This is the last in a four-part series of commentary on the Superior Court of Quebec's recent decision in R. c. Montour, 2023 QCCS 4154 ("Montour"). This part focuses on the Court's finding of a treaty right to a "conflict-resolution procedure" protected by section 35 of the Constitution Act, 1982; how it can be extended to other historic treaties made in similar contexts; and how this renewed reading of treaties breathes life into Indigenous peoples' right to self-determination in Canadian law.
A treaty right to conflict-resolution mechanisms
The Court found that a series of ten historic agreements made between the British Crown and the Haudenosaunee Confederacy, including the Mohawk, from 1664 to 1760, together with and as part of a Covenant Chain, guaranteed the Mohawks' Aboriginal and treaty rights to free trade of tobacco and to discuss any issues related to the tobacco trade with the Crown. The Crown infringed these rights by imposing a rigid licensing scheme and by failing to consult with the Confederacy before enacting and implementing the Excise Act.
The Court held that the Covenant Chain is an unextinct treaty, based on a British-Haudenosaunee alliance of peace and friendship, which was made and maintained in accordance with Haudenosaunee protocols. Under this treaty, the British and the Haudenosaunee exchanged wampum belts and held regular councils to resolve conflict, discuss issues and maintain their relationship. As a result, the Covenant Chain included a conflict-resolution procedure that the Crown was now required to follow when dealing with core aspects of the Covenant Chain, namely peace and trade.
Justice Bourque rejected the argument that the absence of a written record denies the existence of a treaty or a conflict-resolution procedure because the British "had the habit of writing down their agreements." Not only can a treaty be entirely or primarily oral – which was the dominant practice among Indigenous nations – but the British were aware of and fully adopted Haudenosaunee diplomatic protocols including the practice of holding councils as a designated process for resolving conflicts. This resulted in a standalone treaty right to council-based conflict resolution.
The Court also rejected Quebec's argument that it would be improbable for the British to agree to such process as this would have been at odds with their "imperial logic of the time", the primary objective of which was to assert their sovereignty over territories and populations of the colony. Reliance on a conflict-resolution process did not contradict the British colonial objectives; quite the opposite, it was a pragmatic approach in pursuit of those objectives as it prevented conflicts and guaranteed Haudenosaunee alliances and support that the British needed.
Therefore, the Crown had a treaty obligation to engage in conflict resolution regarding the longstanding Crown-Mohawk dispute over the trading of tobacco. The practice of convening councils to address treaty-related conflicts was found to be an integral part of the Covenant Chain that is still in force.
This view of historic treaties marks a welcome departure from the Crown's duty to consult and accommodate, which allows for unilateral Crown decisions, to a process that directly emanates from the history and foundational principles of treaties on which this country is built. It confirms that a right to meaningful, equal negotiation between Indigenous and Crown treaty partners can be incorporated into the treaty relationship.
Application to other Crown-Indigenous treaties
Other historic pre- and post-Confederation treaties may attract a similar interpretation, especially when one considers the Indigenous perspectives on treaty-making and the oral promises made by the Crown at the time.
As of the mid-19th century, the main objective of colonial authorities in dealing with Indigenous nations shifted from establishing strategic military alliances to securing more lands for settlement and industry. Some numbered treaties were made in relatively intact regions where Indigenous laws, treaty-making practices and protocols were still largely in place. In keeping with Indigenous diplomatic and treaty-making traditions that the British had observed since around the Treaty of Niagara in 1764, Crown representatives upheld or at least purported to uphold these norms. A common thread was the practice of convening and conducting councils, gift giving, speech-making, and the exchange of tobacco.
During negotiations, treaty commissioners continually reassured Indigenous people of the protection of their livelihood and "way of life", although this is not clearly reflected in the treaties' written text. They used kinship metaphors that conformed to the Indigenous perspective and alluded to a lasting relationship which required the treaty partners to continue to engage about distinct treaty topics. As a result, Indigenous signatories understood themselves to be entering into a long-term, ongoing relationship with the Crown in sharing the land with settlers. When Crown officials came back each year to pay treaty annuities, Indigenous people would raise a range of issues that needed to be addressed between them and the Crown, and continued to do so for decades.
The main difference from earlier peace and friendship treaties like the Covenant Chain was that the balance of power had shifted in favour of the Crown. The Dominion, now bent on colonization and settlement, dictated treaty terms in writing which differed from the understanding reached orally. What had not changed was the need for access to Indigenous nations' land and resources and their peaceful cooperation with settlement. In exchange, the Crown promised that their way of life would be protected, necessitating an ongoing relationship and dialogue.
From this perspective, the kind of conflict-resolution mechanism that was found to exist in Montour is not unique to the Crown-Haudenosaunee Covenant Chain and may well be built into other historic treaties. Indigenous treaty partners expected ongoing dialogue with the Crown, consistent with their understanding that these agreements were not one-off deals, but a means of peaceful coexistence and sharing. This was also the stated intention of the Crown, even though its ultimate colonial ambitions were undoubtedly different.
Growing support for positive duty to negotiate to honour treaty promises
The recognition of a treaty right to conflict resolution as an integral part of the Covenant Chain is in line with a recent trend in case law where a positive duty to negotiate may be imposed on governments to ensure that treaty rights are respected in a manner that upholds the honour of the Crown. In Yahey v British Columbia, 2021 BCSC 1287, the BC Supreme Court required BC to consult and negotiate with the Blueberry River First Nation to establish enforceable mechanisms to assess and manage cumulative impacts of industrial development on their Treaty 8 rights.
This was not based on a finding of a standalone treaty right to conflict resolution, but on the province's failure to implement Treaty 8 promises diligently and honorably vis-à-vis Blueberry River. Regardless, it resulted in an elevated duty to consult and accommodate, requiring that negotiated outcomes be reached and thereby removing the possibility for unilateral Crown action.
A similar outcome was reached in Montour, as the treaty right to a conflict resolution process requires the Crown to engage in good faith negotiations in lieu of check-box bureaucracy that the duty to consult framework often supports.
While the United Nation's Declaration on the Rights of Indigenous Peoples continues to gain legislative and judicial recognition in Canada (see Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5), Montour opens the door to the recognition of treaty rights that incorporate the Indigenous treaty partners' right to self-determination and self-government, and which may include a right to jurisdiction and control over their traditional lands and resources.
Historic treaties cover nearly 50% of Canada's land mass. These treaties were made between sovereign nations, to last for eternity. As more First Nations engage in litigation to seek recognition of their treaty right to decide how their traditional lands and resources are to be used, managed, and protected, Montour calls for a more faithful interpretation of treaty terms – one that is truly aligned with the Indigenous perspectives and intention in dealing with the Crown and is consistent with Indigenous legal orders and political realities of the time, allowing for the recognition of an inherent right to self-determination and self-government in core aspects of those treaties.
Originally published 05 March 2024
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