For Your Information:
Treaty Denial 1779-1982
By SIMON OSMOND
Atlantic Policy Congress*
There are six phases of Treaties that are included within our Treaty Education Initiative. They are: Indigenous Diplomacy, Treaty Making (1693-1779), Treaty Denial (1779-present), Treaty Litigation (1928-present), Treaty Recognition (1982-present) and finally Treaty Implementation (present). Each phase deals with a specific timeframe. Below are short descriptions from the Treaty Denial phase.
From when the last Treaty was signed, to the repatriation of the Constitution Act 1982, Treaties have not been given the full recognition it deserves, whether it is from the Governments to the Courts. Many things have been in place to ensure Aboriginal and Treaty rights continue to exist through the treaty denial phase, including proclamations & Acts, that were in place but never followed by the crown (British). Listed below are a few examples of those Royal Proclamations and Acts.
King George III issued a Royal Proclamation in 1763. King George noted, "Great Frauds and Abuses have been committed in purchasing Land of the Indians." Because of this, King George issued a protocol that must be followed when dealing with Indians and Land including "that Indian Lands must be alienated to British Crown before settlement can occur." Finally, the proclamation guaranteed unmolested or undisturbed possession of "hunting grounds" for Indians. Some people have argued that the Royal Proclamation does not apply in the Maritimes, but two lower court cases that say otherwise are Francis (1958) and Isaac (1975).
From 1763 we jump ahead to 1867 with the creation of the British North American Act (also known as the Constitution Act). Within this act it took away from the provinces and territories their responsibility for Indians and made "Indians and lands reserved for Indians" a Federal responsibility under s.91.24.
Also Section 132 BNA Act talks about "Treaty Obligations," but this section does not apply to Treaties signed with First Nation. Section 2 states,
"The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries."
From reading this section, one would think First Nations would be included, because the crown signed Treaties with First Nations. This was not the case. First Nations instead became the responsibility of the Federal Government.
Because of section 91.24 of the BNA Act, a federal piece of legislation was introduced and implemented without the consent or input of First Nations: The Indian Act of 1876. The Indian Act would affect First Nations from the time they are born to when they died. When the Minister of the Interior, responsible for First Nations, addressed the House of Commons on the Introduction of the draft Indian Act of 1876, he stated, "the Indians must either be treated as minors or as white men."
In 1951 changes to the Indian Act included for the first time section 87, which deals with legal rights: (Section 87 is now known as section 88 of the Indian Act 1982.)
87. subjects to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made there under, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act. 1951, c. 29, s. 87.
These examples are just one part of the six phases of Treaties that we present to University, College, Schools, Organizations, Federal and Provincial Governments, etc. If you are interested in learning more about the six phases of treaties or would like us to come and present at any of your gathering or schools, please feel free to contact us at (877) 667-4007.
*From Mi'kmaq-Maliseet Nation News, June 2003
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