The Indigenous Practice Group (“IPG“) at Foglers proudly represents a considerable number of First Nations across Canada on a vast array of matters from economic development, to practicing inherent jurisdiction, rights litigation, child welfare, wills and estates, real estate, governance, negotiations and more. Every department at Foglers interacts at some point with IPG clients.
In 2016, Ontario passed the first legislation of its kind in Canada declaring the first full week of November as Treaties Recognition Week. This year, Treaties Recognition Week is November 3-9, 2024.
This annual event honours the importance of Treaties and helps residents of Ontario learn more about Treaty rights and relationships between Ontarians and Indigenous communities and individuals. By learning more about our collective Treaty rights and obligations, we can create greater understanding and nurture relationships between Indigenous and non-Indigenous peoples. The week was launched in response to the Truth and Reconciliation Commission’s Calls to Action to increase Treaty awareness and provide students and the public with an important opportunity to learn why Treaties matter.1
What are Treaties?
Treaties are formal legally binding agreements between sovereign nations. Each Treaty contains ongoing obligations and rights and are not transactional. The Canadian government enters into Treaties on a continual basis. They have Treaties on such diverse topics as tax relations, free trade and human rights. Treaties between the Crown and Indigenous Nations are the same as Treaties between Canada and other countries.
We are all Treaty People. What does that mean?
Just as all Canadians are bound by the trade terms of the CUSMA2 trade agreement, so too we are bound by the terms of the Treaties with Indigenous Nations.
Each Treaty signed by a Chief and the Crown’s representative promises certain rights to each side in exchange for an obligation. The 20th century saw the Crown’s deliberate denial of their Treaty obligations but thankfully through the persistence of Indigenous Nations and the resurgence of Indigenous inherent jurisdiction is forcing the forgotten promises to the forefront.
Treaties fall into three categories:
- Peace and Friendship Treaties (1700s)
- Numbered Treaties (late 1800s- early 1900s)
- Modern Treaties (1975-)
Treaties are recorded in several ways
Indigenous:
- Oral retelling of the Treaty
- Wampum belts
Crown:
- Written documents
- Medallions
Treaties can be as simple as a couple of lines to complex multi-page documents formally written by the Crown. The Royal Proclamation is one of Canada’s foundational Treaties.3 Written Treaties often included language unfamiliar to the Indigenous signatories and often with terms not agreed to.
Peace and Friendship Treaties of the 1700s established peaceful trading relations, which honoured the sovereignty of each Nation. The Crown started to view Treaties as a tool for colonization and settling lands which we see in the Numbered Treaties. However, the Indigenous counterparts remained committed to the sacred and peaceful relationship earlier established. Treaty First Nations reject and condemn the argument that their Treaties are ‘surrender’ documents.4
Canadian courts have emphasized that Treaties are not simple one-time transactions—they are living documents. Ontario (Attorney General) v. Restoule, 2024 SCC 27 is one of the most significant Treaty cases. The Court found the Crown is obligated to diligently fulfill Treaty promises. In doing so, it must act with integrity and avoid sharp dealing.5 Stay tuned for more Treaty information throughout the week. If you have questions about Treaties or working with Indigenous clients, please reach out to a member of the IPG: we are always happy to help!
____________
1 Ontario, “Treaties Recognition Week” online: https://www.ontario.ca/page/treaties-recognition-week
2Canada-United States-Mexico Agreement (CUSMA), online: https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cusma-aceum/index.aspx?lang=eng.
3 Canada, “Royal Proclamation of 1763: Relationships, Rights and Treaties-Poster”, online: https://www.rcaanc-cirnac.gc.ca/eng/1379594359150/1607905375821
4 Bruce McIvor, “What are Treaties” (12 October 2022) First Peoples Law, online: https://www.firstpeopleslaw.com/public-education/indigenous-rights-in-one-minute/what-are-treaties 5Ontario (Attorney General) v. Restoule, 2024 SCC 27
