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Treaties and Land Claims

What Was Required to Create a Historical Treaty?

March 7, 2024

First Peoples Law Report: Looking to get informed about Indigenous rights? Check out my latest “Indigenous Rights in One Minute” instalment on historical treaties. I hope you find it informative and helpful.  You can also read it on our website.

Best,  Bruce

What Was Required to Create a Historical Treaty?
A historical treaty between Indigenous Peoples and the Crown was created when each side intended to create legally binding obligations and their discussions were serious and dignified.
The Crown has a long history of denying the existence of historical treaties with Indigenous Peoples. With the change to the Indian Act in 1951 which removed the ban on First Nations hiring lawyers to defend their rights, Indigenous Peoples went to court to have their treaties recognized.
Their first major victory was the White and Bob British Columbia Court of Appeal decision in 1964. It confirmed the 1854 agreement between the Snuneymuxw and Governor Douglas of the Hudson’s Bay Company was a treaty and that the treaty rights still existed.
Later Supreme Court of Canada decisions further developed the law. Instead of relying on the international law of treaties, the Court developed its own principles based on a broad and liberal interpretation that wasn’t overly legalistic and considered the specific historical circumstances.
Over the objections of the Crown, the courts have confirmed the existence of various treaties including the Peace and Friendship Treaty of 1752 between the British and the Mi’kmaw (SimonMarshall) and a one paragraph letter signed by British General Murrary in 1760 (shortly after the Battle of Quebec) guaranteeing rights to the Huron-Wendat (Sioui).
Regrettably, even when First Nations win court decisions confirming the existence of their treaties with the Crown, they continue to struggle to have the Crown respect their treaty rights, e.g. Mi’kmaw commercial fishing rights under the Peace and Friendship Treaty of 1752 (Marshall).
Have a question about Indigenous rights? Submit your questions and stay tuned for more instalments in this series. 
Check out Bruce’s answers to previous questions.
Read this post on our website.