RUBENSTEIN: Treaty 8 chiefs have no grounds to demand resource revenue sharing on ceded lands

Hymie Rubenstein, editor of REAL Indigenous Report, is a retired professor of anthropology at the University of Manitoba and a senior fellow at the Frontier Centre for Public Policy.In response to a recent Western Standard news story about indigenous grievances, Treaty 8 chiefs’ claims for resource revenue sharing on ceded Western Canadian lands lack a clear legal and historical foundation, which is essential for understanding their legitimacy and impact. While the phrase “Treaty 8 territory” seems to refer to lands surrendered to the Crown in the 1899 agreement, understanding the temporal context of these land surrender agreements helps clarify why current claims for resource revenue sharing are legally and historically unfounded. Before willingly signing Treaty 8, the last and most fulsome of the numbered treaties, its indigenous chiefs and headmen were clearly told that: whether [a] treaty was made or not, they were subject to the law, bound to obey it, and liable to punishment for any infringements of it. We pointed out that the law was designed for the protection of all, and must be respected by all the inhabitants of the country, irrespective of colour or origin; and that, in requiring them to live at peace with white men who came into the country, and not to molest them in person or in property, it only required them to do what white men were required to do as to the Indians.This verbal declaration was also found in other treaties. Even though its preamble declares that, “The Indians were generally averse to being placed on reserves,” it would have been impossible to have made a treaty if they had not assured that “there was no intention of confining them to reserves,” a promise that was partially circumscribed for good reasons by the informal and haphazardly applied “pass system” that was in place between 1886 and the 1930s. The signing of Treaty 6, along with the acceptance of the other land surrender agreements, is proof of the acceptance by the concerned parties of the legitimacy of the overarching principle and operation of British Crown sovereignty in what is now Canada..As well, the official Treaty 8 web page states that its terms were accepted by the signatories for "reasons of peace and friendship,” a rationale that applies to all such treaties.What makes Treaty 8 unique is that it was the most expansive and comprehensive of all the Numbered Treaties: it included approximately 841,000 km2 (324,900 sq mi) of sparsely populated land that spanned the northern regions of what are now three Western provinces. This made the land covered by this Treaty larger than the huge nation of France: it included northern Alberta, northeastern British Columbia, northwestern Saskatchewan, and a southernmost portion of the Northwest Territories. Its enormous size is also evident in the fact that 39 different Indian Bands are governed by Treaty 8. But only a small fraction of this vast land was reserved exclusively for its indigenous inhabitants. It is the ceded land that Aboriginal leaders now seem to be revisiting.Historically, Treaty 8 was made between “Her most Gracious Majesty the Queen [Victoria] of Great Britain and Ireland … and the Cree, Beaver, Chipewyan, and other Indians, inhabitants of the territory within the limits hereinafter defined and described, by their Chiefs and Headmen, hereunto subscribed.” The Treaty goes on to say that: AND WHEREAS, the said Indians have been notified and informed by Her Majesty's said Commission that it is Her desire to open for settlement, immigration, trade, travel, mining, lumbering, and such other purposes as to Her Majesty may seem meet, a tract of country bounded and described as hereinafter mentioned, and to obtain the consent thereto of Her Indian subjects inhabiting the said tract, and to make a treaty and arrange with them so that there may be peace and goodwill between them and Her Majesty's other subjects, and that Her Indian people may know and be assured of what allowances they are to count upon and receive from Her Majesty's bounty and benevolence..The Treaty also explicitly states that: AND WHEREAS, the said Commissioners have proceeded to negotiate a treaty with the Cree, Beaver, Chipewyan, and other Indians inhabiting the district hereinafter defined and described, and the same has been agreed upon and concluded by the respective bands at the dates mentioned hereunder, the said Indians DO HEREBY CEDE, RELEASE, SURRENDER, AND YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors for ever, all their rights, titles, and privileges whatsoever, to the lands included within the following limits [designated in the agreement].AND ALSO the said Indian rights, titles, and privileges whatsoever to all other lands wherever situated in the Northwest Territories, British Columbia, or in any other portion of the Dominion of Canada.TO HAVE AND TO HOLD the same to Her Majesty the Queen and Her successors for ever. [capital letter emphasis in the original document]In return: Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping, and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading, or other purposes.Her Majesty the Queen's promise of “usual vocations” — hunting, trapping, and fishing — does not extend to oil, gas, forestry, and mining outside reserve boundaries, highlighting the limits of treaty obligations regarding resource development..In addition: Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for such bands as desire reserves … and [other lands] for such families or individual Indians as may prefer to live apart from band reserves.Provided, however, that Her Majesty reserves the right to deal with any settlers within the bounds of any lands reserved for any band as She may see fit; and also that the aforesaid reserves of land, or any interest therein, may be sold or otherwise disposed of by Her Majesty’s Government for the use and benefit of the said Indians entitled thereto, with their consent first had and obtained.It is further agreed between Her Majesty and Her said Indian subjects that such portions of the reserves and lands above indicated as may at any time be required for public works, buildings, railways, or roads of whatsoever nature may be appropriated for that purpose by Her Majesty’s Government of the Dominion of Canada, due compensation being made to the Indians for the value of any improvements thereon, and an equivalent in land, money, or other consideration for the area of the reserve so appropriated.None of these constraints on what Crown Lands are to this day includes the requirement “to establish formal bilateral negotiations with Ottawa and implement resource revenue sharing [so that] First Nations [must] become full partners in major resource development projects across Northern Alberta,” as the Chiefs are now demanding.Certainly, no such requirements were attached to the ceded lands. Likewise, contrary to what Treaty 8 Chiefs are now claiming 127 years later, this binding agreement makes no mention of giving assent to “resource revenue sharing” in which “First Nations must become full partners in major resource development projects across Northern Alberta,” including on territory permanently ceded to the Crown in 1899.Nor are Treaty 8 rights expanded by Sections 25 or 35 of Canada’s 1982 Constitution. The latter only says that “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”The ancestors of these current Treaty 8 chiefs largely abided by the terms of an agreement, including “treaty implementation, health care, education, and other treaty obligations,” that they signed in good faith.Their descendants are obliged to do the same, which is perhaps why Prime Minister Mark Carney issued no official response to these demands.Hymie Rubenstein, editor of REAL Indigenous Report, is a retired professor of anthropology at the University of Manitoba and a senior fellow at the Frontier Centre for Public Policy.

RUBENSTEIN: Treaty 8 chiefs have no grounds to demand resource revenue sharing on ceded lands

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