respect gathering rights.

Following Treaty 11 territorial treaty-making stopped for half a century. The Canadian government was no longer interested in acquiring access to territory because it already had made treaty for such a huge area. However, when a resource-based development boom began in the 1940s and continued for decades, Canada had to resume treaty-making to facilitate access to new areas rich in hydroelectric, mineral, and forest resources. The new treaties that were created from the 1970s on included such important agreements as the James Bay and Northern Quebec Agreement (JBNQA) of 1975, the Nunavut agreement that was implemented in 1999, and the Nisga'a agreement of 1998.
This modern era has two other forms of territorial treaty: comprehensive claims settlements and BC treaties. Comprehensive claims allege that Aboriginal title was never extinguished. Such claims are evaluated and negotiated according to procedures laid down by the federal government. The JBNQA is a comprehensive claim settlement. Others include the Inuvialuit (western Inuit) settlement of 1984, and the Yukon Final Agreement (1992). All comprehensive claims settlements to date have taken place in northern, sparsely settled regions. The other type of treaty is that negotiated under the British Columbia Treaty Commission that was set up in 1992 to deal with the many claims to land there. To date two of approximately fifty sets of negotiations have resulted in agreements.

Canada's treaty-making experience has been lengthy and diverse. The first treaties were commercial compacts that built on pre-contact Aboriginal practice. They were followed by an era of treaties of peace and friendship that in turn gave way to territorial treaties. Canada stopped making land treaties in the 1920s, only to be compelled fifty years later to resume the practice because of a desire to access resources on Aboriginal lands. The last phase of treaty-making featured separately negotiated treaties such as Nunavut and Nisga'a, comprehensive claims settlements, and the beginnings of treaty-making under British Columbia's unique regime. Treaties, an essential element of Canada's history and constitutional framework, have a fascinating history.

© J.R. Miller. Reproduced with the permission of J.R. Miller.