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The Right Relationship: Reimagining the Implementation of Historical Treaties

By John Borrows and Michael Coyle, Editors

Review By Tyler McCreary

June 9, 2018

BC Studies no. 199 Autumn 2018  | p. 180-2

In the 1764 Treaty of Niagara, representatives of the British Crown met with a gathering of more than two thousand Indigenous leaders and committed that North American settlement would only proceed with Indigenous consent. At this gathering, the language of kinship was used to express a shared understanding of treaties as the foundation of peaceful settler-Indigenous coexistence. In the wake of the sestercentennial of the Treaty of Niagara, John Borrows and Michael Coyle have assembled a series of essays reflecting on the state of the treaty relationship. The Right Relationship brings together a mix of Indigenous and settler legal scholars, whose interventions range from pointed arguments about judicial interpretation to comprehensive engagements with Indigenous legal principles.

A coauthored introduction stages the questions framing the volume; however, it is the opening essay by Borrows that ultimately frames the collection. In “Canada’s Colonial Constitution,” Borrows both presents the vision for the treaty relationship established at Niagara and charts the continual shape-shifting of the Crown as it has undermined the promise of a treaty federation through the decades. He argues against asking Indigenous peoples to reconcile themselves to colonialism, and instead suggests that it is necessary to center Indigenous law in constructing remedies to eroded settler-Indigenous relationships.

The other chapters of the first section of the book continue to ask after the relationship between treaties, history, and the present. Coyle examines the historical conception of treaties as land-sharing agreements. Kent McNeil excoriates the historical evidence and scholarship of Paul McHugh, a regular expert witness for the government. Julie Jai proposes a method to extend modern treaty frameworks to historic treaties. Francesca Allodi-Ross suggests a means of balancing individual and collective interests in treaty rights cases, while Sari Graben and Matthew Mehaffey address the inequalities that continue to pervade negotiations of financial transfers to implement self-government agreements.

The second section, which addresses the role of Indigenous (particularly Anishinaabe) law in treaty implementation, is the most provocative section of the book. It opens with Mark Walters’ inquiries into how Anishinaabe travel can help us think about law as a canoe negotiating a river, just one jurisdiction operating in relation to many others. Against contractual understandings of treaties, Aaron Mills positions treaties within Anishinaabe constitutionalism, arguing that they should be approached politically as enactments of citizenship. Heidi Stark similarly argues that treaties should not be read textually but rather within the context of a storied Anishinaabe world. Finally, Sarah Morales interrogates how Hul’qumi’num law can highlight the improper conduct of British Columbia in contemporary treaty negotiations.

The book concludes with a set of chapters examining the possibility of establishing other forums to implement treaties. Jacinta Ruru discusses the Treaty of Waitangi claims process in Aotearoa/New Zealand. Jean Leclair reflects on the role of the courts in treaty disputes. Finally, in a pair of complementary chapters, Sara Seck and Shin Imai reflect on how emerging corporate norms around securing Indigenous consent to development can model new modes for the conduct of different authorities in international and domestic contexts, respectively.

The authors at times conflict in their respective emphases on Canadian jurisprudence and the practice of Indigenous law. For instance, Mills is emphatic that repairing treaty relationships will not occur through the courts and compellingly argues for instead embodying treaties through interpersonal relationships, following the Anishinaabe mode of lawful conduct. However, through all their diversity, the contributors hold in common a desire to support and extend the spirit and intent of treaties as a shared relationship. As a whole, the collection invites readers to take the first steps in a collective process towards reconceptualizing how we understand and approach treaties.

The Right Relationship: Reimagining the Implementation of Historical Treaties
John Borrows and Michael Coyle, editors
Toronto: University of Toronto Press, 2017. 428 pp. $29.96 paper.