Canada – Treaty Implementation

In Canada, the colonization project was well underway by the time of the Numbered Treaties. By the 1870s, Indigenous nations had already been dealing with European explorers, missionaries, traders and government officials for more than 150 years. First Nations entered treaty negotiations with the Crown with experience garnered from negotiating treaties with other Indigenous nations, and negotiating trade agreements with the Hudson’s Bay Company (HBC). The Crown had also been dealing with Indigenous nations in North America (and other colonies) for hundreds of years and had a long history of negotiated agreements. While initial agreements were peace and friendship treaties, the Royal Proclamation of 1763 shifted the focus to land cession treaties, which became a policy requirement of colonial expansion.

Beginning in 1871, Treaty 1 promised a new phase—a new kind of relationship—between Her Majesty the Queen and, initially, the “Chippewa and Swampy Cree Indians of Manitoba” (or more correctly, the Anishinaabe and Nehiyaw peoples). The Numbered Treaties, as they have come to be called, went beyond the “peace and friendship” treaties of earlier years and defined a means to peacefully share land and resources with the anticipated droves of settlers.^{Footnote 1} While the Crown continues to describe these treaties as “simple land cession treaties,” even the most cursory reading of the text of Treaty 1 reveals a vision for an enduring relationship.^{Footnote 2} Treaty Nations expected to continue their traditional ways but, moreover, expected to participate in a rapidly changing economy.^{Footnote 3} These provisions included (at the very least) access to traditional hunting and fishing grounds, farming implements, and livestock for each community, and annuities that, at the time of signing, far exceeded the mere symbolic payments of today.^{Footnote 4} Of key importance to this analysis is the Treaty 1 per capita land allotment of 160-acres per family of five, leading to a protracted legal conflict placing the Honour of the Crown in serious question.

Sadly, the negotiation of the Numbered Treaties was a high-water mark of sorts in Crown-Aboriginal relations. While First Nations have consistently asserted that the written texts of the Numbered Treaties failed to accurately record the negotiations, yielding grossly exaggerated terms favouring the Crown, even then, the Crown neglected to adhere to its own rendition of the terms, and essentially nullified the treaties.^{Footnote 5} Throughout the late 1800s and in the decades that followed, while First Nations continued to negotiate treaties in good faith, the Crown was concurrently enacting legislation to effectively displace the treaties with oppressive legislation.^{Footnote 6} Instead of fostering respect for a shared existence that allowed each Nation to prosper, prejudicial terms for Aboriginal-Crown relations found expression in the Gradual Civilization Act,^{Footnote 7} the Indian Act,^{Footnote 8} the Natural Resource Transfer Acts,^{Footnote 9} and the Canada-Ontario Welfare Services Agreement, ^{Footnote 10} to name just a few, effecting the Crown’s vision for the dehumanization, dispossession, and destruction of First Nations peoples.^{Footnote 11}

Inarguably, grave injustices have resulted from the Crown’s decision to depart from the Treaty relationship, but two themes are of particular interest herein. First, the abuses exacted on Aboriginal peoples were then, as they continue to be now, brought about through the unilateral exercise of state power, and more specifically, through policy and legislation that defy solemn nation-to-nation relationships and fiduciary obligations established through treaties.^{Footnote 12} Second, these ‘legal’ exercises of power have brought immeasurable damage to Indigenous individuals and their nations.^{Footnote 13} Indigenous peoples in Canada, not unlike other colonized peoples, consistently rank well behind their non-Aboriginal counterparts in every indicator of socio-economic well-being.^{Footnote 14} This is no accident. Legislation was explicitly intended to disadvantage and destroy First Nations’ cultures, identities, governments, and economic vitality and, consequently, continues to devastate the individual and national lives of its target.

In Canada, the cumulative effect on the socio-economic well-being of First Nations peoples of more than a century of repressive legislation is slowly being acknowledged and addressed by the Canadian government and others.^{Footnote 15} However, no real change to the status quo can come about until the unilateral application of state power over Treaty Nations is ended. When Aboriginal and Treaty rights were notionally entrenched as sections 25 and 35 of Canada’s Constitution Act, 1982,^{Footnote 16} it was hoped that a page was turned in Aboriginal-Crown relations.^{Footnote 17} In doing so, the Crown embarked on what appears will be a very long journey to establish respectful relationships, one that for many Aboriginal peoples points directly at the need for full implementation of the spirit and intent of the Numbered Treaties. Nevertheless, the Crown, bolstered by the Courts’ indiscriminate acceptance of its assumed sovereignty, continues to exercise the right to define Aboriginal and Treaty rights according to its own purposes, thereby missing the entire intention of the treaties. Where meaningful treaty implementation is absent, there can be no peace between the two parties. An examination of New Zealand’s treaty history demonstrates that it is possible to turn a page in Indigenous-Crown relations: the status of their treaty has been transformed from legal nullity to quasi-constitutional, and settlements have been negotiated to facilitate restitution (including considerations of the return of traditional lands).

New Zealand – Treaty Implementation

The Treaty of Waitangi, New Zealand’s foundational document, was signed in 1840, between Britain and “Chiefs of the Confederation of the United Tribes of New Zealand.”^{Footnote 18} By this time, Britain had already recognized the sovereignty of Aotearoa (or New Zealand as they later called it), as established through a Declaration of Independence and its flag under maritime law, and reflected in statements of the British Colonial office.^{Footnote 19} For Lieutenant-Governor Hobson, the Treaty ushered in “British sovereignty over all of New Zealand: over the North Island on the basis of cession…and over the southern island by right of discovery.”^{Footnote 20} This proclamation defied the fact that Māori Chiefs from the South Island had also signed the Treaty and, moreover, that the Māori text of the treaty ceded neither sovereignty nor territory.^{Footnote 21} In the decade that followed, the Treaty appeared to have little meaning for British plans for colonization, which were carried out through unprovoked military actions and “legal” land seizures of Māori territory.^{Footnote 22}

Only a few short decades after the signing of the Treaty of Waitangi, its legal importance was forgotten by all but the Māori, who trusted in its promises and protection. By 1877, in a Māori land claims case, Supreme Court Chief Justice Prendergast declared the “alleged treaty…if it ever existed, was a legal nullity,”^{Footnote 23} rationalizing his position with the myth that “the aborigines were found without any kind of civil government, or any settled system of law…[thus] incapable of performing the duties, and therefore of assuming the rights, of a civilised community.”^{Footnote 24} This landmark precedent would guide the Crown-Māori relationship for the next century, resulting in the systematic and unjust dispossession and oppression of Māori peoples. Prendergast used Canadian jurisprudence to support his determination: while the French (Canadians) enjoyed recognition of their own civil code, “in the case of primitive barbarians, the supreme executive government must acquit itself, as best it may, of its obligation to respect native property rights, and of necessity must be the sole arbiter of its own justice.”^{Footnote 25} The Crown monologue on Māori, and indeed all Aboriginal, rights quickly dispensed with any notion of a treaty relationship.

Despite this typical experience of British colonization and the Crown’s historic disregard for the Treaty of Waitangi, New Zealanders courageously embraced a paradigm shift.^{Footnote 26} In 1975, recognizing its legal, if not moral, obligation to uphold Treaty implementation, New Zealand took a different, and markedly bolder, approach to renewing and rebuilding the Treaty Crown-Māori relationship.^{Footnote 27} A number of factors contributed to this shift, not the least of which was the unyielding belief of Māori in the importance of the Treaty. The turning point in modern treaty interpretation came through the Treaty of Waitangi Act 1975, restoring the Treaty from “a simple nullity,” to a status nearing constitutional authority.

Further, the 1975 Act established the Waitangi Tribunal, a permanent commission of inquiry, whose main function is to inquire and make recommendations concerning “claims that Maoris are prejudicially affected by legislation, policy or acts or omissions of the Crown inconsistent with the Principles of the Treaty of Waitangi.”^{Footnote 28} The 1985 amendment^{Footnote 29} expanded these provisions to include inquiry into historic breaches, such as the illegal confiscations of Māori land by the Crown. Although Tribunal Report recommendations are (generally)^{Footnote 30} non-binding on Courts, the Act itself is binding,^{Footnote 31} and the Tribunal holds “exclusive authority to determine the meaning and effect of the Treaty as embodied in the [English and Māori] texts and to decide issues raised by the differences between them.”^{Footnote 32} This opportunity for substantive legal reparation, including the potential return of land and resources, held new hope for Māori revitalization.^{Footnote 33}

The “Principles” of the Treaty, which are of central interpretive value, came into focus in 1987, as the result of the challenge by the New Zealand Maori Council to the enactment of the State-Owned Enterprises Act 1986.^{Footnote 34} Facing severe national economic challenges, New Zealand introduced legislation requiring all State enterprises to become fiscally accountable; the “concept underlying the 1986 Act [was] that the directors operate the companies to make profits and without day-to-day Government interference.”^{Footnote 35} The legislation provoked swift response from the Maori Council, with Mr. Graham Latimer representing “all persons entitled to the protection of Article II of the Treaty of Waitangi”;^{Footnote 36} Māori applicants expressed concern that the Act allowed for alienation and sale of millions of hectares of Crown land and other natural resources, thus removing from consideration land for settlement purposes. The High Court noted the concern, which was also reflected in an interim report of the Tribunal, and the matter, despite the Solicitor-General’s opposition, was expedited to the Court of Appeal.^{Footnote 37}

In his submission to the Court of Appeal, the Solicitor General “stressed the inconvenient practical consequences that would flow from an interpretation in favour of added Māori protection.”^{Footnote 38} The court dismissed the Crown’s convenience argument stating, “it has now become obligatory on the Crown to evolve a system for exercising the powers under the [State Owned Enterprises] Act,”^{Footnote 39} requiring state exercise of power to be consistent with principles inherent in the Treaty.^{Footnote 40}

This renewed call to honour both Māori and Pākehā (non-Māori) perspectives is bolstered by the fact that the Treaty of Waitangi is a bilingual text. As opined by Court of Appeal Justice Cooke:

Consequently, interpretation has moved away from a strict textual reading of treaty terms. Subsequent jurisprudence, multiple Waitangi Tribunal reports, and numerous government initiatives continue to contribute to the development of treaty “principles” that more fully express the “spirit” of the treaty.

The principles inherent in the Treaty, as articulated by the Court of Appeal, “were the foundation for the future relationship between the Crown and the Māori race,”^{Footnote 42} and the need for clarification of those principles was “perhaps as important for the future of our country as any [case] that has come before a New Zealand Court.”^{Footnote 43} Ultimately, Justice Cooke reached two major conclusions: first, that the “principles of the Treaty of Waitangi override everything else in the State-Owned Enterprises Act…[and second] that those principles require the Pākehā and Māori Treaty partners to act towards each other reasonably and with the utmost good faith.”^{Footnote 44} The principles are dynamic and developing, to provide “an effective legal remedy by which grievous wrongs suffered by one of the Treaty partners in breach of the principles of the Treaty can be righted.”^{Footnote 45} This articulation of the purpose of the Principles underlines that the Treaty was a forward-looking document, intended to adapt and accommodate the needs and aspirations of both parties.

Notwithstanding the cumulative effects of legal, cultural, social, and economic oppression experienced by the Māori peoples, modern Treaty implementation has assisted in addressing some of the historic effects of systematic dispossession and discrimination, and opened new opportunities for a mutually respectful and beneficial relationship between Māori and Pākehā. In his closing remarks, Justice Cooke credits the legislature for enabling the Court to reach its conclusion, thus pointing to political will as the cornerstone of effective treaty implementation. As is demonstrated by the experiences of the Waikato Tainui discussed herein, the situation in New Zealand is by no means perfect, and its governments often lack political will and invoke sovereignty. As a nation, New Zealand nevertheless officially embraces the treaty as a quasi-constitutional document and has made tremendous advancements in implementation. Despite the overtures from Canadian governments, and the development of legal instruments to address treaty implementation, both process and political will in Canada remain well behind the example set by New Zealand.

The TLE Process – Manitoba, Canada

Under the 1997 Treaty Land Entitlement (TLE) framework agreement, the Province of Manitoba assumed the Crown’s constitutional obligation to fulfill treaty land allotment promises to 29 First Nations, pursuant to Treaties 1 through 6, Treaty 5 Adhesions, and Treaty 10. All of the Numbered Treaties included a per capita land allotment, which would form the basis of “reserve” land set apart for the exclusive use of the signatory bands.^{Footnote 46} Despite the renewed and repeated commitment to meet its obligations, in 2007, the 1.4 million acres of TLE transfers owed to these First Nations remained outstanding. Highlighted in the 2007 Speech from the Throne, the Government of Manitoba admitted that settlement was as an “economic necessity for First Nations,”^{Footnote 47} pointing to the need to “support a long-overdue major acceleration of TLE claims through a more decisive settlement process.”^{Footnote 48} It was clearly recognized by government that there remained a legal obligation to fulfill the treaty promises, but also that the breaches of the treaties had and continue to have a serious and significant impact on the well-being of those short-changed by the Crown.

In 2011, a Manitoba Government News Release claimed that approximately half of the claims were settled and reiterated that the TLE process “continues to be a provincial priority and … an important component in the future economic development plans of First Nations.”^{Footnote 49} Nevertheless, neither legal force nor moral imperative appears to have generated any sense of urgency for the Crown to resolve the remaining claims. This is evidenced by the fact that, as of May 2016, fifteen First Nations with TLE agreements were still owed over 200,000 hectares (nearly half a million acres) of land.^{Footnote 50} Worse, during 2013 and 2014, “only a 0.046-hectare plot has been converted to reserve land.”^{Footnote 51} With the election of a Progressive Conservative government in April 2016, the TLE Committee of Manitoba reported receiving a “vague and non-committal” response from the new government, when challenged to complete the TLE claims within a ten-year time frame.^{Footnote 52}

Notably, the Manitoba agreements, like all TLEs, are not new government initiatives designed to address the massive socio-economic disparity of Canada’s First Nations communities. Rather, the settlement agreements are redress owed to Treaty signatories, arising out of historic Crown breaches. Having met the burden of proof to support their claim before the Indian Claims Commission, First Nations negotiated TLE agreements, thereby creating a legal mechanism by which the Crown promises to fulfil its Treaty obligations. In the words of Federal Court Justice Douglas Campbell, “Canada promised to set aside a certain amount of land for [Treaty 1 Nations’] exclusive use. This promise created a Treaty right to land. The Aboriginal People kept their side of the bargain, but Canada did not.”^{Footnote 53} The TLE agreements are thus intended to be the fulfillment, not a replacement, of the original Crown-Aboriginal treaties. While Treaty 1 Nations were required to negotiate with the Crown to find an acceptable process for the Crown to meet its obligations, New Zealand was moving forwards with actual settlements. The difference in state response and political will is very apparent in the case of the Waikato-Tainui land reparations.

Fresh Injustices

Among those claiming a Treaty 1 right in land are Brokenhead First Nation, Long Plain First Nation, Pequis First Nation,^{Footnote 63} Roseau River Anishinabe First Nation, Sandy Bay Ojibway First Nation, and Swan Lake First Nation, collectively as Treaty 1 signatory nations. The Crown’s failure to fully implement the 1871 Treaty 1 per capita land allocations has most recently been frustrated by a series of government decisions concerning federal Crown land in the City of Winnipeg. At issue is approximately 160 acres (64 hectares) referred to as the “Kapyong Barracks,” which was designated “surplus” Crown land, following the transfer of the resident Canadian Forces troops to a new permanent home. Despite the fact that this parcel of land appeared to fit the criteria that would enable the Crown to make some progress on meeting its TLE obligations, the Crown instead made unilateral policy changes that effectively eliminated all possibility for Treaty 1 First Nations to purchase the land.

The economic potential of the barracks land remains considerable, given its proximity to two affluent neighbourhoods and zoning that allows for commercial development. In order to restrict the disposal of the Kapyong land, the government created the new designation of “strategic” land, which would “optimize the financial and community value of strategic government surplus properties through effective planning, including rezoning and site servicing for property development, so as to achieve the highest and best use of the land.”^{Footnote 64} This designation had already been successfully used to convert other abandoned military lands into premier “legacy” neighbourhoods in Edmonton, Calgary, and Chilliwack. Clearly, the Government of Canada envisioned this “highest” and “best” use of the land to automatically exclude ownership for development by Treaty 1 First Nations.

As a result, the affected First Nations^{Footnote 65} initiated court action, seeking a declaration that the Crown was required to consult with them before excluding the parcel from TLE settlements. In the words of Federal Court Justice Campbell, “if the standard for meaningful consultation…is not met…the chain of legal dispute will not be broken, and disruption to the aspirations of Canada and the Applicant First Nations will continue.”^{Footnote 66} Since first filing an application for judicial review in January 2008, this legal contest has included no fewer than seven hearings, with the Crown failing to justify its actions at every level.

In his 2009 decision, Justice Campbell, affirmed that “Canada’s decision to act on the Treasury Board Directive [to remove Kapyong from the “surplus” listing] is unlawful and a failure to maintain the honour of the Crown.”^{Footnote 67} He further noted the record “establishes that from the beginning to the end of the decision-making with respect to the lands, it is clear that Canada had no intention to grant the First Nations any meaningful consultation.”^{Footnote 68} In what has become the standard for dealing with Aboriginal peoples, and despite the clear duty upon the Crown to consult with First Nations, the Government responded by filing an appeal to the Campbell decision. This response is in clear contradiction to Crown promises to respect constitutionally entrenched treaty rights and the Crown’s TLE obligations to rectify century-old Crown breaches of the treaties.

Thus, the matter proceeded to the Federal Court of Appeal, where Justice Marc Nadon found the reasons for the original order “rife with uncertainty and contradiction,”^{Footnote 69} and in the whole, “inadequate.”^{Footnote 70} Nadon JA found, among other things, that the decision left Canada “in the position of being ordered to consult, but being unsure with whom it must consult.”^{Footnote 71} He found that Justice Campbell “failed to adequately distinguish between the different circumstances of the respondents,”^{Footnote 72} and “it was an error on the Judge’s part to fail to seriously consider Canada’s alternative argument that its duty to consult had been fulfilled.”^{Footnote 73} Finding “the Judge failed to seize the substance of the critical issues before him,”^{Footnote 74} Nadon JA ordered that the matter be referred back to the Federal Court, explicitly excluding Justice Campbell as a potential adjudicator, and despite his many criticisms aimed almost exclusively at the trial judge, awarded costs to the Crown.

Carefully working through the concerns raised by Nadon JA, in December 2012, Federal Court Justice Roger T. Hughes released his comprehensive decision concerning the Crown’s duty to consult the affected First Nations. In his reasons, Hughes adopted verbatim nearly half of the Campbell J (Federal Court) decision, and added substantial detail to affirm the original finding that “Canada has failed to fulfil the scope of its duty to consult with the Applicants.”^{Footnote 75} On this point, Justice Hughes was unequivocal: Canada, despite conceding it has a duty to consult,^{Footnote 76} “[e]ven at a minimal level…did not fulfil its obligations.”^{Footnote 77} Further, the “matter is more egregious in the 2006 to 2007 period. Canada simply ignored correspondence written by and on behalf of the Applicants.”^{Footnote 78}

The legal challenge to the Crown’s decisions regarding this land indeed “has an unhappy history,”^{Footnote 79} as Justice Hughes termed it. To emphasize this point, his order contained a request for submissions on costs, a signal to the Crown that the Court was displeased with the course of litigation. In 2013, a separate hearing was held as to costs, wherein Justice Hughes determined appropriate costs, based largely on the belligerent behaviour of the Crown: “Had that concession [regarding the prima facie duty of the Crown to consult] been made earlier, substantial effort and evidence could have been saved. The respondents failed to make full and candid disclosure of the documents relating to the decision at issue. This made the argument and decision difficult.”^{Footnote 80} Clearly, the warning issued earlier by Justice Campbell went unheeded. Quoting the Crown’s oral argument at length, Hughes noted this belligerence, wherein counsel boasted,

This “unhappy history” of Crown-Aboriginal relations is not unique, and sadly demonstrates the Canadian government’s interpretation of acting in accordance with the “Honour of the Crown.” Defined by the Court and constitutionally entrenched, the Crown’s duty to consult with Aboriginal peoples is only meaningful where persistence and financial resources support the legal challenge necessary to force the Crown to submit to its own law. When called to account for the lack of substantive reparation for breaching the treaty relationship, the Crown is both insolent and impotent in its response to meeting its obligations to Treaty 1 Nations. A settlement that would provide for the sale of the sixty-four-acre Kapyong land parcel to Treaty 1 Nations would go a long way towards a renewal of the treaty relationship. By way of contrast, this was the view taken by the New Zealand Crown in the Waikato-Tainui settlement.

Waikato-Tainui Injustice to Economic Development

The 1995 Waikato-Tainui Raupatu settlement was intended “to begin the process of healing and to enter a new age of co-operation.”^{Footnote 82} Beginning in 1995 with 170 million dollars in assets, by 2014 the Waikato Raupatu Lands Trust, acting as Tainui Group Holdings (TGH), surpassed one billion dollars in assets. After some difficult years of financial mismanagement, TGH developed a number of business projects that have yielded significant benefits to their membership. Since 2004, “53 percent of all dividends—the equivalent of $55 million—has been distributed back to [Waikato] people to support education, health, sports [and other cultural] events and programmes.”^{Footnote 83} The TGH investment portfolio quickly expanded to include industrial and agricultural land, forest and fishery interests, and the hotel and service industry. The “jewel of the settlement crown for Tainui,”^{Footnote 84} however, is Te Awa—The Base shopping complex on the outskirts of the City of Hamilton.

Te Awa—The Base takes its name from the “Te Rapa” land parcel, a former Air Force Base, vested to Waikato-Tainui as part of its 1995 settlement. By 1998, TGH plans were underway to redevelop the abandoned facilities into a major retail-shopping complex. Between 2004 and 2007, the multi-stage, multi-million dollar project was undertaken in partnership with a major retail chain, and “in accordance with four resource consents issued by the [City of Hamilton] Council.”^{Footnote 85} Moreover, development had proceeded in full compliance with the Hamilton City Proposed District Plan (HCPDP),^{Footnote 86} albeit not without resistance from Hamilton City Council and complaints from business owners of the central business district (CBD). In response, Council abruptly introduced Variation 21 as a means to halt, or at least slow, the draw of retail consumers away from the CBD businesses, the vast majority of which were established long before any Treaty settlements were contemplated.

It was the view of Hamilton City Council that the “liberal HCPDP rules (and particularly those directly affecting Te Awa—The Base) were undermining the sustainable and efficient operation of the Hamilton CBD.”^{Footnote 87} However, expert evidence put before the Environment Court in 2002 revealed, “there had already been substantial decline in retail in the CBD between 1997 and 2002 before retail activities at The Base commenced.”^{Footnote 88} Although expert witnesses for the Council suggested that Te Awa—The Base had the effect of drawing customers “away from the CBD and other suburban business centres,”^{Footnote 89} Council’s solution to declining consumer interest in Hamilton’s non-iwi owned businesses was to strengthen the HCPDP rules. Believing there was a “rapidly growing problem,”^{Footnote 90} Council introduced “Variation 21,”^{Footnote 91} creating new assessment criteria designed to “maintain the CBD as the principle retail and commercial hub of the city,”^{Footnote 92} and impose “greater restrictions on retail and office activity…[and] significantly greater discretion in respect of the future development of The Base.”^{Footnote 93} Council expressed its urgent concern over:

Moreover, Council intentionally excluded Waikato-Tainui (and TGH) from consultations, despite the fact that the proposed changes were almost exclusively targeted at preventing financial growth and future development of Te Awa—The Base. Council’s view was that notice “would be likely to result in the plaintiff making applications for protective resource consents…[and] would have allowed the plaintiff to secure its position under the pre-Variation 21 HCPDP rules in a manner which would largely defeat the purpose of Variation 21.”^{Footnote 95} This action would have allowed Council to pre-emptively eliminate the opportunity for Tainui to complete its development plans. The legislation would significantly impair Tainui’s ability to move forward financially, but more disturbing, it revealed that Council regarded Waikato-Tainui as an outside competitor, rather than an integral part of the Hamilton community.

In response, Waikato-Tainui challenged the legality of Variation 21, claiming Council breached Treaty of Waitangi Principles entrenched in the Resource Management Act. The Principles require, among other things, the Crown and its agents to consult with Māori authorities when the latter may be affected by changes in policy.^{Footnote 96} As the High Court saw it, the “crux of the issue is whether the Council should be able to prevent a party from preserving its rights and opportunities,”^{Footnote 97} thereby subordinating Tainui’s rights “to what Council regards as the greater public good.”^{Footnote 98} In assessing the impact of the Council’s decision on Tainui, the High Court noted the importance of Te Awa—The Base and “its importance as an asset that is able to further the goals and policies of Tainui by providing a future income stream for the tribe.”^{Footnote 99} The fact that Te Awa—The Base was “not formerly land of exceptional significance to Tainui”^{Footnote 100} was irrelevant, since it was the aspirations of Tainui that were jeopardized. The “new age of cooperation” envisioned in the settlement clearly required Hamilton City Council to consult, and at the earliest possible opportunity, in order to avoid “serious adverse effects.”^{Footnote 101} The High Court declared Variation 21 “unlawful, invalid and of no effect,”^{Footnote 102} thereby reinforcing the Principles of the Treaty. The court resoundingly reaffirmed that it was not the Treaty that was invalid, but instead declared the Crown’s wilful disregard for it to be unlawful and of no effect. The direction of the New Zealand High Court for government to act in accordance with both the letter and the spirit of the Treaty paved the way for Waikato-Tainui to move forward with rebuilding its economic base.

Rebuilding Amidst Dishonour

In both Canada and New Zealand, and indeed throughout the Commonwealth, courts have wrestled with interpreting historic treaties, doing their best to maintain the mirage of unmitigated Crown sovereignty, despite clear evidence that treaties were and continue to be agreements between sovereign nations. In doing so, the court promulgates an indisputable, indivisible Crown sovereignty, propped up by a historical justification myth designed to deny Indigenous sovereignty. This deliberate lack of political and legal will to engage in any discussion of multiple sovereigns effectively quashes any questioning of the assumed sovereignty of the Crown. Treaty 1 and the Treaty of Waitangi are two examples of treaties that emerged during nineteenth-century British colonial expansion. However, neither international nor domestic law can justify the colonial policy that degraded their importance as legal instruments. In Canada, while the validity of the Numbered Treaties is begrudgingly conceded, the Crown’s interpretation of them as simple land cession agreements remains. This view is simply fraudulent, the consequences of which continue to be devastating to First Nations. In contrast, New Zealand recognized that honouring the spirit and intent of their treaty is crucial to the future of Māori and Pākehā, and their success is inseparably linked. Until such time as the spirit and intent of the Numbered Treaties is implemented with seriousness and integrity, the Aboriginal–Crown relationship shall remain grounded in the dishonour of the Crown.

When Aboriginal–Crown treaty agreements were entered, they were intended to define a relationship, and both present and future dealings would be guided by the terms of these treaties.^{Footnote 103} As Joe Williams, High Court Justice and Former Chief Judge of the Māori Land Court explains:

At its core, the spirit and intent of Treaty 1 likewise set the terms of that relationship, envisioning a vibrant cultural, economic prosperity and independent political life for First Nations. Signatory nations negotiated “peace and good order,” by means of shared, not ceded, land with the Queen’s people. Moreover, assistance from the Queen’s “bounty and benevolence” promised to provide for the success of future generations of Indigenous nations, indeed “for as long as the sun shines and the waters flow.”^{Footnote 105} As Aimee Craft notes, this forward-looking vision is extremely significant, as “Anishinabe generally think of the impact of their actions in terms of future generations, often seven generations ahead.”^{Footnote 106} Craft goes on to question, “Is the treaty relationship we are living today that which our ancestors would have envisioned for us?”^{Footnote 107} Volumes of Indian Claims Commission Reports and government-commissioned Treaty Research Reports, as well as numerous scholars, have provided a robust response.^{Footnote 108}

Even relying solely on the government-recorded version of the treaty negotiations, the answer is a definitive “no.” During negotiations in July 1871, Lieutenant Governor Archibald stated, “Your Great Mother wishes the good of all races under her sway. She wishes her red children to be happy and contented. She wishes them to live in comfort.”^{Footnote 109} Indian Commissioner Simpson similarly followed with reassurances: “Her Majesty is perfectly willing and anxious to provide for the welfare of her Indian subjects…. The Government will give to the Indians, reserves amply sufficient. The different bands will get quantities of land as will be sufficient for their use in adopting the habits of the white man, should they choose.”^{Footnote 110} On this point there appears to be agreement that the proposed treaty relationship would continue to protect and benefit future generations of First Nations.^{Footnote 111}

This record reflects the skill of shrewd Cree and Anishinaabe negotiators, who held to a vision of a treaty grounded in a history of resilience, and who demonstrated an understanding of what was required to adapt and rebuild.^{Footnote 112} Treaty 1 First Nations negotiators demanded that Indigenous nations retain, for their sole use, reserves consisting of two-thirds of the landmass of the province, in addition to assistance with adapting to a new way of life in a post-buffalo economy.^{Footnote 113} Ultimately, compromises were made, with First Nations negotiators agreeing to share more land with settlers, in exchange for other concessions.

First Nations accepted Crown promises that made sense, given the pressures of dwindling food supplies and changing economic realities, a belief in Indigenous resiliency, and trust in the ability of Anishinaabe and Cree people to rebuild their once prosperous nations.^{Footnote 114} This vision for future prosperity included an educated, industrious, and healthy Indigenous population, free from governmental interference. First Nations would maintain access to, and a living from, shared lands, excluding only those lands taken up by farmers.^{Footnote 115} Thus, adapting to agriculture was viewed as a viable economic alternative to the previously bountiful buffalo economy and the lucrative fur trade.^{Footnote 116} Evidence shows that there was no agreement to limit the size of the reserves, as a promise was secured that more lands would be available as the First Nations population grew. Most importantly, there was no vision of poverty or dependency.^{Footnote 117}

Indian Claims Commission (ICC) reports document a long list of other Treaty terms, deemed “outside promises” that, while agreed to during treaty negotiations, never came to be recorded by government officials. The 2001 ICC Roseau River Claim report, for example, while dealing with health-care benefits, focuses on the outside promises that would secure the best and brightest future for the coming generations. Similarly, First Nations reliance on promises concerning education was a means to equalize their relationship with the settlers, and expand opportunity to compete with the traders, settlers, government officials, and missionaries who occupied and prospered in their territory. Treaty 1 promised an ample, and when necessary expanding, land base for agriculture, as well as training and resources to enable future economic participation and prosperity.^{Footnote 118}

However, given that treaty promises were never fulfilled, particularly those pertaining to per capita land allocations and agricultural economic opportunity, Treaty Nations now look towards modern means of securing this vision. This is a treaty right. Construing Treaty 1 to forcibly limit First Nations to a life of dependence and poverty, whose economic potential is limited to scraps of land relegated to them in 1871, supplemented with a symbolic annuity payment of a mere five dollars per person, is simply incomprehensible. Leaving aside the claim that reserves were to be expanded generationally, TLE settlements are at least one opportunity to empower Treaty Nations to take up lands in urban centres, thereby creating potential for economic participation and prosperity for future generations.

Numerous First Nations are already capitalizing on this potential, through the establishment of thriving economic ventures, either in urban reserves, or in the proximity of urban centres. For example, Membertou First Nation,^{Footnote 119} which is located on the periphery of the City of Sydney, Nova Scotia, began in the 1990s to develop an array of small owner-operator businesses, a major insurance company, a seafood processing company, an entertainment complex, and other major enterprises, including an international financial data storage centre.^{Footnote 120} Similarly, Muskeg Lake Cree Nation invested its 1993 TLE settlement into several urban reserves in the city of Saskatoon, which now includes two gas stations, three business office complexes, a holding company, a golf course, and a casino.^{Footnote 121} In 2005, Western Economic Diversification Canada reported that Muskeg Lake’s initial urban reserve “started with raw land and no infrastructure. Today, the asset value of the land, infrastructure and buildings is approximately $18 million.”^{Footnote 122} While there is no question as to the capacity of First Nations to economically thrive, it is also “obvious that this type of development and infrastructure could not occur on the parent reserve of the Muskeg Lake Cree Nation and continue to sustain itself due to its rural and isolated location.”^{Footnote 123} Cooperation with and participation in the larger economy is essential.

As these examples, and so many others, demonstrate, First Nations use urban reserves to facilitate economic growth and development. More importantly, they are using their economic successes to rebuild their nations politically, economically, and socially. Treaty settlements have been a key part of Indigenous economic success, not only in Canada, but even more so in New Zealand. Though only twenty years post-settlement, Waikato-Tainui has led this trend for other iwis in New Zealand. Profits from corporate operations under Tainui Group Holdings (TGH) continue to provide financial resources to rebuild in a modern economy. The benefits of Māori success have flowed to Māori and Pākehā alike.

It is crystal clear that urban reserves are having a tremendous economic, social, and political impact for the both Indigenous nations and settler societies. As noted by Evelyn Peters:

This outcome stands in stark contrast to the dishonourable Crown conduct in Winnipeg, where Kapyong holds enormous potential for Treaty 1 Nations. The legal and administrative costs associated with fighting Treaty 1 Nations over the proposed land acquisition have been staggering, and resulted in tremendous losses to both parties. Additionally, as of 2013, the Federal Government has spent nearly fifteen million dollars just to maintain the abandoned site.^{Footnote 125} As media coverage attests, “Kapyong is a symbol of sabotage” such that the Federal Government’s staunch refusal to act on its obligations to honour the spirit and the intent of Treaty 1 through the TLE settlement has also sabotaged race relations, economic prosperity, and political relations between First Nations and the state.^{Footnote 126} To date, no negotiated resolution has emerged, and the federal government is moving ahead with demolition plans of the Kapyong buildings.^{Footnote 127}

Roots of Resistance

In both Canada and New Zealand, courts have contended with treaty implementation and necessarily considered treaties within the purview of Crown claims to sovereignty. As a consequence, courts continue to uphold this underlying claim of an indisputable, indivisible Crown sovereignty, propped up by a historical justification myth. Peter Russell explains this myth as “legal magic” stemming from “a belief in the inherent inferiority of the Aboriginal peoples as peoples…[and] the bed-rock presumption of imperial rule.”^{Footnote 128} This “historically validated arrangement,” as Paul McHugh terms it, has infused the courts’ understanding of treaties, such that “the sovereignty of the Crown-in-Parliament was put beyond any historical explanation.”^{Footnote 129} This perspective invariably hobbles the Crown’s willingness to consider, let alone implement, the true spirit and intent of its historical treaties with Indigenous peoples. In contrast, Harold Cardinal suggested that “[for] Indians of Canada, the treaties represent an Indian Magna Carta,” and as Michael Asch points out, “Treaties, then, and not the constitution, are our charter of rights.”^{Footnote 130} The inability of the courts, and indeed Parliament, to recognize the mutually sovereign basis of treaty agreements, and their forward-looking applications, relegates them to an inferior rendition of their original intent, forcing courts to become increasingly creative in justifying the lack of implementation and honour accorded the treaties.

In New Zealand, reacting to the Te Paparahi o Te Raki (Wai 1040) Report, wherein the Tribunal has stated that the Treaty of Waitangi could not have effected the relinquishment of sovereignty of certain iwis, Prime Minister John Key was emphatic. The mere idea that the Crown’s sovereignty in New Zealand was anything but absolute came as an apparent surprise to the government. The slightest hint of Māori separatism provoked Key’s response: “It’s a very slippery slope, because you will get lots of people who will argue, when it’s convenient for them, that gives them unilateral decision-making rights in certain areas. I can’t see why New Zealanders would support that. I can’t see how it would help what is a vibrant, growing, multicultural New Zealand to succeed.”^{Footnote 131} Despite the fact that the state takes this privilege for granted, for Key, the mere suggestion that Māori could, or should, exercise self-determination according to their Treaty rights, was preposterous.

What is missed in this perspective is that treaties form a relationship between political equals. Asch states “while these [treaty] commitments were laid out, they were merely a tangible expression of a larger commitment to ensure that [First Nations] would benefit, not suffer, economically as a consequence of settlement.”^{Footnote 132} Similarly, in New Zealand, the “Treaty was thus the means whereby the risk of assimilation and indeed decimation might be minimized, while yet retaining the advantages of contact.”^{Footnote 133} This dynamic relationship, where continuous discussion and negotiation are essential, is not novel in Canadian or New Zealand jurisprudence.

The idea that treaties can and should be permeated with an inherent flexibility, able to develop and adapt, is essential. Both countries share a common constitutional lineage, one that dates back to the fields of Runnymede and the Magna Carta. While often viewed as the origin of the British Constitution, it is but one of many documents that have grown in meaning through ongoing interpretation. As Lord Sankey explained in his 1929 decision of the “Persons Case,” the Canadian constitution represents a “living tree capable of growth and expansion.”^{Footnote 134} This is the primary constitutional interpretive doctrine in Canada, which unsurprisingly coincides with Indigenous understandings of the spirit and the intent of the relationship that is established through treaty.^{Footnote 135} While Canada has yet to move beyond its self-serving understanding of both treaties and its Constitution, New Zealand has embraced the concept. In the “Lands Case,” the court found that the Treaty “should be interpreted widely and effectively as a living instrument taking account of the subsequent developments of international human rights norms; and that the court will not ascribe to Parliament an intention to permit conduct inconsistent with principles of the Treaty.”^{Footnote 136} Justice Cooke stated that the “Treaty has to be seen as an embryo rather than a fully developed and integrated set of ideas.”^{Footnote 137} In New Zealand, this constitutional embryo seeded a tree that, although still green and young, with nurturing will continue to flourish. In contrast, Canada’s constitutional tree lacks integrity, as a rootless body of law that has denied the necessity to connect through the treaties to the land it occupies.

For Canada’s treaties to develop within a flourishing constitutional tree requires a paradigm shift. In Canada the “lingering strength of this presumption of cultural superiority remains the major barrier in moving towards a truly post-colonial position for Indigenous peoples”^{Footnote 138} Failing this acknowledgement, treaty rights will continue to be interpreted by courts as benefits granted solely at the pleasure of the Crown. Alternatively, Asch urges the Canadian state to embrace the challenge to apply its own constitutional interpretive framework to treaties. By doing so, he argues, treaties can assume their proper legal importance:

This transformative potential, accepting that settlers meant what they said, then has great implications for the future prosperity of Indigenous nations in Canada. It is clear that self-determination and economic prosperity are inseparably linked. Given the resistance that Indigenous communities face, when attempting to take hold of the prosperity envisioned in the treaties, it is incumbent upon the Crown to will itself to act honourably. Canada’s constitutional tree can only offer protection and prosperity to settler and Indigenous nations alike when the Crown ceases pouring poison on its roots by denying the spirit and intent of the treaties.