Indigenous treaty: Langton, Davis look to Canadian model

Settled treaties cover 40 per cent of Canadian territory and remain the mechanism for aboriginal self-determination.

Section 35 of Canada’s Constitution Act, enacted almost 35 years ago, provides the basis for what indigenous academics Marcia Langton and Megan Davis describe as “the gold standard of a postcolonial state dealing with first peoples”.

It states: “Aboriginal and treaty rights are hereby recognised and affirmed.” It is why, as Langton and Davis note in a new book, the expert panel on constitutional recognition convened by Julia Gillard in 2010 received so many submissions making reference to Canada. And with that word recognise, it underlines the challenge the pair identify at the heart of Australia’s current project: the challenge of a word that could mean nothing or everything.

“The word ‘recognition’ proves problematic (in the Australian context),” they write in From Recognition to Reconciliation, “because of the non-specific nature of the commitment it implies, juxtaposed against the very specific and concrete recommendations the panel (on which they both sat) makes.”

Canada’s section 35 does not define “aboriginal rights”: a legal process exists for testing it whenever the need arises, although it has been found to include fishing, hunting, logging, land rights and treaty enforcement.

Canada has a long history of treaties, signed by First Nations from 1701 with France and England on initial contact. Primarily they were trade alliances, but also documents of colonial conquest. Significantly, they are based on recognition of existing sovereignty: in each case, they are between First Nations and the crown.

By the mid-18th century Britain had become dominant over France and in 1763 made it unlawful for any entity other than the British crown to purchase First Nation lands. Even then, the sale required the agreement of the entire First Nation at a public meeting; there is still disquiet among many aboriginal Canadian groups over whether these historic transactions involved a handing over of ownership or merely of property-use rights.

A series of treaties signed after confederation in 1867 is known as the “numbered treaties” because there are 11 of them, numbered in order.

They involve giving up large areas of land to the crown in return for various rights, including reserve lands, fishing and hunting rights. One includes a medicine chest.

Each of these treaties is unique, based on specific geographical and cultural conditions. For the newly federated Dominion of Canada, they were a means of expanding to the Pacific and exploiting natural resources; for the various First Nations involved, they addressed growing economic and social need.

There is a legal distinction between the historic treaties made between 1701 and 1923 and modern treaties, known as comprehensive land claim settlements. The latter deal with areas where claims to aboriginal rights have not already been addressed by treaties or other legal means, and continue to be negotiated.

The first of these, in 1975, was the James Bay and Northern Quebec Agreement with the Cree and Inuit, and later the Naskapi, nations. It gives various rights over about 60 per cent of Quebec land. It included $C260 million to be managed by native-owned development corporations, as well as provisions for native-run education, health and social services, and self-government.

Settled treaties now cover 40 per cent of Canadian territory and the government regards the mechanism as the ongoing means by which aboriginal self-determination is to be achieved — although Langton and Davis warn against relying too literally on the model for an Australian solution.

“Treaties at first contact, postcolonial agreement making, statutory and constitutionally entrenched human rights and measures such as a Truth and Reconciliation Commission or a Royal Commission (on) Aboriginal Peoples — these are simply out of reach for Aboriginal peoples in Australia,” they conclude.