Some History
The most important truth to remember, one that impacts all
discussions about all Aboriginal rights, is that First Nation
peoples were here occupying these lands, implementing their laws,
governing their territories when Europeans arrived, and were
never conquered by settlers or their imported governments. The
Supreme Court of Canada (SCC) reminds the government of this fact
in almost every Aboriginal rights case because this history
places limits on what the government can do. This fundamental
point is often overlooked, but should not be, despite government
assertions that it may have little relevance to current
negotiations. The reason this is so important is that, according
to international law, if First Nations were conquered then all
laws of the conquering government of England would apply in the
new lands. In that case, First Nation rights and laws would only
be recognised if England (and now Canada) allowed or granted
them. However, this is definitely not the case, and the SCC
agrees.i
Given that Europeans did not conquer First Nations through war or
any other means, the only way that they can legitimately exercise
power as governments over First Nation territories is if First
Nations have given up sovereignty to their territories. According
to western law, sovereignty is defined as ‘supreme dominion,
authority or rule’.ii This is a difficult concept to marry with
indigenous laws, which generally provide that the Creator is the
source of authority.iii However, First Nations have
responsibilities regarding lands and waters, given by the
Creator, and they exercised these duties and roles throughout
their territories before European contact.
Many First Nations addressed some their concerns regarding
sharing their territories with Europeans. They did this through
treaties that set out numerous sorts of agreements between First
Nations and the government (which at the time was the Queen
representing England) ensuring peace and friendship, land cession
and sharing, and access to resources. Others have yet to, and may
never, do so. First Nations that did not sign treaties indicate
that they still possess all their original powers related to
land, water and governance. Even those First Nation that did
resolve certain matters relating to the sharing of land and
resources (and are still waiting for those promises to be
fulfilled) assert that they did not surrender all their powers
and land, water and resource rights. This assertion is strongly
supported by a brief review of the treaties: no treaties indicate
that the signatory First Nations released all their governance
powers and all their land, water and resource rights.
So, even though it is not clear exactly if or how Canada came to
legitimately have sovereign authority, the reality is the SCC
agrees that Canada is sovereign, and Canada certainly exercises
its powers constantly. However, the court has stated that
regarding First Nations rights, the honour of the Crown requires
that these rights be determined, recognized and respected.