Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 19 - Evidence - March 28, 2017
OTTAWA, Tuesday, March 28, 2017
The Standing Senate Committee on Aboriginal Peoples met this day at 9 a.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room or listening via the Web.
I would like to acknowledge for the sake of reconciliation that we are meeting on the unceded traditional lands of the Algonquin peoples.
My name is Lillian Dyck, from Saskatchewan, and I have the honour and privilege of chairing the Standing Senate Committee on Aboriginal Peoples. I will now invite my fellow senators to introduce themselves, starting on my left.
Senator Watt: Charlie Watt, Nunavik.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Pate: Kim Pate, Ontario.
Senator Sinclair: Murray Sinclair, Manitoba.
Senator Boniface: Gwen Boniface, Ontario.
Senator Plett: Don Plett, Manitoba.
Senator Beyak: Lynn Beyak, Ontario.
Senator Oh: Victor Oh, Ontario.
Senator Raine: Nancy Raine from B.C.
Senator Tannas: Scott Tannas from Alberta.
The Chair: Thank you, senators.
Today we continue our study on what a new relationship between the Government of Canada and First Nations, Inuit and Metis peoples of Canada could look like. We continue looking at the history of what has been studied and discussed on this topic.
Today we're pleased to welcome back once again Jim Miller, Professor Emeritus of History from the University of Saskatchewan, my old stomping grounds. Dr. Miller is back today to discuss treaties and the treaty process.
Professor Miller, we are happy to have you back. You have the floor. As you know, following that, we will be opening the floor to questions from the senators. Please proceed.
J.R. (Jim) Miller, Professor Emeritus of History, University of Saskatchewan, as an individual: Thank you, Senator Dyck, and good morning, senators. It's a pleasure to be with you once again to discuss another extremely important topic. What I'm going to say by way of an introduction is a précis of this book on the history of treaty-making, a copy of which I've provided to the committee.
In "Reconciliation,'' the sixth volume of its final report, the Truth and Reconciliation Commission emphasized the importance of treaties:
It is important for all Canadians to understand that without Treaties, Canada would have no legitimacy as a nation. Treaties between Indigenous nations and the Crown established the legal and constitutional foundations of this country.
The TRC's forty-fifth call to action recommended that Canada "Renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future.''
The TRC saw the treaties as key for moving toward reconciliation. Treaties are critical to creating a better future with indigenous peoples.
What are these agreements and why are they so important? Treaties have always been at the centre of the relationship between indigenous peoples and immigrants from contact in the 16th century to the present. They are so central, in fact, that it has become commonplace that Canadians "are all treaty people.''
Less understood, though, is that these pacts between Crown and indigenous peoples have gone through a complex evolution over the last 500 years and that they have taken many forms during that transformation.
The earliest treaties were commercial compacts between European newcomers who came to the shores of North America in search of fish and furs, and the indigenous people who often became partners in these economic activities. Particularly in the fur trade, cooperation was essential because the Native people were numerous, knowledgeable and highly skilled in the commerce, while the Europeans were few in number and largely ignorant about the flora and fauna of North America.
Europeans lacked knowledge about how to get furs and make them marketable. The need for cooperation was obvious. But First Nations, unlike Europeans, who viewed trade as contract relations, did not deal with people whom they did not know. They needed first to determine if those strangers were hostile to them or not. The indigenous solution was to use fictive or ascribed kinship to make, and subsequently to renew regularly, a family-like relationship between themselves and the newcomers. Kin were made by involving them in ceremonies such as formal welcomes, speeches of greeting, exchange of gifts and, above all, smoking the pipe together.
If Europeans wanted to trade in furs with First Nations, they had to participate in those ceremonies initially, and at regular intervals later, to become and remain kinfolk with whom the indigenous people would do business. Because the early fur-trading companies that represented both France and England held mandates from their respective monarchs to represent the Crown, those ceremony-based pacts can legitimately be seen as commercial compacts. They were the first form that treaty took.
Over time, newcomers developed a second reason for entering agreements with Natives, thereby ushering in a second form of treaty. From the 17th century on, both the French and the British in Eastern Canada sought arrangements with First Nations to help maintain diplomatic partners in peace and allies in warfare. To that end, the French and British made treaties of peace and friendship with First Nations on the foundation of the fur trade. They usually made those treaties in the same way, by means of indigenous ceremonies. By the 1700s, in the Maritimes, the British were employing formal treaties that they recorded in documents, while the French continued to rely on informal compacts for peace and friendship alliances.
For their part, First Nations did not distinguish between friendship treaties and the earlier commercial compacts. As an Onondaga diplomat said to the Governor of New York in 1735, "Trade and peace we take to be one thing,'' and that one thing was the kin-like relationship that had been forged through use of ceremonies. Commerce and diplomacy, trade and alliance, were but two sides of the same coin — a coin of kinship created and continued by ceremony.
First Nations recorded these agreements in their own way. In the Northeast Woodlands, First Nations memorialized their agreements with the British or French by the use of wampum — strings of shells strung on deer skin. Those peace and friendship treaties assumed great importance by the 18th century as the continent was increasingly embroiled in warfare rooted in European rivalries.
The Great Peace of Montreal of 1701, for example, included about 35 First Nations from a vast expanse of the continent, and it ended six decades of intermittent warfare between the Iroquois and their French allies.
In Nova Scotia in the first half of the 18th century, Britain negotiated a series of treaties with Mi'kmaq bands, some of which would figure in the critically important Marshall decision of the Supreme Court in 1999. Marshall is a reminder that though treaties are rooted in Canada's past, they remain relevant in our own times.
When the period of extended war between France and Britain ended in the 1760s, the aftermath produced a new policy and a new form of treaty. When Britain acquired almost all the former French possessions in 1763, it had to make provision for colonies that were different from the standard British model. French colonies like Canada and Acadia did not have elective assemblies and courts using British law. As well, they were populated by Roman Catholics who did not enjoy civil rights in a British world that was intensely anti-Catholic.
The need to make provision for its acquisitions from France led Britain to make the Royal Proclamation of 1763. While most of the proclamation dealt with boundaries and institutions of governance and law, the last six paragraphs focused on First Nations and their relationship to Britain. In order to prevent fraudulent purchases of Indians' land that had caused troubles in the Thirteen Colonies in the past, Britain laid down a new regime for First Nations' lands, which it described as lands "reserved to them . . . as their Hunting Grounds.''
Henceforth, when First Nations were willing to give up land, they could do so only to the Crown, and only at a public meeting of the First Nations that was called for the specific purpose of making a transaction for the land. The procedure that the royal proclamation established paved the way for a third form of treaty-making: territorial treaties that dealt with First Nations' lands rather than with their friendship or commercial activities.
In 1764, the head of the Indian Department, William Johnson, held a conference with First Nations leaders at Niagara and secured their agreement to the royal proclamation's procedures for acquiring indigenous lands. In this way, the royal proclamation and the Treaty of Niagara ushered in the era of territorial treaties that lasted from 1764 to 1923.
While the royal proclamation provided the framework for territorial treaty-making, the older ways of fashioning agreements were not forgotten in this new era, at least not for a while. Indigenous ceremonies continued to be central to the councils that Crown representatives and First Nations held about land for the next century as territorial treaty- making was refined in Upper Canada, the future Ontario.
A succession of treaty-making phases ensured that the Crown obtained agreement to share the land on which to settle newcomers. The first phase occurred when Loyalists, both Native and non-Native, migrated from the victorious United States after 1783. The second phase took place when displaced allies and then waves of British immigrants flooded into Upper Canada after the War of 1812. The final phase came when mining entrepreneurs in Ontario's near north wanted access to resource-rich lands in 1850.
At each of these stages new elements of treaty-making were put in place that would shape the Canadian way of making territorial treaties. The first Upper Canadian treaties covered relatively small areas along the lower Great Lakes and St. Lawrence River in return for one-time payments.
The second group, after the War of 1812, moved further inland and employed annual payments, known as annuities, instead of single payments.
Finally, the Robinson Treaties of 1850 and the Manitoulin Island Treaty of 1862 dealt with larger areas of land, provided for reserves to be created for First Nations who entered treaty, and continued explicit recognition of continuing First Nations' rights to fish, hunt and gather in the territories that the treaties covered.
In other words, by Confederation, the treaty system we recognize today had been built on the foundation of the royal proclamation. In the process, though, the use of indigenous ceremonies had been eliminated almost entirely as the newly established settler society that had no memory of the old relationship based on commerce and alliance took over the colony.
As is well known, after Confederation the new Dominion of Canada was eager to acquire the Hudson's Bay Company lands known as Rupert's Land in the northwest. Somewhat surprisingly, though, indigenous ceremonies re- entered the picture as the southern numbered treaties were made between 1871 and 1877 to cover the large area from Lake of the Woods to the foothills of the Rockies. The reason for this reversion to ceremony was that the First Nations involved in the numbered treaties in the West had learned to deal with newcomers in the fur trade, which was ongoing still. In that relationship, of course, kinship and ceremony were key elements. And so Canada's negotiators after 1871 found themselves becoming experts in formal speeches, gift-giving, offering food and smoking the pipe.
Superficially, it appeared that the old days were back. In fact, though, the underlying relationship had changed dramatically and would continue to evolve in ways that did not benefit First Nations.
One of the differences was the way in which the parties perceived the agreements they made. First Nations understood the numbered treaties to be covenants; that is, agreements that involved two human parties and the deity. Canada's negotiators occasionally used the language of covenant, but it would soon become clear that they thought about treaties in terms of contracts.
A devastatingly important change entered the relationship while the numbered treaties were being negotiated. In April 1876, Parliament passed the Indian Act, a compilation of existing laws relating to First Nations that treated Indians as legal children whose trustee was the Crown. Western First Nations leaders continued to think and talk in terms of ceremony and a kinship relationship, but the new legislative framework showed that Canada thought in terms of its paternalistic domination and First Nations' subordination. The shift from kin-like ties to a ward-and-trustee relationship that began in 1876 has probably been the single most destructive feature in Native newcomer relations.
The new dispensation played itself out during the remainder of the era of territorial treaties down to 1923. Although northern First Nations repeatedly called for additional treaties from the 1880s on, Ottawa systemically ignored them unless it felt some need for more First Nations' lands.
Treaty 8, for example, was made in 1899 because Canada wanted to regularize relations in the overland routes to the Klondike gold fields. Treaty 9, in northern Ontario, was finally negotiated in 1905-06 when Canada and Ontario were getting organized to exploit the mineral resources of the region.
Perhaps the most glaring instance of Canada's opportunistic and self-centred approach occurred in the southern portion of the Northwest Territories. Although many First Nations there had long petitioned for treaties, the Crown had ignored their requests. Then in 1920, oil was discovered at Norman Wells; and, as a result, in 1921 Treaty 11 was negotiated.
The final example of territorial treaties, the Williams Treaties in Ontario, were treaties in name only. They were not negotiated but put forward on a take-it-or-leave-it basis. They had no provision for reserves and gathering rights, and they made small one-time payments to resolve issues that went back to some of the earliest Upper Canadian treaties of the 1780s and 1790s.
Territorial treaty-making stopped for half a century after 1923. First Nations dropped down the government's agenda when it became preoccupied with the Great Depression of the 1930s and then the Second World War. But after 1945, the natural resources boom led to greater interest in Aboriginal lands.
While those conditions were emerging, other important changes occurred. First Nations became better organized politically, and in the 1960s they formed their first pan-Canadian body. As well, public opinion and judicial attitudes were shifting in this period. This transformation became evident in 1973 when the Supreme Court of Canada recognized the existence of Aboriginal title in the common law in the Calder case. Calder provided First Nations with a powerful weapon to defend their territorial interests.
And so when the Province of Quebec began to develop a massive hydro-electric power project in the James Bay watershed in the early 1970s, indigenous people took steps that would lead to the modern era of treaty-making. The James Bay Cree actually got the James Bay development stopped briefly with a temporary injunction, but that was quickly overturned. Still, the assertiveness of the First Nation, combined with the Calder decision, stimulated the federal government to create a claims resolution regime that included settling Aboriginal title claims. This category, which the government called "comprehensive claims,'' eventually would produce the James Bay and Northern Quebec Agreement, the Nunavut agreement, and the Nisga'a, among others related to Northern Canada, such as the Inuvialuit agreement. The comprehensive claims process still continues, although slowly.
The other type of modern treaty is the one that has emerged from the British Columbia Treaty Commission process. Since 1992, the BCTC process has yielded four new treaties for eight First Nations in a province where most land is still under Aboriginal title. Moreover, recent Supreme Court of Canada decisions, such as Delgamuukw in 1997 and Tsilhqot'in in 2014, have strengthened the hands of First Nations. But progress under the BCTC process remains sluggish, and there's little optimism about its future prospects. All the same, some way will have to be found to conclude more treaties in British Columbia and, indeed, in many parts of Canada because the costs for everyone of not doing so are simply too great.
So here we are in 2017. Canada finds itself in the midst of a fourth phase of treaty-making, that of the modern system of comprehensive claims and the British Columbia Treaty Commission process. This stage follows the phases of commercial compacts and peace and friendship treaties, as well as the lengthy era of territorial treaties.
Although treaty-making at times has been a troubled process, it has been and remains a vital one. In a country where section 35 is part of the Constitution and leaders like to say, "We are all treaty peoples,'' putting an end to treaty-making is simply unthinkable. More important than that, though, is the positive case for treaty-making that the Truth and Reconciliation Commission has made.
If Canada's past is a cautionary tale about what not to do, it also holds a more constructive history lesson for the future. The Treaties are a model for how Canadians, as diverse peoples, can live respectfully and peacefully together on these lands we now share.
The federal government could begin to respond to the TRC's exhortation by honouring the existing treaties properly. Thank you.
The Chair: Thank you, Professor Miller. You've covered several hundred years of history in a very short period of time.
We'll now open the floor to questions from senators.
Senator Tannas: Thank you for being here, Dr. Miller. This study is meant, after history lessons from folks like you that give us the right grounding, to try and look at the future. The treaty process for the new millennium is what I'm wondering about. You are the foremost expert in treaties, I understand, and their good and bad features.
As we embark on trying to make recommendations — but even further than that, let's say we recommend there should be a new treaty framework for this century — based on what you've read and learned, who should negotiate those? Lawyers? Bureaucrats? Lawyers and bureaucrats? Or should the leaders of the various groups be embarking on this? Based on your observations and expertise, when the time comes to make a deal for the future, who should we be relying on to do that?
Mr. Miller: I assume we all agree that on the indigenous side, it will be the leaders of those communities who will be doing the negotiating.
On the other side, I think we're still bound by the royal proclamation, which said if Indian nations wish to give up lands, they should do so only to us, with "us'' being the Crown. That means the Crown in right of Canada, the Government of Canada and its agents. Who those agents should be, I think, is your question.
Senator Tannas: It really is. Should we make up a nice set of recommendations and recommend that the Department of Indian Affairs negotiate the future for us? Do you think that's the right way to go? How do we get the right people to engage and who are the right people? I guess that's what I'm looking for.
Mr. Miller: We live in a parliamentary democracy and it has to be the people who have the responsibility to the electorate, so it has to be the people the government appoints. In the past, it has appointed a considerable number of lawyers to do that work, but not only lawyers. In some cases, it's distinguished and experienced people who know their way around the subjects.
I don't think there has been a problem in the past with the people they've appointed to represent government so much as the mandate they gave those people. If you think about the BCTC process, for example, I've been told by at least one person close to the process that federal negotiators simply didn't have much of a mandate to conclude meaningful agreements. That's why we weren't getting agreements for the BCTC process.
So, yes, I think it's experienced and knowledgeable people, not necessarily lawyers, but lawyers often have the skills. But above all, it's people who have a mandate from the government, from the people, who have to answer for the results to the electorate.
Senator Tannas: Is there any single person or situation that you can point to from the past that says this person or this process, this little moment in time, has elements that could be applied in the future and should be looked at as a good example?
Mr. Miller: There isn't any single model of Crown negotiator who has been successful in the past. William Johnson was a fur trader and a bureaucrat. Sir Frederick Haldimand was a military officer, and Alexander Morris was a lawyer and a judge. So I don't think it's the type of person, as long as you have the right temperament and the right mandate.
Senator Raine: Of course you're aware that in our federation of Canada, land is under the jurisdiction of the provinces, yet the fiduciary responsibility for First Nations peoples is federal. What concerns me about what's going on right now in British Columbia is that you have two duly elected governments representing the people, but it's very confused as to who actually has the rights.
The concern is that there are a lot of freehold land title owners or people in British Columbia who are non-First Nations that have occupied and settled in regions that are under claim and have generations of investment in the land. It seems like nobody is representing their rights in this negotiation.
I think that in British Columbia the situation is a little different than in other provinces. Can you envision some kind of a tribunal that could be set up and would deal specifically with the claims in British Columbia? I think we all know that to go forward, we have to come to some fair and just settlements.
Mr. Miller: I believe the BCTC process had provision for an advisory body to represent third party interests, as the phrase has it. Perhaps a more effective version of that would serve the purpose, certainly third parties, people affected, as you suggested, but any treaty that is made should be represented in some fashion or another.
You can understand First Nations' reluctance to see the process flooded with representatives of third party interests, however, because they could very well be overwhelmed and the process could be bogged down even worse than it has been for the last 25 years. But, yes, it would be legitimate to see them represented. Formally and in an institutionalized way — that is, with particular officers involved or not, I'm not so sure about that.
Senator Raine: In British Columbia, politicians have always said that no fee simple title land is on the table for negotiation without compensation. Fee simple land is one thing, but grazing rights for ranchers is not fee simple land. However, without the grazing land available, the ranch is worthless. So there's a huge amount of anxiety right now. I'm wondering if you have seen this in other parts of the country, in our history, where agreements with government by third parties can become null and void in the settling of treaties.
Mr. Miller: The example you've just given is a very good one of some of the complexities that can arise in these negotiations.
There is a successful model for dealing with that type of thing, and it was called the Treaty Land Entitlement system in Saskatchewan from the 1990s onward. There was a large number — I've forgotten the precise number — of First Nations who did not get the quantum of land to which they were entitled when they made a treaty. In an effort to settle that in 1992, an agreement was concluded whereby they would be able to acquire the lands to come up to their quantum.
The governing principle about the lands, though, was that it was on a willing seller/willing buyer basis. That was one of the two ways that the lands were acquired under TLE. The other way was simple transfer of Crown-controlled lands.
In the Prairie provinces, we also have that problem of grazing rights on Crown lands. It's a very complex issue. But on the whole in the Saskatchewan case, using that principle of willing seller and willing buyer seems to have worked pretty effectively.
Senator Enverga: Thank you for your presentation. In the last line of your statement, you said:
The federal government could begin to respond to the TRC's exhortation by honouring the existing treaties properly.
We have a modern treaty style, which was started in something like 1973. Can you give me an example of existing treaties that are not being honoured? How bad is it? Are they being honoured today? Can you explain that?
Mr. Miller: There is somewhere in the neighbourhood of a thousand outstanding claims. Many of them are treaty- related. I'll give you a specific example of what I had in mind when I wrote that.
Recently before a federal tribunal, Beardy's & Okemasis First Nation in Saskatchewan succeeded in a claim that had to do with unpaid annuities, those annual payments under Treaty 6. Following the North-West Rebellion in 1885, the Crown unilaterally stopped paying annuities to over a dozen First Nations, alleging they were rebel bands. They weren't, but the Crown alleged it and refused to pay annuities.
I think 13 bands went to the tribunal saying, "This is a breach of lawful obligation on the Crown's part, and we should be paid those annuities, plus interest. "
The test case was Beardy's & Okemasis. They succeeded. The lawyers for Beardy's & Okemasis then said to the Crown, "We have 12 others that are exactly the same and would like to settle them all on the same basis; in other words, a comprehensive settlement of all those.''
So far the Crown has not responded to that overture. I'm not saying it will not happen, but there is a possibility that they could go on fighting case after case where the precedent has already been set, just the same way they went on fighting case after case on residential school abuse claims between the late 1990s and 2005. That's a specific hard example of what I have in mind.
Senator Enverga: Why is the government holding back or pushing back, if they are in the same place?
Mr. Miller: I can't tell you in this specific case. I can only tell you what a former deputy minister of justice said to me when I interviewed him and asked him why they fought all the residential school abuse cases. He said, "The role of the Department of Justice is to serve its client. It has only one client, and that's the Government of Canada. We give that client the best advice we can on the information we have at the time.'' That was his explanation. At that point they believed it was in the government's interest to fight them.
Senator Enverga: It doesn't make sense.
Mr. Miller: Then it changed and they had a huge settlement agreement.
Senator Enverga: Those are the old treaties. There are new and more modern treaties. Are they better? Are they being followed to the letter?
Mr. Miller: No, I'm afraid not. I shouldn't laugh because it's not funny.
The leaders of the James Bay Cree said that after 15 years of experience with the James Bay and Northern Quebec Agreement, which was concluded in 1975, negotiating the treaty is only half the battle; implementation is the other half, they said. Indeed, Quebec First Nations had to go to court to compel the governments to honour all the treaties. Implementation is always an ongoing battle, apparently.
Senator Enverga: I understand there are issues with the old treaties. Would you suggest that we renegotiate or change the old treaties into modern treaties, if the new treaties are a little better?
Mr. Miller: I don't think it's necessary to change what the government calls "the historic treaties,'' senator. They can be interpreted and brought up to date for a modern time without changing the treaties themselves. That would be more reassuring for First Nations, if that were the approach taken, that is, reinterpreting the old treaties by agreement and negotiation, essentially. That was tried in Saskatchewan under the treaty commission between the late 1990s and about 10 years ago, with limited success, I have to confess.
Senator Enverga: I am surprised about that.
Senator McPhedran: Professor Miller, thank you very much. Given your affiliation with the University of Saskatchewan, I want to put on the record that two of the best years of my time teaching in universities were at the University of Saskatchewan.
My question relates to not only the past but also your sense of what may be possible now and into the future. Picking up on the question from Senator Tannas, I wonder if you could share any examples of women being involved in treaty negotiations and settlements. Also, could you offer your thoughts on the potential for greater inclusion of the expertise and experience of women as we go forward?
Mr. Miller: If I may address the historic treaties first, in that case we know from what First Nations, historians and others have told us that there was a two-stage process in the First Nations and that women were consulted by the people who were doing the negotiation with the Crown, so they were involved indirectly. They weren't, as it were, at the table, but they were indirectly involved.
The best example I could point to in the recent past would be the Tsawwassen First Nation. They are one of the four treaties in British Columbia. Of course, their leader was Kim Baird, who was an amazing, effective, powerful leader. Given the increasing number of women who are becoming First Nation chiefs, there is every reason to see more and more women directly involved in those negotiations.
To be honest, it would be salutary and helpful if that happened. I used to joke, perhaps inappropriately, when asked about my solutions for the problems, I would say to elect a woman chief of every First Nation and things will improve dramatically.
Clearly that is not a viable solution, but there is a correlation between female leadership and effective leadership. There are fewer problems, particularly in the Prairie region, that have been documented. I would welcome that development that I have described — more and more women becoming directly involved in the negotiations.
Senator McPhedran: To that point, bringing this into more of an international context for a moment, what we're starting to see internationally is very clear evidence that agreements hold for longer and usually bring greater stability when women have been involved in the negotiation and implementation of the terms of the peace agreements.
We're starting to see some establishment of protocols and requirements where negotiations don't begin unless women are at the table, with designated participation rights. Would you see any potential for that in our possible scenarios in Canada?
Mr. Miller: That question should be answered by the indigenous communities through their political leadership. I don't think it should be prescribed for them. If you consult AFN and Inuit Tapiriit and get them on side, that would be wonderful.
Senator Sinclair: I have a lot of questions, but I will try to focus them back to the royal proclamation issue and the treaty-making process that resulted from that.
First of all, in a presentation he gave to this committee a couple of weeks after your first presentation to the committee, Professor John Borrows, who has written a number of publications around the royal proclamation and its implementation or discussion at Niagara in 1764, refers to the process at Niagara in 1764 as a treaty in the historical sense. He referred to it as a treaty of Niagara and suggested that it incorporate the provisions of the royal proclamation.
In the royal proclamation, assurances are given to indigenous leaders and tribes that their lands will continue to be their lands until they are surrendered to the Crown. There are also assurances given that the Crown will not interfere with their internal functioning while they are on their lands or hold their lands.
Do you see the royal proclamation process of 1764 — the Treaty of Niagara of 1764 — as a treaty in the same sense as the other historic treaties you referred to?
Mr. Miller: Yes, I have been persuaded by Professor Borrows' argument and evidence. In fact, I was working on this book on the history of treaty-making when that came out. Research assistants and I went through all the evidence that John cites in that. What we find is that William Johnson, who was the head of the Indian Department — his official title was Superintendent of the Northern Indians, under the British Indian Department — had a number of copies of the royal proclamation made for the winter of 1763-64 and distributed it so it would go to First Nations communities and they would become aware of it through interpreters. Then he invited a large number of First Nations leaders to that conference at Niagara in 1764.
That's the point at which the evidence chain gets a little feeble because we know it was his intention to present it to them and get their agreement, but we don't actually have a document that says, "I presented it to them and they all agreed.'' What we do have is a wampum belt which embodies the agreement and, I think, can be seen as good as a European-style document.
So to conclude this, I think it's a completely reasonable inference, as Borrows inferred and concluded, that the proclamation was converted into a treaty by agreement by First Nations leaders at that conference at Niagara in 1764.
Senator Sinclair: When one looks at the post-Confederation numbered treaties, they really look like land transfer documents. There are provisions in there, of course, regarding ammunition, medicine chest clauses and other relatively minor payment provisions, but the essence of the agreement is the transfer of land, as you referred to, and the issue of territoriality and giving up territory.
I have been part of several discussion groups in which people have raised the question, in the context of self- government: Why did indigenous leaders not push for recognition of self-government and self-determination and the protection of their ability to maintain their culture, language, identity and heritage in the treaties if they were so important? Isn't it implied by the surrendered document that they were intending to give that up as part of the treaty- making process?
When you look at the royal proclamation and its assurances and the fact that oral history would have continued to repeat those assurances among First Nations, are you persuaded that at the time of Confederation and thereafter, when the treaties were being signed, those royal proclamation assurances that First Nations tribes had been given would be continued to allow to function and didn't need to be in the treaties? Would they still be considered as part of the treaty/Crown relationship and that the treaties were really only about transferring land?
Mr. Miller: With respect, senator, I would like to suggest a correction to something you said.
When you look at the government's version of the treaty, as you began, that's one version of the treaty. There are the oral versions of the treaty, too. When you consult the oral versions of the treaty that First Nations have reserved, you see, as I tried to suggest in my introduction, that the emphasis is upon not the specific terms — the annuities, quantum of land and so forth — but on that covenant relationship between the Crown's representatives and the First Nations overseen by the deity.
Why did they not make detailed provisions for the various things that you mentioned? Because it wasn't necessary. If you had a kin-like relationship of mutual support and friendship, those details were unnecessary. Your kin partners would adjust the relationship as circumstances required because that's what kinfolk do. That is the reason why they would not have pushed for all the details you might have expected.
They did push for things like guarantees of education and specificity about reserve limits and so forth. But on the whole, all that detail is unnecessary because you have that relationship, and that is what matters.
Senator Sinclair: In a speech given in the Senate by Senator Beyak, she made the assertion that indigenous peoples should give up all of their Aboriginal and treaty rights and simply take a lump-sum payment for those rights and assimilate into Canadian society. As a historian and a researcher, do you see any support for that or any movement for that in the indigenous communities?
Mr. Miller: No, I do not see any support for it in the indigenous communities. I also know as a historian that Canada had been trying since the 1830s to bring about that type of a resolution, and it has always failed because First Nations have always resisted the loss of culture and identity.
Senator Sinclair: Thank you.
Senator Boniface: Thank you for being here. I appreciate your presentation. I wanted to zero in and better understand your reference to the Williams treaty. You indicate it was a treaty in name only. Can you give me a little more detail? It appears that it took a turn in terms of the negotiations at that point.
Mr. Miller: I think historians will tell you that context matters all the time, of course, but context matters particularly when the Williams Treaties were made in 1923. The Deputy Minister of Indian Affairs at the time was Duncan Campbell Scott. In 1920, appearing before parliamentary committee, he said, "I want to get rid of the Indian problem.'' He goes to explain that he wants to get rid of Indian identity and that everybody will be amalgamated into one body politic; everybody will be part of the community. That was the approach of government in that time.
What they were responding to in the Williams Treaties were a series of anomalies, errors and omissions that had occurred when some of that first phase of negotiations of the treaties in the 1780s and 1790s to accommodate the Loyalists and so-called Late Loyalists who came at that time. Definitions of the land covered were sometimes incomplete and various other details were missing. What they were trying to do was just clear the deck and clean up all those problems. The government's solution, on a take-it-or-leave-it basis, which I think can be explained in terms of who the deputy minister was, was "We'll give you this money and that's the end of all those complaints.''
Senator Boniface: Thank you.
Senator Christmas: Professor Miller, thank you for coming back to the committee. I wasn't present during your first presentation. I read the transcript with great interest, so I was very pleased to have you back.
I'm very intrigued by your description of Canadian history and the four phases of treaty-making. I think a lot has been said about the first three phases. As you know, we as a committee are looking at ways of trying to reset a relationship between the Crown and indigenous people in Canada. So I'm thinking about this new phase, what you call the fourth phase of treaty-making.
I basically have two concerns. The first one is regarding the UN Declaration on the Rights of Indigenous Peoples. How do you see that fitting into phase four?
My second concern, following up on Senator Tannas' question is who should negotiate on behalf of the Crown?
I have my doubts whether or not the current Department of Indigenous and Northern Affairs has the right framework to represent the Crown in treaty negotiations. They are basically formed because of the Indian Act, and they are regulatory and represent the Crown's interest.
I also found very interesting how you defined the Department of Justice as only having one client, that it only serves the Government of Canada. So if the Crown negotiators are the Department of Indigenous and Northern Affairs and Department of Justice, it seems right away that the table is slanted. It brings a bias to redeveloping that new relationship.
So my second question is this: How should the Crown or who on behalf of the Crown should negotiate in this fourth phase of treaty-making?
Mr. Miller: I have to repeat what I said in response to Senator Tannas: We live in a parliamentary democracy and the people who have the responsibility and have to face the electorate are the people who have to make the decision. That means the government, subject to approval by the two houses of Parliament, of course. I do not see any way around that. If the government chooses to leave the mandate in the hands of INAC and the Department of Justice Canada, then that is the way it is, unless they can be persuaded by electoral means or other pressure to change it.
I would ask you, if not those departments, then who? Are they to create a completely new department and go through the birthing pains and the growing pains of a new bureaucracy in learning the rules of the game, as it were? There could be real drawbacks to that approach as well. Personally, I would rather see a reformed and reinvigorated Indigenous and Northern Affairs Canada doing it than a new bureaucracy.
Senator Christmas: Professor Miller, what about the UN Declaration on the Rights of Indigenous Peoples? How does that fit into the next phase of treaty-making in Canada?
Mr. Miller: I think we should develop and refine our negotiating protocols according to what suits us as a country in light of the precepts and principles of the UN declaration. But we have to keep the focus on our home territory and our communities — their histories, their cultures, their aspirations. We have to make sure, of course, that we don't do anything that is in contravention of the principles of UNDRIP, but we have to pay attention to "home fires.''
Senator Raine: Could you comment on the Treaty of Waitangi and the treaty commission or tribunal that they have in New Zealand? That's not a government department. As I understand it, it's an organization set up for dealing with issues arising out of treaties. Could we have something like that in Canada? Again, I'm concerned about the jurisdictional issues between the provinces and the federal government.
Mr. Miller: We do have something like that, but it's on a smaller scale, with a much more limited mandate. The Specific Claims Tribunal, for example, deals with allegations that the government has breached its lawful obligations to First Nations and other groups.
The Waitangi Tribunal has had its successes. It's also subject to a fair bit of criticism in New Zealand because it's expensive and time-consuming. Academics love it because it sponsors all sorts of wonderful research that they and their students do. It has produced some very good scholarships, which has been important, but it's not without its critics.
There is one enormous difference between the New Zealand situation and Canada, however, and that it that they are dealing with the interpretation of one treaty, as we discussed when I was here before. New Zealand academics and Maori will tell you, "Yes, but we have a thousand interpretations,'' which is true enough. Conversely, in Canada, you have hundreds of treaties that any such body would have to deal with.
But we do have some bodies. We have the BCTC in your home province. We have the Specific Claims Tribunal. We have the comprehensive claims process. Perhaps we should improve those where we can rather than create something brand new.
Senator Raine: I have a question about the Nisga'a treaty, which was negotiated and settled. However, within the Nisga'a communities, there were centres that felt the leadership did not represent their interests. The Chief Mountain appeal was made. They tried to take it to the Supreme Court, but successive governments with their resources were able to really prevent the appeal from proceeding.
I was struck with the message from Chief Mountain, who basically said, "I am Canadian. Why shouldn't there be one united Canada where we all walk shoulder to shoulder, equal before the law?'' He and the supporters of his appeal were very concerned about two separate legal statuses for Canadians. The constitutionality of the Nisga'a treaty was questioned, and I believe some Supreme Court justices supported the appeal but it never really got to court.
It's kind of unfinished business regarding the laws, the constitutionality of the Canadian Constitution versus the Nisga'a and subsequent treaties as well. Going forward, will sorting this out be part of phase four?
Mr. Miller: You probably know this part of the history better than I do, senator, but I thought there was a legal challenge to Nisga'a before ratification. The courts quashed that action, so it was okay.
As far as disputes about the terms of treaties, as you find in Nisga'a, for example, I think that's common and to be expected. Within different communities, there are different interests. They will see things differently. As we often see with modern treaties, including Nisga'a, there is the issue of overlapping claims. That is another First Nation saying, "Hey, you just negotiated for territory we consider ours.'' The same thing happened with the Nunavut agreement, for example. Some of these issues just come with the territory of treaty-making.
The question of two regimes of law is an issue for many people, not just some Nisga'a. Many non-Native Canadians are uncomfortable with that as well. I would just remind them and remind you in answer that the self-government arrangement within the Nisga'a treaty is with a number of qualifications or conditions. It's subject to the Criminal Code of Canada, and it's subject to the applicability of the Charter of Rights and Freedoms and eventually the application of tax law.
So there are limitations on First Nations self-government under Nisga'a. The three points I mentioned are pretty much an irreducible minimum for the federal government now when it negotiates self-government agreements or treaty arrangements in British Columbia. I put the question to a federal negotiator once privately: "Is the bottom line that Canada won't settle without agreement on that?'' His answer was yes.
Senator Patterson: Professor Miller, you make a very compelling case that treaty-making, at least in part, was about giving the Crown access to resources, beginning with the fur trade and then, as you outlined, gold in Treaty 8; minerals in Treaty 9; and oil in Treaty 11, where you said the Crown had been opportunistic and self-centred after oil was discovered in Norman Wells. Then there was oil in the Inuvialuit settlement and hydro with the James Bay in northern Quebec.
Today, we have serious conflicts over resource development in relation to pipelines, the Ring of Fire, fracking in New Brunswick, just to name a few projects that are on lands occupied by Aboriginal peoples.
As we look at resetting the relationship, is a new approach to resource development with Aboriginal peoples part of restoring a more balanced relationship between Aboriginal peoples and the Crown?
Mr. Miller: Yes, that's an essential component of re-establishing a relationship. There is consensus now, where there wasn't 20, 30 and 40 years ago, such that everybody understands there must be meaningful consultation and negotiation. You cannot just act in a unilateral way as the Government of Quebec and the James Bay corporation attempted to do in the early 1970s, especially since the Supreme Court of Canada promulgated the doctrine of duty to consult.
I think it's generally understood, at least in government and business levels, those elite levels if nowhere else, that you must have meaningful consultation. I think that will have to be part of any effective and harmonious relationship in the future.
Senator Patterson: I've been interested in some modern, comprehensive treaties where Aboriginal peoples have been given a guaranteed share of resource revenues. I'm thinking of the Nunavut final agreement. Of course, that also recently occurred in the devolution framework for the Northwest Territories, where Aboriginal First Nations were given a share of the Crown take of resource revenues, including the Inuvialuit.
You also had, in some of the modern treaties, Aboriginal peoples being given a guaranteed role in the regulation of projects, the review of projects. Do you have any comments about this notion of a guaranteed share of resource revenues and a voice in approving developments or establishing conditions for developments as another element for resetting the relationship with regard to resource development?
Mr. Miller: As a preliminary comment, senator, I would point out that seeking a share of resource revenues is a long-standing objective of First Nations negotiators. Way back in the late 1840s, leading to the Robinson Treaties of 1850, Chief Shingwaukonse, the Chief of Garden River First Nation, was seeking revenues, a share of the resources from mining that was going to happen on the lands that they negotiated over in 1850. So it's a very long-standing objective.
I think there are two compelling arguments for agreeing to some sort of resource revenue-sharing. First is simply the fairness argument that I think everybody can recognize, that it was originally indigenous lands and the fair thing to do is to share the fruits of the development of those lands.
The other argument is equally compelling, and that is the capacity-building argument. We're dealing with communities who are very often amongst the least advantaged in the country, and if we can assist them through provision of greater revenues to change those circumstances through education and other means, then I think that is for the benefit of them, certainly, and for the country as a whole. I think there are two arguments for it.
The Chair: Professor Miller, I was intrigued by your last comment about the Chief of Garden River asking for a share of the resources as long ago as the 1850s. Then I'm thinking about the oral history with regard to treaty-making and how one can access what the oral accounts were because they were oral. In this case, was there a written record of what this chief said? Are there other ways of accessing the oral histories, such as the treaty elders in Saskatchewan? Perhaps you could fill in a little bit with regard to the interpretation and what oral history has recorded with regard to what the treaties actually meant.
Mr. Miller: There are several sources for the oral histories of the treaties. For example, in the case of Treaty 6 in 1876, two of the Cree chiefs, Mistawasis and Ahtukukoop — elderly, highly respected, influential leaders — were rather prescient. They hired their own interpreter, a Metis man named Peter Erasmus. Before the negotiations actually began, the First Nations leadership caucused, and Peter Erasmus was there. He attended. They caucused because they could not agree. Some didn't want to make the treaty at all. They argued it out and came to a consensus.
The point is that Erasmus eventually published his memoir, Buffalo Days and Nights. In that volume was a wonderful account of what was said by who in that caucus at Fort Carlton leading up to the first part of Treaty 6. So that's one source.
Another source, as you alluded to, senator, is the fact that some First Nations organizations, including the then Federation of Saskatchewan Indians, collected accounts from elders, particularly in the 1970s. In the 1990s, the office of the treaty commissioner sponsored a research project by the late Harold Cardinal and Walter Hildebrandt, where they collected a fair bit of oral history.
Another one was the Blood Nation in Alberta who cooperated with a couple of historians, Sarah Carter and Walter Hildebrandt, and they produced a book about the meaning and intent of Treaty 7 based largely on oral history. The collection of oral history is really an ongoing process. It continues today.
In some quarters, the reliability of oral history is controversial, but there are rules about how it is collected, preserved and transmitted, and they are designed to preserve its integrity and reliability. I think where those rules have been observed, it is a very credible source, sufficiently credible that the Supreme Court said in 1997 that oral accounts have to be considered; they cannot just be disregarded as hearsay.
Senator Sinclair: Recognizing that the treaty process since Confederation to this point in time has been marked by, among other things, failure on the part of the government to implement its obligations, perhaps more particularly in the modern era, I wonder if you have an idea in mind about a treaty-making process that would result in a stronger monitoring in implementation element than has been in existence in Canada. Is there a model for such a process anywhere in the world that you can point to that this committee might take a look at?
Mr. Miller: I don't know of any such monitoring body. That does not mean it does not exist. I don't claim to know all the arrangements in all the various countries.
I think governments of Canada, any political stripe, would be very reluctant to give that monitoring responsibility away because, as I've said a couple of times now, they are the ones that have the political responsibility. At the end of the day, making these agreements is a political activity. They are going to bear the responsibility. I think, understandably, they're going to retain control of it. As a believer in parliamentary democracy, I don't have any problem with that personally.
Senator Sinclair: You've talked a great deal about the treaty-making process among First Nations. I wonder if you have any comment with regard to the treaty-making process involving Metis and Inuit.
Mr. Miller: The Inuit case is, of course, best captured in the Nunavut agreement where they achieved a fair measure of what they sought. They demonstrated very effective leadership, both in getting to the point of negotiations and in carrying out the negotiations. I don't really know much about Inuit and treaties beyond that, so I won't comment any further.
In the case of the Metis, they were involved in some of the treaties. Treaty 3, for example, the North-West Angle Treaty in northwest Ontario, Metis were present. First Nation leaders wanted them to be included in Treaty 3. In Treaty 4 and I think Treaty 8, if I remember correctly, the Government of Canada always said, "No, we only negotiate with First Nations.''
As a compromise, the government would then give the people who were viewed as Metis the option of opting into treaty and being regarded by government as First Nation and collecting annuities, or remaining out of treaty and still being regarded as Metis.
Metis, I think, had been to this point struggling to get recognition in the Constitution. Of course, in the recent case, they have achieved recognition to be included in section 91(24). I would anticipate they will now move to more specific applications of that right, and that would probably include making treaties.
As I said in answer to a question when I was here before, I think their most pressing need is some form of land base, of course. I would anticipate that will be a strong emphasis from the Métis National Council. Whether they would seek to achieve that within the framework of a treaty or by some other mechanism, I couldn't predict.
Senator Sinclair: Thank you.
Senator Christmas: Professor Miller, if you had the opportunity to advise or counsel the Prime Minister, the Minister of Indigenous Affairs or the Minister of Justice about the future of the Crown and indigenous people in this country, what would you tell them?
Mr. Miller: I would tell them, as the TRC has said, that really, at the end of the day, it's all about respect, and I would add it's all about the relationship. I agree with the First Nations leaders who negotiated so many of the treaties, including the numbered treaties: What really matters is the relationship.
If you have a strong relationship and, within that relationship, relations of mutual respect, then I think you can solve the problems that will inevitably arise, in any kind of relationship, for that matter.
The current government has said it supports dealing with indigenous peoples on a nation-to-nation basis. It has articulated that. I don't think it's being unduly critical to say we haven't seen it operationalized very effectively to date, but I would hope that it will become so.
Senator Christmas: Thank you.
Senator Pate: Professor Miller, one of the things you've recommended — and you said it today a number of times — is that your work and research has emphasized the link between relationship and the fact that the parties must be negotiating from a position of respect. I'm putting to you that it sounds like you're saying that if that respect doesn't exist, there's great difficulty, regardless of the role of a parliamentary democracy in doing that.
In light of that and given some of the attitudes that have been expressed most recently in the Senate by Senator Beyak and others about the historical relationship and the ongoing relationship, I'm curious as to whether you believe nation-to-nation discussions can continue without that prerequisite of authentic understanding of the need for such respectful dialogue, authentic understanding of the historical wrongs, and whether a refusal to acknowledge the extent of those wrongs in the past creates a situation where out of necessity we have difficulty engaging in good-faith negotiations and good-faith nation-to-nation discussions.
Mr. Miller: Without respectful relations, I don't think we can have a healthy relationship in the future. I think, as is implied in your question, knowledge of all the factors involved, including the background, is absolutely essential to building and maintaining that respectful relationship.
In that regard, I will come back to something I said in my previous visit — and I warned you this is what you get if you ask an academic a question — that education is extremely important. It's hardly an original idea on my part, and we all recognize that, but it is essential.
Let me go beyond that and say that we academics, especially academic historians, have to take a lot of the blame for the fact that the Canadian public does not know the history as well as it should. We have not been effective in conveying to a broader public what we know in the academy about the history of the relationship. There has been a breakdown in the dissemination of the knowledge that has been accumulated and circulated in the academy for about 30 to 35 years now, and we have to bear some responsibility. As a humble academic, I would ask you to help us build on that educational endeavour, please.
Senator Pate: Thank you very much. Clearly we wouldn't be having nation-to-nation discussions even at this level, at this committee, if everything was fine.
Senator Sinclair: There's a question in there somewhere.
Mr. Miller: I can only say I agree with you, senator.
Senator Pate: Thank you.
Senator Tannas: I totally agree that we have to get to recognition before we can move forward, before we can get to reconciliation. Remediation, catching everybody up — all of those things I think have to happen, but we have to start with an agreed set of facts.
We're starting to see in all areas of society where facts change to suit the sensibilities of the time. You've spent your career immersed in this history. Are you starting to see facts morph? Have we got an agreed set of facts that we could come to, that we could teach our children, that we could make as the basis of what is the most — and I said this when I ran for this job — the most important issue of our time? Have we got an agreed set of facts that can be assembled that will erase some of the narratives that make everybody suspicious and upset?
Mr. Miller: You've put your finger on a real challenge in conducting healthy relationships, not just between indigenous and non-indigenous people but various sectors of the community.
Mr. Justice Ian Binnie, in his majority opinion in the Marshall decision, dismissed academic historians, among others, and said the court couldn't sit around waiting for the emergence of a stable historical consensus about the situation involving the Mi'kmaq and harvesting rights. It's rather ironic, since the court had to issue another ruling a few months later suggesting they had a hard time reaching a stable judicial consensus, for that matter.
It's a real factor. The facts don't change, but of course people's interpretations of the facts are varied, and I don't think you want to stifle that at all. It's essential to a democratic society that there be a free exchange of those ideas, including ideas about interpretation.
I think the notion that treaties are important and permanent is generally accepted now. Once upon a time, you would hear suggestions that they be swept away. I don't think that is a very widespread view at all anymore, because people recognize there's section 35, for example; you're not going to do that. People recognize it has been attempted and failed, so why go there again?
I think in some areas there is emerging consensus. One of the things that bothers me a little bit is that that consensus tends to be amongst elites in society. I'm thinking of political bureaucratic elites, academic groups, business leaders. B.C. would be a very good example of how a consensus emerged that eventually included major business corporations about how to deal with First Nations in that province. But it's not always the case that that consensus has reached a broader public as well. Here again, I think academics have to take their share of the blame or responsibility for that.
As an academic, I've been seriously unsettled by the events of the last six, eight months regarding our neighbour to the south, where you get an attack on elites. Under the previous federal government of Canada, I was greatly disturbed by attacks on knowledge and on investigation, for example. I think it is a real issue in the 21st century, in Western democracies, about whether we will continue to have that consensus or whether so-called populism will overturn that kind of leadership.
Canadian political culture has been one strongly marked by deference in the past. I think there's some evidence that deference is eroding. You can applaud it. There are arguments for lessening the deference to authority and to elite opinion, but elite opinion is usually informed opinion. I think there's a danger in eroding the support for informed opinion.
I'm not sure where what I'm saying takes us, but I'm just unburdening myself a little bit.
Senator Tannas: Happy to oblige. Thank you.
Senator Raine: I wonder if you could give us a bit of background on the history of the use of tobacco in ceremonies. Today we have a situation where there's a lot of conflict between the government's regulation of cigarettes and tobacco and First Nation use of tobacco and selling tobacco. Is there historical insight you could give us that might help us to come to some understanding of rights regarding the use of tobacco in trade?
Mr. Miller: To employ a perhaps not completely appropriate analogy, tobacco to First Nations is sort of like a sacrament to Christians. It is absolutely essential. It has a powerful spiritual meaning and utility. The use of tobacco, either as a gift or throwing it on the fire or smoking in the pipe before you negotiate when you're making kin of people, goes back before Europeans arrived in North America. It has always been absolutely essential.
A major part of the rationale behind it, anthropologists tell us, is that the smoke that ascends metaphorically reaches the Creator, the deity, and involves the deity in what human beings are doing on the ground, in the world below. It is an extremely important and absolutely vital spiritual ceremony, and it's found everywhere in the northern part of North America, even where no tobacco is grown. The trade in tobacco was always extensive, before Europeans ever turned up, for example, so widespread was its use.
Senator Patterson: Professor Miller, I'd like to ask you about the pre-1975 treaties, knowing that you've written about this in your book Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada. You noted that there were numerous problems with how the pre-1975 treaties were implemented. Then in 1973, the specific claims process was established by the federal government to deal with those past grievances.
As we look at resetting the relationship, how is that specific claims process working now? What remedies are available now to deal with the implementation of the pre-1975 treaties?
Mr. Miller: I think the short answer, senator, is that it's working very slowly and inadequately. It's certainly better than not having it at all.
In fairness, it should be pointed out that on at least two occasions governments have attempted to fine-tune and to reform and improve the specific claims-resolution process. It happened under the Mulroney government in the early 1990s as part of the government's response to the Oka Crisis of 1990, for example. It happened later when a specific claims tribunal was created to serve as a sort of appeal body for negative decisions by the specific claims branch. I think efforts have been made to improve it.
I think we're dealing in part with a mandate issue, if government would give these bodies more latitude to make settlements and fewer restrictions, and in part, as we always do in a democratic society, with the resource question. It's partly a question of being concerned about the efficient and fair distribution of financial resources.
Senator Patterson: Thank you for that, professor.
I'd like to ask you to turn to the comprehensive land claims agreements and four self-government agreements that have been negotiated since 1973. You mentioned the slow progress and the slow process in implementing these comprehensive claims.
I'm wondering if you would have any comments about the implementation of these modern comprehensive claims agreements and the self-government agreements. How could the concerns that you've noted be better addressed?
Mr. Miller: Apart from the treaties I mentioned — James Bay, Northern Quebec, Nunavut, Nisga'a, for example — all of the comprehensive claims settlements, that is, all of that type of modern treaty, all take place in the territorial North. It's not a coincidence that they happen there. They take place in the territorial North because, of course, there the federal Crown has complete control over Crown lands and natural resources. There is no province with provincial jurisdiction over Crown lands and natural resources. This comes back to the point that Senator Raine was making earlier in relation to B.C.
Provincial control of Crown lands and natural resources has always been a complicating and a slowing factor in the resolution of Aboriginal title claims. That is why there has been a British Columbia land question, as it was called for a long time, from the 1880s to the creation of the BCTC in 1992, because the federal government and the provincial government, in the British Columbia case, could never agree on how much land to allocate for First Nations claimants.
The terms of union in B.C., just to indulge in a little arcane history, said that the federal government would have responsibility for what we would say are First Nations matters today, but the province was obligated to provide Crown lands to enable the federal government to carry out those responsibilities. That set off an unending dispute, an ongoing kind of low-grade guerilla war, between the two levels in British Columbia.
That complication doesn't exist in the territorial North, but anywhere else that you want to create a comprehensive claims settlement, you're going to run up against that.
We do have to consider the possibility of territorial treaties or comprehensive claim settlements in Atlantic Canada, for example, because there what you have are peace and friendship treaties only. That is true in parts of northern Quebec as well. So it's an issue that is going to crop up over and over again.
The historical precedents for this are not encouraging. After B.C., the clearest example from our past is northern Ontario. In the lead-up to the Treaty 9 negotiations, you had a series of intense negotiations between Ottawa and Queen's Park in Toronto, because Ontario had to be involved in that treaty. Time after time, Queen's Park would not cooperate or agree to participate in what became Treaty 9 negotiations unless Ottawa agreed to their terms. Time after time, Ottawa conceded. It was the only way to move forward. It's a very clear, unsettling example of the complications that arise.
I do not see any way around it in a federal state with the Constitution we have. It's just part of the territory. If we can build a wide-ranging consensus that settling these disputes matters, then I think provincial governments are more likely to be moved to agree. The two levels of government are more likely to be moved to agree to terms and move on from this. But it's an unavoidable complication in a country such as Canada.
Senator Enverga: I was thinking about the oral history you mentioned earlier today, passing from one person to another. Have you seen any variations of the history itself? Have you seen that the oral history changes as time goes by, or is it all written by now?
Mr. Miller: No, sometimes it does change in detail. There are examples of that. This is one of the points often advanced in criticizing oral history. As well, though, it's important to recognize that the central portions of it, the essentials of the record that are required, don't change. They are unvarying.
I mentioned briefly in answer before about oral history that there are protocols to preserve integrity and reliability. Certain people are chosen to be the carriers of this and are taught the oral histories. They are the people who transmit it to subsequent generations. They are very carefully recruited and selected for the task in First Nation communities. So I think they work very hard to preserve the reliability of oral history. But, yes, there are sometimes variations.
Senator Enverga: Have these oral histories ever been used in a court of law?
Mr. Miller: They have certainly been introduced. Ever since the Delgamuukw decision in 1977, the courts have had to consider oral history. They have not always been persuaded, shall we say, about it. Even sometimes when the oral history is backed up with documentation, they are not always persuaded.
The example I have in mind when I say that is the tax-related matter in Treaty 8 known as the Benoit decision. In Treaty 8, you had both the oral accounts from the First Nation that they were to be exempt from compulsory military service and tax forever. The treaty commissioners left behind a memorandum that confirmed they had agreed to that. Nonetheless, the Supreme Court of Canada in Benoit found against the First Nation.
I have to admit that I have never found the time to read the Benoit decision. I don't know precisely why. Perhaps Senator Sinclair will know the answer to that. That's the clearest example I know of where oral history was considered, but rejected, even though it seemed to be buttressed by other evidence as well.
The Chair: That concludes our questioning of our witness this morning. Thank you for all the questions, senators.
Professor Miller, on behalf of the committee, I want to thank you once again for doing an exemplary job of public service by coming here twice and answering so many questions. We thank you very much. You provided with us a wealth of information this morning that will certainly inform our study as we move forward.
(The committee continued in camera.)