Kidding aside, Chris Moore is a rare legal historian, one who is not afraid to enter the journalistic fray. His response to The National Post's Jonathan Kay on Attiwapiskat and Treaty 9 is excellent, and deserves as many reposts as it can get.
Here's what Chris has to say (picture removed):
Kay on Treaty History: Well-meaning, wrong-headed
Late in 2011, before Attawapiskat and Idle No More were as newsy as they are now, CBC Radio's Ideas presented my radio documentary "George MacMartin's Big Canoe Trip," an exploration of how the James Bay Treaty was made in 1905. The radio-doc draws on the diary of MacMartin, one of the men who made the treaty for the Canadian government, but also on the work of Nipissing University historian John Long, the recent author of Treaty 9: The Agreement to Share the Land in Far Northern Ontario in 1905, and on the Cree understanding of what was done in 1905.
Sara Wolch, my producer at Ideas, recently pitched the Corp on rebroadcasting the program, in light of what's going on. I'm happy to say they got the idea. "George MacMartin's Big Canoe Trip" will be going out on the CBC Radio One network this Thursday, January 10, at 9:00 pm. Catch it if you can. And if you cannot, it's permanently available from the Ideas website right here.
I'd been thinking about that program partly because of this piece, "To Understand How We Got to Attawapiskat..." by Jonathan Kay in the National Post.
Kay is clearly as concerned as anyone about the horrible, shameful, seemingly unending tragedies to which First Nations across Canada have been brought. He has the wise thought that since so much about northern First Nations communities seems to hinge on treaties and treaty rights, we should pay attention to the Treaty in question, Treaty 9. And he goes into quite a bit of historical detail.
The century-old accounts of the government’s Treaty commissioners — Duncan Scott, Samuel Stewart and Daniel [George] MacMartin — make for fascinating reading. In June, 1905, these men set out by canoe into the vast 90,000-square mile expanse of provincial lands drained by the Albany and Moose river systems, methodically traveling to isolated First Nations tribes one by one, such as Lac Seul, Osnaburg, Fort Albany and Moose Factory. Relying on local traders and missionaries who were fluent in Cree and Ojibway tongues, the commissioners methodically recorded the names of the 1,617 Indians they met, their discussions and rituals, and the amount of money they gave them to seal the Treaty.Note how Kay goes to the accounts of the government's commissioners. To understand what the treaty means, Kay relies on what the commissioners and particularly their leader, Indian Affairs official Duncan Campbell Scott, said it meant. An account provided by one side of the negotiation is taken as authoritative and objective. And so Kay understands the treaty as: surrender.
What I am quoting here is the commissioners’ Nov. 6, 1905 report, not the actual text of the James Bay Treaty (which is brief). But it expresses the real nub of the intended treaty relationship: The natives would continue hunting and fishing for sustenance and trade, and receive annual payments from the government (four dollars, to be exact), while white men would have the right to put down their train tracks, mines, forestry operations and settlements.That is a pretty good summary of what the Canadian interpretation of the treaty has been for over a century. The Cree and Ojibwa got some welfare, but Canada got the land, the resources, the development rights, the future. That is all ours now, and it's mostly leased out to loggers and miners and hydro developers The Cree and Ojibwa have no rights in that, so they are poor, they have no future in their own land.
Because of the treaty, this version of history tells us, the First Nations might as well be our tenants. They are certainly our dependents, dependent upon as much charity as our governments feel inclined to dole out. Kay, to his credit, finds that situation unacceptable. So he accepts it is our task to figure out how to get them out of their insupportable lives.
His solutions are both mainstream and drastic The First Nations leaders may talk of treaties, but Kay finds the treaties are now beside the point:
The Idle No More message on treaties is irrelevant: The great challenge of native policy in the 21st century will be to integrate natives into the larger economy that is based in Canadian population centers. Remote fly-in communities such as Attawapiskat, on the other hand, are doomed.Kay, like most of Canada, thinks the solution is education: get the kids -- hell, the adults too -- out of their communities and into schools, train them to have jobs like everyone else, acclimatise them to come live in the southern cities like everyone else, train them to be a tiny part of everyone else. They lost, we won, deal with it. Kay concludes the only solution is the one Canada has been trying for about 400 years: education, assimilation, extinction. Kay in the Post puts it plainly, but the viewpoints in the Toronto Star are substantially the same.
Yet the focus of Idle No More is clear: it's the treaties.
The treaty agreement Teresa Spence and Stan Louttit and other Treaty 9 First Nations leaders speak of is not the version propagated by Duncan Campbell Scott. Their understanding is that there were indeed two sides to the negotiations, two sets of accounts of what was said and agreed to. That version is a lot more like the one John Long analyzes in his book. Long did not subtitled his account of the treaty-making "The Agreement to Share the Land" for nothing.
Look more closely at the negotiations that lead to the agreement in 1905, John Long tells us, and Commissioner Scott's confident assertions start to dissolve. In George MacMartin's indiscreetly detailed diary, we read of headmen in 1905 who refused to make treaty, refused to be trapped on a postage stamp piece of reserved land, until Commissioner Scott was finally pushed into promising them that the land would always be theirs, that what Canada wanted in exchange for its gifts and goods and schools was access to use of it. The treaty text as written in Ottawa is a surrender text, for sure. But it's pretty clear that historical research confirms First Nations' history. What they talked about along the rivers and the seacoast in 1905 was a sharing agreement.
Think of the treaties that way, and we begin to see why Idle No More makes treaties central to what they want. See the treaties the way John Long lays them out inTreaty No. 9, and suddenly the Cree and Ojibwa are not beggars but landlords.
The wealth in northern Ontario, after all we have done to it, remains vast. Acknowledging the Treaties mean that the Cree and Ojibwa still have an ownership share in it -- that is pretty much what George MacMartin's diary and John Long's book say. And suddenly the people of those seemingly godforsaken communities in the frozen woods are not the poorest demographic in Canada. Establish their treaty rights, and they become one of the richest. They would not be kissing bureaucratic ass for every new trailer delivered. They could move to Toronto (or Florida) if they liked, they could take up schooling and business investment and resource development. But they would be owners, not beggars, and they would be self-sufficient, not waiting for the mercy and pity of a government, a resource community, a newspaper columnist.
Jonathan Kay is right in the Canadian mainstream, I think, and he offers the First Nations a council of despair. Admit you are beaten, be like us, accept our rules, forget about your homes. It is going to fail. Again.
I think Teresa Spense, who wants to keep talking about what Treaties really have committed us to, has the better sense of that one. We are all treaty people, as they say, but on our side of the treaty line we have not yet accepted what the treaty relationship really is.