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Legal Nature Of The Treaties

SASKATCHEWAN INDIAN      MAY 1973      INDIAN ACT SUPPLEMENT p06  
Treaty Signing Logo One must immediately emphasize that Indian Treaties do create rights. For one thing, they protect against Provincial Legislation which purports to override Indian Treaty Rights. The reason for this is Section 88 of the Indian Act which states that all Provincial Laws of general application applied to Indians in the province except subject to Federal Legislation, and accept subject to the terms of the Treaties.

For example, restrictions of the Game Act (Provincial Legislation) do not apply to Indians hunting for food off the reserve, yet on land upon which they are allowed to hunt, i.e. unoccupied Crown Lands or privately owned land with the consent of the owner occupant. They do not apply to Indians because that Provincial Legislation is subject to the terms of the Treaties. One may conclude therefore, that Treaty Rights have legislative effect at least to the extent that they overrule Provincial Legislation which would purport to restrict Treaty Rights.

But Treaties do not overrule Federal Law. Parliament has the power to breach Indian Treaties if it so wills. In fact it has done so. In the SIKYEA CASE decided by the Supreme Court of Canada in 1964, the court found that the rights given to the Indians by their Treaties as they applied to the Migratory Birds have been taken away by the MIGRATORY BIRDS CONVENTION ACT(Federal legislation).

So Treaty terms to a limited extent have "legislative affect, but the Federal Government, and in particular Prime Minister Trudeau regards an Indian Treaty as a "form of contract", between the Indian people and the Crown. Further we discover that Canadian Courts have in the main regarded Indian Treaties the same as private agreements or contracts, describing Treaty terms as "mere promises".

Note that at the time of the signing of the treaties both the Federal Government and the signatory Chiefs intended to create legal obligations of a permanent character. It is interesting to note that for some years following 1850 the ordinary meaning given "treaty", was "negotiation of any agreement or contract".

Although Canadian courts have described the solemn treaties as "mere promises and agreements" which can be broken by the Federal Government, they (the courts) do consider treaty obligations enforceable at law. The courts note that the obligation on the Government to carry out its treaty agreements is still binding, and, and in the event of breach by the Federal Government, compensation must be paid to the signatory Bands, at least in the absence of valid legislation abrogating those treaty rights.

Since the case law developed by Canadian Courts in dealing with the Indian Treaties is exceptionally sparse, the rules which will be applied by the courts in dealing with these treaties cannot be stated definitely. The Courts have ruled that the provisions of these treaties may be overridden by Federal legislation but not by Provincial legislation. The cases which have interpreted and applied Treaty promises make it clear that the Indian Treaties constitute legally forceable obligations. Unfortunately, the extent to which Treaty obligations are enforceable, and perhaps more importantly, the extent of compensation which would be accorded breaches of Trdaty obligations is unclear.

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