Treaties101

Manitoba is covered by five treaties, including the biggie, Treaty Five, which covers the northern three-quarters of the province. The treaties are pretty short and easy to read, but they are probably the most disputed and untested documents in Canada. No one -- not First Nations leaders, historians, lawyers, the government, the courts -- can quite agree on what they mean 130 years later.

Treaty Five promised a school in every reserve, hunting and fishing rights on all traditional lands, two hoes for every family who wanted to farm and $5 a year for every band member.

That five bucks may have been a lot in 1875, but it's not particularly useful now.

The annual $5 treaty payments are, for many, a symbol of the ongoing nature of the treaty deals that bound the bands and the Dominion together in a real relationship. For others, they're evidence just how one-sided the treaties were.

The most important and debated element of the treaties is the section where the bands ceded, released, surrendered and yielded up to the Dominion of Canada all rights, titles and privileges to lands outside the agreed-upon reserves.

That seems to suggest bands don't have rights to a share of the logging, mining, or oil and gas projects underway on lands beyond their small reserves. Canada considered, and still generally considers, that the bands had given up all claim on those lands.

First Nations leaders disagree. They believe the intent of the treaties was to share the land with the settlers, that what was verbally agreed to never matched the wording, that the government boondoggled people who, in many cases, were unable to read and whose communities were facing disease and starvation.

In many cases, oral traditions suggest the leaders believed they were only ceding six inches of topsoil -- the depth of a plow. Anything lower, like minerals and water, was meant to be shared.

The Supreme Court has ruled oral histories must be accepted as evidence during treaty cases, a ruling that was a game-changer for First Nations people, said Manitoba's treaty relations commissioner James Wilson.

First Nations leaders believe there are promises implicit in the treaties, such as the right to clean water and proper health care. In some treaties, mostly outside Manitoba, the promise of a medicine chest is taken to mean the promise of health care.

Among First Nations leadership, there is a huge emphasis on treaties as the founding documents of the country, contracts that were largely broken. At times, the emphasis on that original injustice has stopped First Nations from pursuing practical solutions to problems because those solutions might erode treaty rights, however untested those rights may be.

When Canadians balk at the billions spent on reserves, First Nations people see that money as part of an unpaid debt.

In 2010-11, Aboriginal Affairs spent $955.6 million in Manitoba -- nearly 98 per cent on direct grants and contributions to the 63 First Nations.

But former prime minister Paul Martin says First Nations actually receive vastly less than their share.

Ottawa spends about 20 to 30 per cent less per student on reserve than provincial governments do for students in cities and towns. Ottawa spends 20 to 25 per cent less on social assistance and substantially less on health care. Auditors general have confirmed the chronic underfunding.

Cash given to bands sometimes gets mismanaged, but it is simply incorrect to suggest bands are getting millions of dollars other Canadians aren't.

"In many cases, those are treaty rights," added Martin.

"That's a contract we made in exchange for land, and by and large, we broke those contracts."

-- Mary Agnes Welch

Republished from the Winnipeg Free Press print edition February 4, 2012 J2