In the movie Casablanca, the slimy Ugarte said to Rick, “You despise me don’t you.”To which Rick responded, “If I gave you any thought I probably would.”Robert MacBain wrote a response to my recent article, and I take this as proof that he doesn’t despise me so much as my proposal. Of course I am kidding. Like all writers, it is always good to get a response and I am grateful to all who commented. I take MacBain's erudition seriously and am actually reading his book. With the sufferance of the opinion editor of Western Standard I have been afforded one more “kick at the can” to flesh out my argument. It may still be wanting.I take no issue with anything that MacBain wrote. He is factually correct and has accurately captured the intentions of the Crown in the original numbered treaties. As I understand it, there was no consideration given then to payments beyond those spelled out in the treaties themselves. My First Nations friends equally assure me they are confident in the expertise of their ancestral treaty negotiators.In my reading of the instructions Queen Victoria gave to the Crown negotiators, there was to be "no sharp dealing" for such would be to "dishonour the Crown". Was there sharp dealing? For the most part I think very highly of the integrity of those who negotiated the treaties — both indigenous and Crown representatives. The treaties stand as a monument to the enlightened rule of Queen Victoria and her officers and those tribal chiefs who negotiated with her representatives. The alternative were the Battles of the Bighorn and Wounded Knee.But I also can't help noticing that the railway agreements negotiated at roughly the same time included reference to a distribution of subsurface (and surface) wealth. Cominco Ltd., Fording Coal, PanCanadian Petroleum, and Marathon Realty were formed to exploit the surface and subsurface wealth resulting from the Canadian Pacific Railway agreement, for example. Is it possible that there existed a power/knowledge differential between the First Nations and Crown negotiators? My understanding is that the distribution of subsurface wealth did not come up in the discussions — and why would it? But could such a distribution of wealth not now be offered as an act of reconciliation? The quid pro quo, of course, is the removal of the Indian Act as argued by Jody Wilson-Raybould.Would it require enormous layouts of additional money paid to First Nations? That would depend upon the negotiations, but I don't see why it would. Perhaps, in the absence of the large Ottawa bureaucracy that is dedicated to the continuance of the Indian Act, there might be a net saving in all-in costs. Royalty payments, tied to resource prices and activity rather than government declaration would not be open-ended as they are today. As proposed, the payments would come from a different pocket (provincial versus federal) and be more widely distributed to include First Nations who do not have oil, gas and minerals underlying their reserves. It could be argued that today’s federal and provincial payments to First Nations are extra-Treaty and therefore the Treaties are the wrong vehicle for making changes. My argument for opening the Treaties to adjustment is based on the very high regard in which those treaties are held in the First Nations community ensuring that great weight and attention would be given to the discussion of any proposed changes. I reiterate that I am offering a proposal and it is for the First Nations people and the Crown to determine the right vehicle for such changes. Perhaps my time on the National Energy Board has distorted the lens through which I look at First Nations reconciliation. I was told repeatedly by First Nations intervenors from all parts of Canada that their treaties are considered (by them) to have been negotiated “nation to nation” and signed by the Queen through her representatives. Is it possible that the future envisioned by Lieut-Gov. Morris was not shared by the First Nations signatories? They thought they were sharing the land in exchange for competitive education and not that they were being necessarily subsumed into European culture. The ”death by one thousand cuts” argument used in every resource hearing in which I participated is proof to me of the divergent views of what the treaties actually meant to the parties at the time they were signed. Should the First Nations signatories have understood the full and future implications of the treaties as understood by the Crown negotiators? Does it matter? The definition of a valid contract underscores the need for there to have been a “meeting of the minds.” I argue that such a meeting was illusory and didn’t occur at the time of signing. But perhaps I am wrong. For this reason, we have a Supreme Court which has ruled extensively on cases related to this issue.In the hearings that I attended, all First Nations individuals who presented evidence touching on the treaties were adamant the treaties would never be negotiated away. However, given that contracts and treaties are routinely reopened as conditions change, I don't accept that a good faith agreement, with or without a meeting of the minds, signed 150 years ago forecloses the possibility of making adjustments today in a way that keeps the treaties intact. The issue is the nature of the potential adjustments and the willingness of the parties to make those adjustments rather than the inviolability of the original terms of the agreement. I continue to consider my proposal worthy of consideration and I thank those who have commented. And I hope others will read Mr. MacBain’s excellent book.
