The Grand Council of the Crees

CREATING CANADA: FROM THE ROYAL PROCLAMATION OF 1763 TO MODERN TREATIES

Canadian Museum of Civilization, October 7, 2013

Posted: 2013-10-07

The Land Claims Agreements Coalition has brought us together to celebrate the 250th anniversary of the Royal Proclamation. It is a momentous occasion, indeed. Anniversaries allow us to reflect on what has come before and what we have achieved. They also give us the opportunity to determine what work remains to be done, and to commit to doing it.

This particular anniversary gives us the opportunity to reflect on the relationship between Canada and Aboriginal peoples. The Royal Proclamation gives us a unique insight into that relationship as it stood 250 years ago. At that time, the Crown recognized the Aboriginal peoples in North America as nations with a special relationship to particular lands. The Proclamation also affirmed treaty-making as a key element of the Crown’s policy towards Aboriginal peoples.

In 1975, Canada signed the first so-called “modern treaty”, with my people, Eeyouch, the Crees of Eeyou Istchee. This treaty, the James Bay and Northern Quebec Agreement, came after a long dry spell in treaty-making, during which the Crown denied that Aboriginal peoples had any rights at all.

Since 1975, 24 modern treaties have been negotiated and signed in Canada. Representatives from all of the nations that signed these treaties are here for this celebration today.

The experiences of modern treaty signatories give us insight into the relationship between Canada and Aboriginal peoples as it stands today.

There is a recurring theme that runs through our experiences. They are marked by the Crown’s failure to implement modern treaties in a way that recognizes and respects the spirit and intent of the agreement. The Crown has persistently refused to see modern treaties for what they are meant to be: Treaties are not about extinguishing Aboriginal rights. They are about committing to live together, with these rights, in a mutually respectful way. This was also the original intention of the Royal Proclamation.

For over 250 years, we have fought for recognition of our rights, and we have had some important successes. We must be proud of this success! But on this anniversary, we must also consider the work that remains to be done.

Despite the conclusion of modern treaties, our people continue to be underrepresented in the education system and overrepresented in the justice system. The conditions in many of our communities parallel those of the Third World. Gross disparities continue to exist between Aboriginal peoples and other Canadians.

For over 250 years, we have fought for our rights. We have not stopped fighting. And we must not stop now.

The Royal Proclamation is an important document for Aboriginal peoples in Canada. It has even been called our “Bill of Rights”. Others today have spoken in depth about the Proclamation, but I think a few things deserve repeating.

The Royal Proclamation came about as a result of growing conflict between Aboriginal peoples and settlers. The Crown recognized the special relationship Aboriginal peoples had with their traditional lands. It issued the Proclamation to designate certain lands as the territory of Aboriginal peoples. The Royal Proclamation forbid settlers from intruding on that land or attempting to purchase it.

But the language of the Proclamation is confused. In one breath, it reassured the Aboriginal peoples that their political jurisdiction and territory would be respected. In another breath, it referred to British “dominion” and “sovereignty” over that territory. It also established a system through which it was said that the rights of Aboriginal peoples to their lands could be extinguished.

A year after the Proclamation was issued, over 2000 chiefs representing 24 Aboriginal peoples met with the British at Niagara. The purpose of this meeting was to negotiate and formalize the principles on which the relationship between the Crown and Aboriginal peoples would be based. At Niagara, the British representative read the Royal Proclamation out loud. The Treaty of Niagara was signed, and a two-row wampum belt was exchanged.

This special wampum belt symbolized the relationship between Canada and Aboriginal peoples. It depicted two vessels travelling together down the same river. One, a canoe, represented the Aboriginal peoples, and the other, a ship, represented the British. Each traveled side-by-side, in their own boat. Neither would steer the other’s vessel. This two-row wampum belt symbolized an agreement of peace and friendship between two nations. At Niagara, the Aboriginal peoples in Canada approved the terms of the Royal Proclamation, which included this guarantee of nation-to-nation respect.

250 years ago, Aboriginal peoples considered the Royal Proclamation to be an agreement of peace and friendship, and a recognition of self-government. At Niagara, Aboriginal peoples were not passive subjects of the Crown, but rather active participants in the formulation and ratification of the Proclamation.

The Royal Proclamation did not create rights for Aboriginal peoples. It recognized our pre-existing rights. Let me say this again: it recognized our pre-existing rights. These rights arise from our prior occupation of the lands that have become Canada. These rights are part of our fundamental human rights, as peoples. They cannot be extinguished.

But the Royal Proclamation has not been interpreted this way. Instead, it has been said that the Proclamation granted rights at the pleasure of the Crown. It has been said that these rights could be unilaterally withdrawn at any time. And they have been.

With the Royal Proclamation, there began a long history of the misinterpretation and non-implementation of Aboriginal treaties. The Crown failed to respect the spirit and intent of the agreement. The Royal Proclamation could have set the standard for honourable dealing with Aboriginal peoples. Instead, in the years that followed, our rights were denied and forgotten. But we did not stop fighting for them. And we must not stop now.

The failure by the Crown to respect the spirit of its agreements with Aboriginal peoples has, unfortunately, also plagued the implementation of modern treaties. My people, the James Bay Cree Nation, have experienced this firsthand with the James Bay and Northern Quebec Agreement.

The JBNQA was Canada’s first modern treaty, signed in 1975. It and its companion implementing legislation led to the creation of the Cree regional government authorities, including the Cree Regional Authority, the Cree School Board, and the Cree Board of Health. The Agreement also formally recognized Cree local governments, outside of the confines of the Indian Act.

In some ways, this Agreement was a success. We Crees refused to stop fighting for recognition of our rights. The JBNQA was a result of that fight.

But it must be repeated, whenever our story is told, that my people did not freely choose to sit down at the negotiating table. Until the early 1970s, we had no reason to negotiate. We lived on our lands, Eeyou Istchee, as we had forever. We did not “self-govern” – we simply governed. We did not need to apply to other governments for recognition of rights we had always had, and had always exercised.

But then those in the south took an interest in the hydroelectric potential of our territory. Without even a nod to us, the bulldozers began tearing up our rivers and lands. When we protested, the government told us that we, the  Cree people, had no rights, and that whatever rights we thought we had could be revoked at any time. These rights had only been granted “at the pleasure of the Crown”.

But we did not take this lying down. We did not stop. We went to court, even though we knew that the dams would be long built before our case would be decided. It was this violation of our rights that brought us to the negotiating table. We knew that if we did not negotiate, the development on our lands would proceed regardless, and conditions would be imposed on us.

And so we went to the negotiating table, reluctantly. The terms of those negotiations were not of our choosing. But, in their wisdom, our leaders made the best of these circumstances, and obtained the recognitions and benefits that they could. And we Crees lived to fight another day.

In the years that followed, we had great hopes for our communities and institutions. We expected that we would be able to deliver services that responded to our needs, in our own language, on our own lands. We expected that the new institutions would help to safeguard our culture and way of life, while also facilitating our participation in the new activities that were occurring in our territory. We intended, in signing the Agreement, to ensure that we could survive, and even thrive, as a people.

In the decades after the JBNQA was signed, we faced overwhelming challenges. We quickly realized that the institutions of so-called self-government that had been created by the Agreement would not enable us to achieve the clean water, roads, housing, health services, education, jobs or community centres that we had been promised in 1975. There was a fundamental disconnect between the promises that had been made to us, and the actual tools at our disposal as a people to bring those promises to life.

Our institutions of self-government were grossly and persistently underfunded. Once the dams had been built, and the governments had obtained the surrenders and extinguishments that they wanted, they had no reason to concern themselves with the Agreement they had made with us. Each year, the value and quantity of resources extracted from our territory increased into the billions of dollars. Each year, decisions about this development continued to be made without our participation and without regard for our needs. And meanwhile, each year, we were forced to spend compensation funds to deliver basic services in our communities – services that had been promised in the treaty we had signed, and that we knew were provided to non-Aboriginal communities across Canada as of right.

But we did not stop. We spent the next several decades in litigation and negotiations. We worked to force the federal and provincial governments to abide by the spirit and intent of their treaty obligations under the JBNQA. We worked to force them to respect what we knew to be our fundamental right to benefit from, and participate in, the extraction of wealth from the resources in our own backyard. 

We made it known, in every international and domestic forum we could, that our fundamental human rights as a people could never legitimately be extinguished. We warned that the legal certainty and legitimacy that the Crown was looking for could not be obtained or maintained through forced surrender. This certainty and legitimacy could only be obtained through honourable dealing, and meaningful treaty implementation.

And we stated, over and over again, our belief that an equitable, sustainable approach to development in our territory was possible and achievable. An approach development that is compatible with our way of life and our identity as a people. An approach to development that is based upon an enduring nation-to-nation relationship of coexistence and mutual respect.

The response we received from governments was the same throughout the years. We were told that the extinguishment of our rights was the price we had paid for the benefits we gained under the JBNQA. We were warned that our rights were limited to those explicitly set out in the Agreement, and that our refusal to accept this so-called “legal truth” put even those limited rights at risk. We were told that the government was complying with all of its legally enforceable obligations, and that the glaring deficiencies we identified were not treaty issues, but merely issues of public policy and politics.

We attended many meetings with government representatives who had no mandate to negotiate the real issues. We were presented with dozens of take-it-or-leave-it offers. Often, when we received offers to implement portions of the Agreement, these offers came with a further condition – that we agree to extinguish the minimal obligation that had been written down, in exchange for a one-time delivery of certain services, say of a fire station, or of a community centre, or of a right to an environmental assessment, or of a right to income assistance programs so that our hunters could stay on our land.

Despite these challenges, we did not stop. And in recent years, after nearly three decades of failure by the Crown to honour the spirit and intent of our agreement, we have experienced some success. In 2002, we signed the Paix des Braves. Under this agreement, the government of Quebec provides funding for the Crees to assume Quebec’s obligations under the JBNQA regarding economic and social development, for a period of 50 years. The amount of funds transferred is indexed to the value of mining, forestry and hydroelectric development, over the full extent of our territory. The Paix des Braves is premised on a nation-to-nation recognition that Cree consent is required for resource development in Eeyou Istchee. The Paix des Braves reaffirms our fundamental connection to all of the lands and waters of Eeyou Istchee. It implements our right to be involved in development on our territory, and to benefit meaningfully from that development.

In 2008, we concluded the “New Relationship Agreement” with the federal government. Under this agreement, the Cree Nation assumed certain federal obligations under the JBNQA for a period of 20 years. The New Relationship Agreement guarantees to the Crees the resources required to implement Canada’s outstanding obligations under the JBNQA. In negotiating the New Relationship Agreement, we adopted a new approach: funding was to be premised upon an assessment of the true costs of accomplishing the obligation in question. As many here today would attest, this is, unfortunately, a radical proposition when it comes to modern treaty implementation.

Finally, this year, we concluded the Agreement on Governance in the Eeyou Itschee James Bay Territory with the government of Quebec. This historic agreement creates a formal partnership in governance between the Cree nation and the non-aboriginal communities in the region. This will, we hope, permit us to work together to develop our territory in a way that is mutually beneficial. It is a step away from a governance model that excluded Crees, and a step towards a model of inclusion and respectful engagement.

Today, nearly 40 years after the JBNQA was signed, I can report that progress is being made, and it is being made by our own institutions, and our own people.

These agreements are positive steps. But there remain significant challenges, and there is still work to do. These agreements do not represent a full recognition of our rights. There is also still a considerable way for us to go before it can be said that the James Bay Crees enjoy a standard of social and economic development that is the equivalent to that other Canadians take for granted.

Like the Royal Proclamation, modern treaties are full of potential. They present an opportunity to overcome some particularly shameful aspects of Canadian history, to step beyond the policies and practices of colonialism. They affirm nation-to-nation and government-to-government relationships between Aboriginal peoples and the Crown. They provide a foundation for the mutually-beneficial and sustainable development and use of Aboriginal peoples’ traditional lands and resources. Modern treaties are not about surrendering our rights. They are about working together to give practical effect to our rights, on an on-going basis.

Yes, if properly implemented, modern treaties have great potential. They can be important vehicles for meeting Canada’s human rights obligations. They can provide a framework for mutually-beneficial relationships between the Crown and Aboriginal peoples. They can contribute to the survival and well-being of Aboriginal peoples, as peoples.

Unfortunately, if they are not properly implemented, they also have the potential to perpetuate great harm. They can become a tool of dispossession. They can be used to disenfranchise and marginalize us.

And so we must not stop. We must continue to fight for the recognition of our rights. We must not back down in the face of the Crown’s failure to respect the spirit and intent of our agreements. Together, we are strong. Events like today make that abundantly clear. Together, we can work to ensure that modern treaties are respected, honoured and fully implemented so that we may achieve their objectives.

We must not stop. Modern treaties must reflect what the Royal Proclamation was intended to be, when it was ratified at Niagara 250 years ago: a recognition of Aboriginal peoples as nations with a special relationship to our traditional territories. The spirit of modern treaties must be understood as being as significant as the technical legal obligations contained within them. It must be understood that modern treaties are not about extinguishing Aboriginal rights, but rather about a commitment to work together to give effect to these rights. And until this has been achieved, we must not stop.