The Grand Council of the Crees

The Rights and Reality of Aboriginal Peoples, March 1992

Speech of Ted Moses Ambassador of the Cree Nation to the Australian Museum on the Future of Austrialia's Dreaming: The Rights and Reality of Aboriginal Peoples

Posted: 1992-03-00

Good afternoon. It is a pleasure to be here. I would like to thank Mr. Des Griffin, the Director of the Australian Museum, and Mr. Aden Ridgeway, the Chairperson of the Steering Committee, for inviting me to discuss my experiences, and the experiences of the Cree people of James Bay, Canada. I would also like to thank Lynda Kelly from the Museum who has been speaking with me during the past two months about the program, and who suggested the topic for this afternoon: Trick or Treat.Trick or Treat sums up the indigenous peoples' experience with treaties. It sure is an accurate description of my experience. In fact do not be surprised if you hear a great deal here that is all too familiar. I have come a long way by distance, but I know that it is not very far really when you consider what has happened, what has been done to our peoples.As an indigenous person from Canada I share more than the ordinary indigenous experience of dispossession and exploitation. We share a particular and peculiarly British colonial history. A history were everything has been done in the most careful and legally correct way; a history where our interests have always been scrupulously protected by a State that has the highest respect for civilization, the protection of individual freedoms, order and good government, and all of the rest. And of course you know what happened. Somehow the indigenous peoples ended up without their land, without their languages, without their religions, without their self-respect, and finally without the means to subsist.I had to obtain a visa to come here. I was a bit insulted. First, I thought: if I want to go and visit some of my indigenous brothers and sisters in their country, why should I have to get a visa? And then it occurred to me that a State made up of the descendents of criminals expelled from England wanted me to get a visa to assure themselves that I would cause no trouble. Isn't that putting the whole thing upside down? We did not invade and forcibly occupy someone else's land. Why check me out? The aboriginal peoples of Australia should have asked all of you for visas before they allowed you to enter this territory. I consider it a terrible mistake, because generally we allowed settlers into our countries and let you get away with murder--real murder, and we still treated you with respect. What a mistake.When I left Canada, I left a country that was in the middle of a constitutional turmoil. The two powerful groups of colonial occupiers were fighting among themselves. The French people who had been abandoned by the old French colonial regime two hundred years ago and who had lost the battle to the British colonials were trying to correct history. France and Great Britain are long gone, of course, but that doesn't matter at all. Quebec was telling the rest of Canada that they would break up the whole country if they did not get what they wanted: control over all of Quebec and everything in it. Everything in it, I should mention, includes all of the indigenous peoples, my people, the Crees, the other Indians, Mohawks, Algonquins, Naskapi, and many others, and the Inuit. Everything in it also includes the water, the trees, the animals, the minerals, the land, the rivers, you name it.Funny thing is, the rest of Canada (this is officially called the ROC) was willing to give Quebec all of this, they explained, to "keep the country together". Meanwhile the leader of the Quebec separatists was saying that even if they got everything they asked for he would still make Quebec a separate State and take all of the indigenous people with him whether we wanted to go or not.That is what was going on when I left Canada. You know what I think? I think it is a bunch of thieves fighting over the proceeds from a recent robbery. But there is great care taken. It is all done legally. That is the key. Steal if you will, but make sure that it is all without fault, not really theft at all. Call it something else, perhaps discovery, exploration, protection. Put it all in some kind of civilized European form, give it the status of law.I said before I left Canada that we would not go for it again. We will not let it happen again. Imagine the audacity, designating a new independent State, recognizing the sovereignty of thieves and still denying to the original peoples, the original inhabitants their right to self-determination.I am so glad you asked me to discuss the internationally protected rights of indigenous peoples, because it gives me the opportunity to explain that Canada at this moment is trying to figure out how to avoid the consequences of international law, how to cheat the indigenous peoples again. Quebec wants the land my people have lived on for 5000 years to make a new State. That is a flagrant violation of international law, and it is a violation of a treaty made with our people in 1975. But I am getting ahead of myself, I promised to discuss treaties.I will tell you why Indians consider treaties so important. The treaties are proof and recognition of our sovereignty. No matter what may be claimed about "discovery", or terra nullius, or "conquest", the very fact is that treaties are agreements between nations. States make all kinds of agreements and contracts with various people and institutions, but a treaty is a specific kind of agreement between sovereigns.Why a treaty? Because a treaty may not be broken. Treaties are for ever--pacta sunt servanda. A treaty must be respected; one party may not unilaterally alter or change a treaty. A treaty represents permanence and therefore security. A treaty is a pledge between sovereign peoples.The indigenous peoples did not conceive of the concept of treaties. It was the European States that proposed and treated with the indigenous peoples to create these instruments. The choice of designation, the term of preference was European.Now we are left to consider what this choice signified. Was it the correct and obvious designation for an agreement between sovereign peoples? Or was it some kind of trick or deceit? Was it a pretense, an effort to fool the indigenous peoples, using a serious term of reference to inflate the importance and consequence of a one-sided agreement, a swindle? Remember that the concept of treaty is still in use. Canada is still making treaties with indigenous peoples.Consider the situation when the first "Canadian" treaties were made. Small numbers of colonists, or explorers, or settlers were coming to a strange and distant land that was already occupied with people who had been living there for thousands of years. The indigenous peoples were important for at least two reasons: they were a potential threat, and they were an essential source of assistance for people who were unacquainted with the land and climate, and were thousands of miles removed from support of any kind. It was under these circumstances that the treaties were conceived.The first treaties made with indigenous peoples in Canada were treaties of "friendship and cooperation". This construction is consistent with the analysis of the circumstances we have just made. Friendship and cooperation indeed. That is just what the invaders most needed. The original treaties did not contain even a hint of the concept of surrender that came to characterize the latter treaties. They basically said, "we won't hurt you if you don't hurt us", and they said, "we will be grateful for any assistance". Indigenous lands were not given up; the concept was sharing and coexistence.There did not seem to be any problem on the part of the Europeans recognizing the existence of representatives with whom to treat. That is, there is the clear recognition by the Europeans that there was some form of governmental structure and leadership empowered to make agreements. I am taking pains to point this out, because it contradicts the notion that indigenous peoples had no government of their own before the Europeans came. This is a critical issue, for we all know that a European system of law was eventually imposed, and it is a fundamental assumption of this imposition of a foreign system of law that there was no prior system in place before the Europeans came and brought enlightenment.To return to the question of designation, it would appear under these circumstances that the use of the term "treaty" was appropriate, accurate, and honestly intended, at least at the time of the early treaties.It should be noted that the Government of Canada until only a few months ago took the position that it was not bound to respect the early so called "preconfederation" treaties. This begins to raise the question of treaty implementation, a question which is inseparable from the question we are entertaining about the intent of the treaties themselves. Were the treaties a deceit?Canada put forward several reasons for ignoring the preconfederation treaties. First it argued that these treaties were entered into by powers other than the present Canadian State, and that they had not been ratified by Canada. Neither of these arguments are supportable in international law; but that did not pose a problem, because Canada also argues that international law does not apply to treaties made with aboriginal peoples.Now things are getting interesting, you might think. The question we have to ask: was the intention when these preconfederation treaties were made, to later deny their validity and to claim later that the rules applicable to all treaties were not applicable to them? That is, were they deceitfully made, or was the deceit a later thought?There is another reason why the Government of Canada has attempted to abrogate the early treaties: they go too far, way too far in terms of current government policy in recognizing the sovereignty of the indigenous peoples, and they go to far, indeed, in recognizing the lands and territories of the indigenous peoples. In other words, they stand in fundamental contradiction to the current law of the land, a law which denies the right of self-determination and sovereignty of the indigenous peoples of Canada.If you are a people who constantly assert the primacy of the "rule of law", then these early treaties pose a problem. Canada solved this problem through simple abrogation and denial. Now that the courts have started to consider the validity of these treaties, the contradictions have become difficult to hide.This raises another problem of interpretation: most of the treaties were made a long time ago. As might be expected, the language is old-fashioned and the subject matter is outdated. It is easy to look upon these treaties as outmoded and dated agreements that are of purely historical interest, but no longer relevant or applicable in law. There is also an inconsistency here, because in the European concept of law, an old law is a law with standing and the validity of long usage. So in the case of the treaties with indigenous peoples, the interpretation varies with current policy directives rather than the intent of the treaty itself.When Canada wanted to escape the provision of compulsory medical services to treaty Indians in Western Canada, government officials noted that the treaty provision was for a "medicine cabinet". We will give you a medicine cabinet, they said, there was never an obligation to provide medical services.The tables are turned, however, when the surrender provisions in these same treaties are invoked by governments. These surrenders, they argue, are absolute, and are in no way conditional upon the implementation of the other provisions of the treaties. Treaty payments, which might have been set in the mid 1800s, are pitifully small by current standards, but governments will not discuss today's values for these sums of money.I think we agree that the early treaties were not instruments of deceit. As circumstances evolved, however, and the newcomers gained the advantage over the indigenous peoples, this situation changed. Clearly as soon as supremacy was established by the Europeans, the character of the treaties changed to match the changed circumstances. The agreements were still called treaties; but the agreements themselves were simply a means to legalize is not legitimize the dispossession of the indigenous peoples.These later treaties inevitably contain surrenders. They are one-sided agreements, the Indians giving up land and often their fundamental rights in exchange for a small payment and the so-called protection of the Crown. The rights that are retained, rights to fish, hunt, and trap, are often illusory and subject to conditions which are not immediately apparent. Neither do the treaty documents, themselves, contain the whole story, because the government negotiators provided assurances and interpretations which are not part of the treaties themselves. The indigenous peoples agreed to sign the treaties in consideration of the circumstances and the whole complex of commitments and explanations provided by the government. Nothing was ever done to protect or formalize these promises, which were as solemn and as binding for us as anything which was written down. The governments simply did not respect their word--in the most literal sense. As we shall see, they have little more respect for their written word.It is my contention that these later treaties are indeed instruments of deceit. They are exercises in legal slight of hand. Experienced government negotiators facing illiterate poverty stricken Indians and asking them to sign on the dotted line; a small hand-out, promises, and they go on to the next group, obtaining a continent for nothing. Here there was talk of Indian nations and the signing of treaties which were permanently binding upon the parties--"as long as the sun shall rise and the rivers flow".The indigenous peoples became in principle beneficiaries of the British Crown, but in practise they became wards of the State, and in the process they went from the ownership and stewardship of the land to become the poorest of the poor. The State used the trust relationship to facilitate the alienation of indigenous land, and to provide only the most meagre and rudimentary provisions. Over a period of one hundred years even the land set aside for Indian reserves was given away or sold by the Federal government. Indians today are the most disadvantaged group in all of Canada, they have the lowest life expectancy, the highest infant mortality, the poorest education, the most deficient housing, the lowest incomes, the highest suicide rate, and they still continue to suffer from tuberculosis, diphtheria, and other diseases which were eliminated in the general population over fifty years ago.When you consider that we are living in our own country, that we are the original owners of the land and all of its resources, and that in Canada we are the only peoples under the direct protection of the Parliament, you have to wonder if the protection we were provided was really intended to benefit us. In the same way, one is forced to ask what purpose the treaties have served.This becomes particularly apparent when the treaties contain, perhaps inadvertently, provisions which the indigenous peoples attempt to invoke. Canada's treaties with the indigenous peoples are perhaps most famous for the fact of their non-implementation. They are the "broken treaties"; for how do you force a government to comply with its own treaty?The Canadian courts have decided that treaties with Indians are not treaties in the sense that everyone understands in the rest of the world. The Supreme Court has decided that the Indian treaties are treaties suis generis. No one knows what this means. One thing I do understand. It means that the treaties need not be respected, that they are non-binding, they are unenforceable. And if they were enforceable, who would enforce them?So in Canada you have an ultimate kind of legal deceit. Indigenous peoples who signed treaties hundreds of years ago now discover that the treaties are not really treaties. The word "treaty" was apparently used in some special sense, as though the indigenous peoples were only playing at being nations, much as adults will sometimes intentionally misuse a word to entice a child to do the desired thing.This deceit is all the more deplorable when we consider the significance and respect accorded to the treaties by the indigenous peoples, who consider themselves totally bound by the promises they made to the Crown. Even today, when the deception perpetrated upon them is somewhat understood, when the concept of "signed under duress" is obvious, the treaties are still venerated by most Canadian Indians. This may seem strange, but you have to understand our people. The treaties were signed only after pipe and drum ceremonies which exclude in the most absolute way any possibility of falsehood or mistrust. There is no way for us to go back. Unfortunately, the governments saw our ceremonies as only so much hocus pocus; Canada breaks treaties with impunity. The indigenous peoples salvage only one thing: the recognition of our sovereignty, but that is enough.My own personal experience in the trick or treat business should be of interest. Canada stopped making treaties around the turn of the century. During a long period there were a few "adherences" to existing treaties, but no new ones. Then in the early 1970s, the Province of Quebec decided to construct what was then the worlds largest hydro-electric project right in the middle of our territory. Quebec did not say anything to us. We had only been living there for 5000 years. Quebec started to build the project; no environmental impact assessments, no social impact assessments, no notice to residents, no attempt to consult us, and certainly no effort to obtain our consent.We heard about this project on the radio. We organized to stop the flooding of our lands, and the destruction of our means of subsistence and way of life. When we asked to speak to the government, Quebec refused to negotiate with us. Instead they told us we were without title to the land, and that we were squatters. (These are the same people who now want a new independent State, and are assuring us that we will be well treated in an independent Quebec, but have no right to proclaim a State of our own.)Eventually we went to court to try to stop what was hailed by the Premier of Quebec as the "project of the century". After nine months in court, during which construction and destruction continued unchecked, we managed to stop the project for four days. Canada, our parliamentary trustee maintained what they called "alert neutrality", that is, they did nothing to protect our land, our culture, our way of life.Quebec finally did agree to negotiate an agreement. I was the principal negotiator. I had not completed my education, but I was called upon to translate in court and take responsibility for the negotiation of Canada's first modern treaty. So I know a little bit what it must have been like in the old days for those people. We had a lawyer. That balanced things a little. But our land was being destroyed. We negotiated while the place was being torn up. This wasn't duress, we are now told--we had a choice, although I don't know what the choice really was.The project went ahead and flooded our territory. It turns out it also poisoned the fish, killed entire river systems, and deforested enormous tracts of land, but we continued to negotiate. We negotiated to obtain things which other people, non-indigenous people, in Canada already had. Things like clean water, school boards, a health board, environmental protection (only in regard to future projects), local governmental control, municipal services, and other such things. We negotiated in 1974 and during 1975, and finally in November 1975 we had a signing ceremony.One would imagine, this being a modern treaty, that none of the provisions could really be ignored. Well I can tell you that ever since that treaty was signed I have spent just about all of my time trying to have it implemented; and the governments which at first simply stalled and procrastinated, have gone to greater and greater lengths to repudiate this modern treaty.Of course Quebec has what it wants. The massive environmentally damaging James Bay Project has been built. In 1980, five years after the treaty was signed, an epidemic swept through the Cree communities killing eight children in one summer. The doctors said the cause was the lack of clean drinking water and sewage systems, all promised in the treaty, but not delivered. We were told the epidemic was a Cree ploy to pump the governments for money. We were told that the Crees were rich. We were told we had too much already. The governments blamed the Crees and the treaty for the lack of funds for other aboriginal peoples. Canada issued press released showing the accumulated amount of funding attributed to us. They included unemployment insurance payments, costs of running the clinics, school board expenses, costs for gravel airstrips. We were dammed and demoralized for our very existence. But still the treaty was not implemented.Now Quebec wants to build another massive hydro-electric project on Cree land. But this time we are armed with the treaty. And even this treaty, slanted to favour the governments, slanted to minimize the benefits for us, even this treaty is too much now that Quebec wants to be free to do anything at all.So listen to this, because this is almost unbelievable: Quebec went to court and told the court that the treaty was only a contract. The Canadian Constitution guarantees that land claims agreement are treaties and aboriginal treaties are protected as constitutional law. Quebec told the judge that it was not bound by our treaty. Keep listening. The Government of Canada, the fiduciary for Canada's aboriginal peoples, told the court that it agreed with Quebec. The treaty was non-binding--both governments argued this. This for a treaty signed in 1975.I don't want to spoil your lunch. But is this not deceit? The unlimited legal resources of two levels of government directed against the resources of the Cree people of James Bay. But the judge told Quebec that this was deceit. The judge said that this was the use of a treaty to intentionally deceive the Cree people, and he said the treaty was law.The day I left Canada a new ploy was in the making. Quebec had convinced Canada to revise the powers it had under the constitution to include energy and regional development. So now, if Quebec has its way there will be a new constitution which gives Quebec powers that will supersede the provisions of our treaty. What about the principle of pacta sunt servanda? None of that will matter. Constitutional amendments to satisfy one of the dominant colonial interests will forever alter all of the treaties. And Quebec will build another hydro-electric project which violates Cree rights.Of recent years I have become more and more interested in international law and the United Nations. I will tell you why. I think indigenous peoples have exhausted the remedies available in their own States to assure respect for their basic human rights and fundamental freedoms. There is simply too much conflict between the apparent self-interests of States and the rights of indigenous peoples.History contains absolutely no assurance that municipal law provides the necessary protections for indigenous peoples. For many years we relied upon the treaties to provide the necessary remedies. But it is all too clear that States are unwilling to accord the rights of all peoples to indigenous peoples, and so we have the deceit of aboriginal treaties suis generis. Canada has told the United Nations that indigenous peoples are not really "peoples" within the meaning of international law. This position is supported by Australia, Norway, New Zealand, the United States, India, China, Brazil, and all of the other States that fear the recognition of the rights of indigenous peoples.How is this position justified? How can the indigenous peoples be denied the rights of all other peoples set out in the human rights instruments of the United Nations. The countries I have just named have lobbied openly at the United Nations to discriminate against the indigenous peoples and deny our identity as peoples under international law. They have already succeeded in doing this at the International Labour Office, where the use of the word indigenous peoples was qualified by a special note which attempted to deny recognition of indigenous peoples within the framework of international instruments such as the two International Covenants.In spite of this, I still think that the international community offers the best remedies; for the standards of international law are less encumbered than the national self-interests that motivate governments to restrict the recognition of indigenous rights.National treaties with indigenous peoples may still offer some hope. But something will have to be done to level the playing field. Indigenous peoples are simply at too much of a disadvantage, both during negotiations, and during implementation.About a year ago I was asked to attend a conference to discuss the ratification of a recently negotiated indigenous treaty in Northern Canada. The treaty was so one-sided and unfair I advised against ratification. I said: you can do better. It turns out my trip was paid for by the Government of Canada, but they didn't know I had been invited. Finally, a official of the Department of Indian Affairs saw me. He said: "What is he doing here?" My host answered: "he came to tell us about the Crees' experience with the James Bay Treaty." "Oh my God," the official said, "it was a mistake to invite him, now it will never be signed."That treaty, the Dene treaty, was not signed, but I don't think it was my fault. People simply realized it was unfair. I told the Dene people: Don't trust them. Ask them to post a performance bond. They will never pay what they owe, and you haven't any way to force Parliament to appropriate the funds. Find a way to keep them honest. Words are not enough.I know that there has been some thought of negotiating a national treaty for Australia. I am not going to come all of this way to impose my opinion on this idea. But I do have a few thoughts. Treaties are between sovereign peoples. The aboriginal peoples of Australia are sovereign. They have always been sovereign, and the failure of later immigrants to recognize this fact is nothing but ignorance bound up with the greed of self-interest. But the international community will eventually grant this recognition whether the local people do or not.A treaty must not be based on false history, and must not be the means to perpetuate the destruction and subjugation of indigenous peoples. Some day people will discover that the indigenous peoples, if treated fairly, are not to be feared. Racism, discrimination, and the domination of one group by another do not bring strength or good spirit to a country.The aboriginal peoples preserved and cared for this land for untold thousands of years, and you now have what they protected. They lived here without changing this place, without using anything up. You have everything they had, since time immemorial. Be as wise as they have been, and leave something for your children.As a Cree I can point to one absolutely fantastic accomplishment. I have lived on the land of my parents. It has fed me, sheltered me, and clothed me; but I have taken nothing out of it. It is all there just as it was on the first day of all creation. Pity more people can not say that.

Thank you.