- The Right Relationship: Reimagining the Implementation of Historical Treaties ed. by John Burrows and Michael Coyle
John Borrows and Michael Coyle have edited a stimulating collection of thought-provoking essays on the foundational question of Canada's treaties with Indigenous nations. The editors, one Indigenous, the other not, embody in their collaboration the fundamental spirit and intent in understanding treaties not as contracts but, rather, as ongoing relationships established between peoples with distinct cultures and worldviews. This is an important collection, one that should be read as widely as possible. Politicians, journalists, lawyers, and judges will clearly benefit from engagement with the ideas presented within, but the chapters are also accessible to those outside these specializations. Indeed, I have used this book successfully with my fourth-year students in a course called Canada by Treaty: Alliances, Title Transfers and Land Claims. They found Heidi Kiiwetinepinesiik Stark and Aaron Mills's chapters especially helpful in articulating Indigenous (specifically Anishinaabeg) understandings of treaty as relationship and fulfilment of responsibilities and treaty as a form of shared governance through which those relationships are maintained.
While all of the essays are worth reading, two make particularly significant critical interventions into the contemporary questions about what constitutional and legislative changes are necessary to create "the Right Relationship." Borrows's own chapter, "Canada's Colonial Constitution," calls for attention to "Canada's constitutional inconsistencies," specifically the vexing problems that the divided Crown creates for treaty relationships. While the federal government under section 91 of the British North America Act, 1867 has responsibility for lands and lands reserved for Indians, section 92 gives Crown lands and their revenues to the provinces. As Borrows notes, "while the Dominion government's actions have always been problematic, the provinces have been a significant source of First Nations misery as confederation continued to decentralize across the land." The problem was reinforced in the 1950s with an amendment to the Indian Act, 1876, which made Indigenous peoples broadly subject to provincial legislation. Julie Jai's "Bargains Made in Bad Times: How Principles from Modern Treaties Can Reinvigorate Historic Treaties" is also noteworthy for the framework she proposes to address [End Page 199] historic inequities between treaty First Nations, inequities that exist primarily because of when they were signed. Jai compares historic treaties made before 1923 with twenty-seven comprehensive agreements negotiated after the 1973 Calder decision. While sensitive to the main criticisms of these agreements – that they can create institutional bureaucracies within First Nations that "mirror government bureaucracies and force people to frame issues using the language and conceptual frameworks of Euro-Canadian society" – she makes a compelling case for their clarity. She also lays out a specific plan by which three principles from modern treaties could inform the renegotiation of historic treaties to create: (1) processes for co-management of resources, (2) dispute resolution mechanisms, and (3) amendment provisions.
That is not to say that this book is without flaw. One weakness is its overall focus on legal analysis despite the stated interest in historical questions (for example, Part One asks directly: "how should history shape the law?"). This problem is especially evident where the contributors reference the Proclamation of 1763/Treaty of Niagara of 1764 as the twin foundations of treaty relationship within Canada. Regardless of the uses to which it has subsequently been put, the land purchase provisions in the 1763 proclamation were crafted without input from Indigenous peoples; they were intended solely to take over and regulate land purchases that the separate colonies had previously managed themselves in the wake of the Seven Years' War. And British participation in the Treaty of Niagara of 1764, which was orchestrated by Sir William Johnson, superintendent of the Northern District, was really about giving the appearance of recognizing Indigenous legal traditions and practices in order to secure British imperial objectives and preserve peace on the colonial frontier. Coming to terms with this history is part of the work of forging better relationships and confronting Canada's colonial past, along with reading the essays...