Trail to Tears: Concerning Modern Treaties in Northern Canada

IntroductionCanada has learned nothing from its history with indigenous peoples.1 The current historical moment involves a striking repetition of egregious past mistakes, in which the overall demands of capital accumulation underwrite a set of colonial policies whose ultimate impact is the dispossession and impoverishment of indigenous communities in northern Canada. This essay will substantiate the above contention through a look at the past twenty five years of comprehensive land claims (or modern treaty) negotiations, settlements and agreement implementations in the far north of Canada. The discussion will be prefaced with a few comments on the broad and immediate contexts of modem treaties, and by a few comments pertaining to a political theory oriented to explaining why things have changed so little.I write as a non-Aboriginal person who has devoted his full academic career to observing and understanding the contemporary historic moment of northern Canada, having spent more than three decades (from 1983 when I first visited to the Yukon, to 2015 when I spent time in both Nunavut and the Dehcho region of the NWT) in northern research with Dene and Inuit friends. I have spent relatively little time in the Yukon, extensive time with the Kashogotine (Fort Good Hope, NWT) and Begade Shuhtagotine (mountain Dene of the Keele River area, mostly based in Tulita, NWT) and extensive time in Pangnirtung, Nunavut. I have visited and spent time in many other NWT Dene/Metis and Nunavut Inuit communities. One of my research interests in these and other places has been to gain a community level sense of the impacts of broader policy changes, particularly through the negotiation, settlement and implementation of modern treaties.History and Theory as ContextIn a fundamental way, modem treaties are premised upon the same assumption as the post confederation historic treaties. Treaties 1 through 11 were -in the end - based on the notion that the Royal Proclamation of 1763 only granted indigenous prior occupants of land something called Aboriginal title that was seen as a burden on underlying crown title. Those treaties, only a few pages long, included a clause purporting to surrender or extinguish (though that word was not used) all rights, titles or interests to lands of a Treaty Nation signatory in exchange for a series of loosely defined promises to reserve lands, education, health care (in some cases), harvesting rights, monetary payments and agricultural or harvesting tools. The Treaty Nations involved have often asserted that the treaty promises, frequently made orally, were much stronger and would make those agreements much more relevant if they were respected. In the event, the agreements were not particularly well respected by the settler colonial signatories, and the numbered treaties became one sided: allowing settlement and resource extraction while the well being of Treaty Nations was seriously eroded.2In 1921, after Treaty 11, no further numbered treaties were signed in the north and west of Canada, and after the Williams Treaty of 1923 in Ontario no further treaties at all. Most of British Columbia, all of the Yukon, all of the territories occupied by Inuit, much of northern Quebec, and a few specific pockets of unsurrendered or unceded land were left with no access to the treaty process; in the NWT no reserves were set up in Treaty 8 and 11 territories. The Nisga'a Nation in northern B.C. decided to launch a decades long legal challenge culminating in the Calder case at the Supreme Court in Canada. In 1973 that court announced its decision: six of seven judges said Aboriginal title was a doctrine with legal force in Canada, they split evenly on whether the Nisga'a still held such title, and the case was narrowly lost over the technicality that the Nisga'a had not filed for a crown writ allowing them to pursue it. Justice Hall's dissenting opinion in the Calder case was a very strong call to respect Aboriginal title unless there was 'clear and plain' evidence - like an extinguishment clause - that such title had been surrendered. …

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