Special Royal relationship serves us all

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Paul Chiasson / the canadian press archives Queen Elizabeth, followed by Chief Alphonse Bird, visits the First Nation University in Regina in 2005. (CANADIAN PRESS)

As Queen Elizabeth's visit to Canada follows closely on the Truth and Reconciliation Commission of Canada's very successful first national event, this is good time to think about the unique relationship between Canada's First Nations and the reigning sovereign. This relationship has historic, symbolic, legal and political aspects that are different from the subject-citizen relationship between other Canadians and the Queen.

After the British gained military control over lands in North America formerly under French control, King George III's priority was to ensure peace and friendship with First Nations. He issued the Royal Proclamation of 1763, which is still part of the Canadian Constitution, to recognize that First Nations had control over their lands and to establish a process for ceding lands to the British Crown to facilitate European settlement. The Supreme Court of Canada has stated that the treaty process "serves to reconcile pre-existing aboriginal sovereignty with assumed Crown sovereignty."

Subsequently, about 500 nation-to-nation treaties were signed between the First Nations in Canada and the Crown. The Royal Commission on Aboriginal Peoples (1996) noted that "because of this relationship, the Crown acts as the protector of the sovereignty of aboriginal peoples within Canada and as guarantor of their aboriginal and treaty rights. This fiduciary relationship is a fundamental feature of the constitution of Canada."

While treaties are not all the same, generally speaking, First Nations agreed by treaty to live peacefully with settlers and to give up some land rights in exchange for promises from the Crown to protect and respect social, economic and political rights. The negotiators for the numbered treaties affecting the prairie provinces agreed that the treaties would continue for "as long as the sun shines, the grass grows and the rivers flow."

Many First Nations peoples, therefore, consider treaties to be personal and perpetual promises made by the reigning monarch that are binding on his or her successors. This nation-to-nation relationship continues and is not subject to the vagaries of Canadian electoral politics.

First Nation institutions and leaders usually have a prominent role in Royal Tours. In 2005, Queen Elizabeth laid the cornerstone for Regina's First Nations University using stone taken from Balmoral Castle grounds. Noting that the castle was a favourite haunt of her great-great-grandmother, Queen Victoria, she wanted the stone to be "a reminder of the special relationship between the sovereign and all First Nations peoples."

On the current tour, the welcoming ceremony in Nova Scotia was opened with a prayer offered by a Mi'kmaq elder, the Queen visited a Mi'kmaq cultural centre and, while in Winnipeg, she will be greeted in Winnipeg by Chief Donavon Fontaine of the Sagkeeng First Nation.

She and other members of the Royal Family have accepted the honour of aboriginal names, thereby gaining the status of a relation and the symbolic obligations that attach to this status.

Canadian governments have a legal duty to protect the "honour of the Crown" in their dealings with aboriginal peoples. In the context of treaty interpretation and implementation, this duty requires that governments act with integrity and to honour the spirit and intent of treaties.

Queen Elizabeth has publicly acknowledged the importance of full compliance with these treaties. Treaties have been described by courts as containing "sacred promises." Recently, the Federal Court of Canada held that the federal government's refusal to consult with First Nations about Winnipeg's Kapyong Barracks redevelopment is "unlawful and a failure to maintain the honour of the Crown." (An appeal from this decision will be argued in court in the fall.)

Since at least as early at 1710, when three Chiefs from the Iroquoian Confederacy were received by Queen Anne to hear their petition for military aid, First Nations leaders from Canada have sought private and public audiences with the reigning sovereign.

In the late 1970s, First Nations delegations travelled to Britain to express concerns over the patriation of the Canadian constitution and the failure to involve them in constitutional conferences. Many are of the view that the Canadian government finally invited aboriginal leaders to the table out of fear that they would be rebuked by the Queen.

More recently, on the occasion of Queen Elizabeth's 2008 visit to British Columbia, Assembly of First Nations Grand Chief Shawn Atleo presented her with a grievance over the intractable treaty negotiations in British Columbia.

The signatories to the numbered treaties promised that there would be "peace and good will between them and Her Majesty" and that First Nations would be able to "count upon... Her Majesty's bounty and benevolence." This is one treaty promise has been kept by both parties.

All Canadians have benefitted from the unique, ongoing and harmonious relationship that the Queen and First Nations have maintained.

Karen Busby is a professor of law in the Faculty of Law, University of Manitoba.

Republished from the Winnipeg Free Press print edition July 3, 2010 A14