Jean-Pierre Morin, (Historian, Treaty Relations Directorate, Indian and Northern Affairs Canada): Treating History and Policy: the role of public history in the development of policy for treaties in Canada.

Abstract:

Since the earliest period of contact between Aboriginal people and Europeans in North America, treaties and agreements have been concluded between them to formalise relations, establish commercial trade and expand settlement lands. For the past 300 years, Aboriginal people and the Canadian government have been struggling to understand each others perspectives and understandings of the meaning, rights and obligations stemming from these agreements.

As the Government of Canada works to develop policies to address the claims of Aboriginal people stemming from these treaties, there is a constant need to analyse and assess the countering interpretations of the treaties as well as the different policies and approaches implemented since the creation of Canada in 1867. The role that public history plays not only helps to prepare the groundwork for these future policies, but also as a way to evaluate the efforts of the past, with the hope of avoiding past failures.¹

Policy development is one of the central tasks of any large administrative structure. Policies are designed to address all manner of issues, from relatively simple instructions relating to filling out of a form, to massive and complex directives for negotiating with other bodies or establishing protocols between countries. The Government of Canada is no different than any other one of these administrative bodies or governments. Every day, the 400,000 public servants in Canada work on programs and services all guided by policies designed to assist Canadians and hopefully improve their lives. By and large, “policy analysts” form one of the largest groups within the public service of Canada. They develop the policies that attempt to solve outstanding grievances, address crisis, and plan for the future of Canada and its citizens.

Generally speaking, new policies, whether developed by governments or other institutions, are designed to have an impact on the future. In other words, they serve to guide future interaction, work and relationships. From this perspective, policy development can be considered as “forward-thinking”. Policy analysts look to bring in new approaches so as to change the course of a specific situation or issue.

For the most part, the work of policy analysts begins with a review of current circumstances and then builds towards changing or “improving” it. If one were to use the development of government policy as an example, the process begins with the identification of the issue or “problem”, an assessment of its impact, as well as the demonstration of the requirement to address the identified issue. From this starting point, further analysis is undertaken which will lead to the development of options for consideration by more senior members of government bureaucracy.

A fundamental aspect of the policy development is the analysis of the issue at hand generally through research and the compilation of other forms of data. The purpose of such analysis is always to understand the why and the how behind the issues central to the policy. In effect, government policy is a response to an issue and the balancing of the needs of many diverse stakeholders. The social needs of the citizenry (housing, employment or health care) requires research which is often of a social nature such as an analysis of socio-economic trends or census data, and the various positions of a variety of special interest groups, industry and constituents to develop a range of options.²

In many cases, the policy analyst is only trying to understand a relatively short time period of the background of the issue. Often times, the environmental scan looks at only a few months, as is often the case with sudden and unexpected issues, or at best, back only a few years for more established issues. In many cases, this cursory background review is sufficient to inform decision makers and politicians with the relevant information, as many of these issues do not have a long history. Senior officials often limit themselves to higher level issues; short and succinct briefing materials and the most critical and recent information from which to use for decision-making.

With that in mind, is there a role for history in the development of such policy? What value does an historian bring to this process?

While the approach described may be a fair demonstration for “new” or emerging issues, other issues need far more historical context before policy makers can make properly informed decisions. One such example in Canada relates to its Aboriginal population. While generally considered to be a young country, Canada’s relationship with its Aboriginal people is one stretching back over 300 years and is fraught with conflict, ever changing policies and attempts to rectify century old wrongs.³ This requires a different approach for the analysis and development of policies in government, to account for this special status and relationship.

In Canada, there is one national ministry dedicated to addressing the needs and concerns of Aboriginal People. Indian and Northern Affairs Canada⁴ has been in existence, in some form or another, for over 250 years making it the oldest administrative body in Canada. ⁵ While it may be one of the oldest administrative bodies in Canada, the policies developed and implemented by Indian and Northern Affairs Canada do not necessarily take into consideration the three centuries of history between Canada and Aboriginal people. In fact, in the opinion of many in the historical community, there is a collective “amnesia” within the Canadian government in regard to this history. This “amnesia” is two-pronged: a general lack of awareness of Canada’s history and the specifics of its relationship with Aboriginal people; and a somewhat unstated attempt at distancing the current policies designed to elevate and support Aboriginal people from the policies of the past which attempted to forcibly integrate and assimilate Aboriginal people into the broader Canadian society.⁶ Despite this, the history of Government-Aboriginal people relationship is one that permeates and impacts all policies and programs of the government of Canada. Consequently, because many policies do not take into consideration the historical reasons behind the issues currently faced by Canada’s Aboriginal people, new policies are often stop-gap measures instead of solutions to the fundamental cause of the problems faced by Canada’s Aboriginal people, as well as leading to duplication of programs and services, sometimes contradictory mandates and wasted funds and resources.

Compared to the rest of the Canadian population, Canada’s 1.1 million Aboriginal people rank amongst the most vulnerable and disadvantaged segments of Canadian society.⁷Across Canada, Aboriginal people have lower rates of income, lower levels of education and poorer health status and underemployment than any segment of society, particularly among women and children. Living conditions of Aboriginal people are also poorer than for average Canadians. For those living on reserves⁸, mostly isolated rural lands set aside by government for the exclusive use of Aboriginal people, jobs are scarce or non-existent, housing is often substandard, run-down or overcrowded, and social problems such as suicide, family violence, alcoholism and drug abuse abound.

In urban centres, Aboriginal people are often marginalised because of lower education levels, lack of work experience, racism and lack of access to safe and affordable housing. Aboriginal people in Canada, whether urban or on reserve, have some of the highest suicide rates of any segment of Canadian society.⁹ Local governance, while making important strides to improve their communities, is often hampered by complicated bureaucratic procedures which cannot be easily adapted to local circumstances and create added burdens to already taxed programs and services for community members. As is often stated in Canadian media, Aboriginal communities are similar in some respects to developing countries, within an industrial and developed state.

The hardships experienced by Aboriginal people is a direct result of centuries of policies meant to encourage and force them to abandon their traditional way of life so as to adopt a western or “British” lifestyle based on agriculture and Christianity.¹⁰ The policies developed first by the British colonial administrators of Canada in the late 18^th century and early 19^thcentury, and later by successive Canadian governments since independence from Britain in 1867, have all had one primary purpose – to bring “civilisation” to Aboriginal people and make them transition into a settler or colonial society.¹¹ Over the centuries, government officials proposed countless strategies and programs to bring Aboriginal people in off the land and to settle in villages: to abandon their “hunter-gatherer” or “pagan” lifestyle for the sedentary and agrarian European way of life. As with many European states with colonies around the world, steps were taken to bring Christianity to people and to bring them education through formalised schooling. While initial efforts were largely to encourage this change, after the passage of the Indian Act in 1876, the Canadian policies towards Aboriginal people grew to become increasingly restrictive and controlling. This law also gave government officials ultimate power over nearly all aspects of Aboriginal peoples lives - from the cradle to the grave. An education system was introduced which aimed to break the transmission of culture and identity from parent to child by taking children out of the home and educating them in residential schools far from their communities. At their core, these policies had the contradictory goals of isolating Aboriginal people on reserves while attempting to force integration into Canadian society. In the end, these policies did little except impoverish Aboriginal people and strengthen their resolves to fight all attempts to erase their culture, traditional languages and identity.

Every policy developed, every program implemented and every decision made by public servants working in the Department of Indian and Northern Affairs Canada is rooted in this heritage of assimilation and forced social change. However, the forward looking nature of policy development is hampered by a lack of the full and complete analysis of the causes of these problems. This is often due to the fact that policies under development address issues when they garner public attention. In many cases, new policies, without complete historical analysis, can be simply stop-gap measures to address faults in past policy initiatives.

For a policy to address a grievance dating back over 150 years, it needs to have a different type of analysis. As Albert Einstein noted, “We can't solve problems by using the same kind of thinking we used when we created them.” However, most public servants are not equipped to undertake the complex and innovative work required for Aboriginal policy development, as many have no historical research and analysis background. Policy analysts are neither expected to know effective and efficient research methods, nor are they familiar enough with the broader context to provide a well-rounded historical analysis.

Policy decisions relating to Aboriginal policy development requires that all possible information be considered as the basis for the new policy. We must know the past to understand the present, in order to support reconciliation and develop good policy, programs and decision-making for the future. With such long standing issues, the analysis of competing historical perspectives and narratives become a fundamental part of the policy process. Through a historical narrative, a general understanding can be developed which leads to a specific examination of the issues at hand.

The Role of the Public Historian

With this in mind, the role of the public historian within such a policy machine is two fold. Firstly, to place specific issues within the broader context of the past policies of government. Secondly, to assist policy makers in understanding the specific historical elements of these issues through a close and detailed presentation of the historical facts and competing perspectives. This permits a more complete in-depth understanding of the issues and therefore more responsive to the true causes of historical grievances.

To further complicate the matter, the grievances and difficulties of Aboriginal people in Canada are steeped in an historical perspective often contrary and difficult to reconcile with broader Canadian points of view. When Aboriginal leaders call upon government officials and politicians to address their needs, they place their grievances firmly into an historical narrative largely contrary to the government of Canada’s perspective.¹² From this perspective, the historical context is not only the background to the issue, but in many cases, is the issue itself. This creates an added complication and complexity for policy developers. Those policy analysts, trained to consider the short term causes of issues and trying to focus on a single issue, now must try to understand the historical genesis, perspective and implications of several different policy issues. Furthermore, without someone knowledgeable of historical method and familiar with broad historical interpretation, a proper understanding of the historical elements of the issues could well be lost upon policy officials, legal counsel and decisions makers.

As a case in point, the problems of developing coherent and responsive policies relating to agreements, know as “Indian treaties” concluded over a 300 year period, will serve as the backdrop for this example. These treaties were concluded between 1701 and 1923 between different Aboriginal groups and the British, and later Canadian governments, in order to establish military and commercial alliances, restore peaceful relations after war and conflict, and to open lands to European settlement across Canada.¹³ While the terms of the treaties vary, on the whole, they created specific rights and obligations upon both parties. In addition, these treaties are protected by Canada’s Constitution since 1982, and form the basis for a long lasting and important relationship between Canada Aboriginal and non-Aboriginal peoples.

Over the course of the past 40 years, Canada has done considerable work to change many of its policies relating to Aboriginal rights, services and programs. Policy work on treaties, however, has been mired with difficulties and setbacks. This is due largely to problems of legal and historical interpretation. For many, the treaties concluded between Aboriginal people and the various administrations in Canada tend to be viewed as completely self-contained events with a single and straightforward intent by the historical actors to them. For example, policy analysts working on issues relating to these treaties see them as agreements where Aboriginal people agreed to sell their lands to Canada in exchange for payments and ongoing rights and benefits. Policy analysts, legal counsel and senior officials do not generally consider the role of treaty-making within the broader policies of assimilation of that particular era, but rather as a separate and largely unrelated process – a distant period in history. This perspective not only leads to an incomplete understanding of historical treaties and their purpose, intent and obligations, but also can lead to significant misinterpretation of the treaties as a significant part of Canada’s historical approach and relationship with Aboriginal people.

As with all historical events, these treaties must be placed within the broader historical context of European colonisation; the development of Canada as an independent state; the policies of assimilation, and; the changing relationship between the State and North America’s indigenous peoples. In an attempt to expand the often narrow perspectives of policy makers, the public historian must be ready to educate public servants.¹⁴ This education and training is through developing and providing historical information with the key aim to building a more fulsome understanding of the context of these historic agreements.

The “Treaty Problem”

By attempting to hive off the specific issues stemming of treaties from the other issues faced by Aboriginal people, it is hoped that the “treaty problem” can be addressed without negatively impacting on other policies and programs. This approach, a type of “divide and conquer” mentality, presupposes that issues such as treaties are distinct and largely unrelated to other issues. The ultimate goal is to “fix” each problem one at a time eventually addressing them all in due course. While such an approach may be possible with an issue with a relatively short history, it is largely ineffective when considering issues with a long heritage. As can be seen by examining the issue of historic treaties, the issues at hand are based upon century long practices which were done in collaboration with, or parallel to other policies and programs of government. It would be best to consider these historically-based issues as threads in a tapestry – tugging on one individual thread pulls on the entire tapestry.

When one considers the evolution of treaty-making in Canada between successive governments and different Aboriginal peoples, it is necessary to not only examine the how and the why of the treaty signing, but also other factors influencing the process. For example, the process of treaty-making in Canada can be divided into four distinct periods over a 300 year timeframe:

• Treaties for peace and commerce concluded between 1701 and 1763;

• Treaties for land settlement concluded between 1763 and 1862;

• Treaties for western expansion concluded between 1871 and 1923, and;

• Treaties for comprehensive claims concluded since 1975.

If we were to examine the third period, treaties for western expansion which covers a 53 year period between 1871 and 1923, we see several “treaty-specific” reasons for their conclusion, such as transferring Aboriginal land rights to the Canadian government and the protection of specific rights and benefits to Aboriginal signatories.¹⁵

These reasons, however, do not provide a full understanding as to why the treaties were concluded during this period. Firstly, Canada was looking to open the western lands to settlement by acquiring Aboriginal land rights to ease access to the natural resources of the North American plains, as well as prevent American expansionism into Canadian territory.¹⁶ It also ignores that Aboriginal people themselves called upon Canada to negotiate treaties and come to their aid because of the collapse of North American bison herds and the spread of European diseases. Furthermore, the treaties were also vehicles for the Canadian government to apply assimilationist policies upon Aboriginal people once they had settled upon lands reserved for their exclusive use. By settling on these reserves, governance structures were imposed upon them, spiritual practices became banned and traditional practices were replaced by agriculture, often through forced work and withheld rations necessary for daily survival.¹⁷

But why is this of any relevance to the development of a policy relating to these treaties? The policies being developed relative to these treaties must take into consideration these contextual elements when analysing the various factors at the core of issues. In many cases, these contextual elements appear to be secondary to those people sitting in offices debating their relevance. The context allows the policy analyst to understand not only the history of the issue at hand, but also to realise that a policy on treaties will also impact upon other issues. Furthermore, such context will allow public servants to better understand the reasons for Aboriginal grievances.

From the perspective of Aboriginal people, these elements are just as important as the specific “treaty” elements. They argue that grievances relating to treaties are interwoven with the broader issues created by Canada’s Aboriginal policies. For the descendents of Aboriginal signatories, the treaties form the basis of their relationship with the Canadian government.¹⁸ In addition, the policies of assimilation imposed upon them are considered violations by Aboriginal peoples of their treaty rights, and a corruption of the very nature of the Aboriginal-Crown relationship intended to flow from the treaties. A policy analyst at Indian and Northern Affairs Canada may be trying to draft a policy initiative which address one specific aspect of the treaties, such as where Aboriginal people may hunt under the terms of their treaties. In reality, though, this analyst must consider many historical and contextual issues such as 1) how assimilation policies tried to wipe out the knowledge of traditional hunting practices, 2) how Aboriginal people were prevented from leaving their reserves to go hunting, and 3) how government officials had quasi-arbitrary powers to arrest and detain Aboriginal people deemed to have broken the law.

A new policy could impact not only one issue, but several issues likely to inflame other issues with unintended consequences.

The Public Historian’s role in Treaty Policy

A policy issue such as treaties also has a separate layer of complexity from other issues being addressed by officers of Indian and Northern Affairs Canada. As mentioned, many of the issues and problems faced by Aboriginal people in Canada are a result of policies and decisions imposed upon them by government over the course of two centuries. Treaties are an expression and tangible product of the relationship where Aboriginal people and the government came together to conclude agreements. From this perspective, one would think that the treaties are something that both parties agree upon. Unfortunately, this is far from the case. In many respects, the treaties are the most divisive issues between Canada and the Aboriginal signatories. Disagreements arise from elements such as the intent of the treaties, their scope, the meaning of the rights flowing from them, and their interpretation in a modern context. It would be safe to say that the only thing they do agree upon is the fact that an agreement was concluded on a specific day; just about everything else, is open to interpretation! Exactly how the two perspectives have diverged leads to considerable frustration for government officials and Aboriginal people alike. As any policy addressing treaties must respond to both the needs and interest of Canada as well as Aboriginal signatories, policy analysts are constantly struggling with the very specific question of why the perspectives are so divergent. Such a question can only be understood through a thorough examination of the evolution of those perspectives.

The perspectives themselves can be broken down into three separate elements; 1) the intent of the treaties; 2) the interpretation of the treaties; and 3) the implementation of the treaties. While distinct, these three elements are intertwined with the understanding of one automatically impacting the understanding of the others. If we were to consider those treaties concluded between 1871 and 1923, after Canada gained its independence from Britain, the differences in the perspectives are most apparent. For the Government of Canada, the intent of these treaties was to secure the Aboriginal title to the lands of Western Canada so as to assert its sovereignty and control over them and facilitate peaceful settlement with minimal impact upon the area’s Aboriginal population.¹⁹ For Aboriginal signatories, the primary purpose of the treaties was not to cede their rights over the lands in question, but rather to share the lands with the newcomers in a peaceful manner as well as to assist them in adapting to the new settlers society while continuing to practice their traditional activities.²⁰

With respect to the interpretation of treaties, Canada has, since the date of signing, stated that the treaties are legally binding documents which clearly set out the terms, conditions, rights and obligations of both parties. As with other legal documents, the scope of the treaty terms is strictly limited by the written document. Aboriginal signatories contend that the treaties are not simple legal documents but sacred and solemn covenants concluded by three parties: Aboriginal people, the Crown and the Creator. The understanding of the treaty promises are not limited to the literal text but are adaptive and amendable concepts of beneficial aid and sharing of benefits.

Finally, as it views the terms of the treaties defined by the text itself, Canada believes that the treaties have been largely implemented to the letter of the text, and has established a process to address any shortcomings of its obligations.²¹ On the other hand, Aboriginal signatories perceive the government’s implementation as incomplete, insufficient and not responding to their interpretation of the treaty promises. These differing perspectives are firmly rooted in the evolving historical narrative of the relationship between Aboriginal and non-Aboriginal Canadians.

The policies being developed by Indian and Northern Affairs Canada relating to treaties are, at their core, trying to bridge the difference between the Government and Aboriginal perspectives. To do so, they must be informed and guided by the competing historical narratives so as to respond to the historical grievances of Aboriginal people and meet the interest of Canada to promote growth and development. Detailed historical research which presents not only the background, but the explanations into how these perspectives have evolved, allows policy analysts to better ground their work and make it more responsive, more appropriate and hopefully, properly address the issues at hand. A policy relating to treaties must take these differing perspectives into consideration.

The public historian must, therefore, demonstrate the genesis of these perspectives and explain how they have evolved.

By properly understanding this evolution, policy makers will be more responsive and flexible to the needs of government and Aboriginal people as well as the impact of their policies. Let us consider the concept of intent of the treaties as an example. While there is little disagreement as to fact that an agreement of some nature was concluded between representatives of the government and certain Aboriginal groups, there is sufficient evidence to indicate that there may not have been a complete meeting of the minds as to the purpose of the treaties.

From the British and Canadian government perspectives, the intent of treaties is relatively straightforward. One of the primary reasons for British settlement in North America was access to virgin lands. Contrary to the lands tenure system in the United Kingdom, ownership of land in fee simple was a central tenant of the colonial system. Settlers rushed to the frontier to make their stake and clear lands traditionally held by Aboriginal people dependant upon game for hunting and fishing.

In less than a century, the frontier had pushed far inland, putting settlers into conflict with dispossessed Aboriginal groups. In an effort to reduce land frauds and encroachment, steps were taken to control how settlement could grow in the colonies. Since 1763, colonial and later Canadian officials were guided by protocols and regulations established by Royal Proclamation stating that prior to open lands to settlement or development, Aboriginal interest must be ceded to the Crown through treaty.²² For the 150 years which followed, government officials negotiated some 65 treaties either in advance of settlement or to cover lands already overtaken by settlers. The treaty texts all have some variant language such as found in the 1850 Robinson- Huron Treaty:

they the said Chiefs and Principal men, on behalf of their respective Tribes or Bands, do hereby fully, freely, and voluntarily surrender, cede, grant, and convey unto Her Majesty, her heirs and successors for ever, all their right, title, and interest to, and in the whole of, the territory described… ²³

Through this document, the government viewed all Aboriginal rights and interests in the lands described in the text as being extinguished and replaced with the specific rights and benefits outlined in the treaty.²⁴ Aboriginal people could live on the reserve lands set aside for their exclusive use while the government was now free to divide the land and sell parcels to settlers and developers. The treaties were part of a process to allow unfettered access to lands and development of Canada’s natural resources while resolve outstanding Aboriginal rights and assure some lands for their exclusive use. Whenever questions were raised as to existing Aboriginal claims or rights over these lands, Indian Affairs officials have consistently replied, and continue to do so to this day, that the treaties have ceded and surrendered all existing rights.

During the early period of European colonisation, Aboriginal people throughout North America struggled to assert some control over the lands they had traditionally occupied for centuries. In the face of land-hungry settlers, they occasionally fought back, vainly trying to push back the tide of British, French, Dutch and Spanish colonialists. On the whole, they attempted to negotiated agreements with the newcomers to allow a joint usage of the land, both for European settlement and Aboriginal hunting and gathering. As settler population grew, Aboriginal lands were forever being encroached upon leading to increased tension and frequent violent clashes.

When the British Royal Proclamation was issued in 1763, Aboriginal people believed this to be the start of a new period where lands would be shared. During treaty negotiations, several leaders stated that they welcomed the settlers to “come and live” among them.²⁵ The chiefs and leaders of the various Aboriginal groups believed that the treaties would allow them to live alongside the newcomers while continuing to practice their traditional way of life. In the years following conclusion of the treaties as an increased number of assimilationist policies were imposed upon them, they realized that the treaties ceded their interest to the government. Aboriginal signatories began calling upon the government to honour the promises to share the land and allow both parties to benefit from the riches of the land.²⁶ Coupled with restrictive policies which hampered their economic growth, and the sight of other benefiting from the wealth of their traditional lands, Aboriginal leadership continues to argue that Canada refuses to acknowledge the “true” intent of the treaties.

Providing this type of historical information is the first part of the public historian’s role in the policy development. An historian working within the public service is not only a gatherer of historical information who writes research reports. The public historian must also “translate” this historical information into a “policy” perspective. In other words, to demonstrate the relevance of the history of the issue to the policy maker.

The historian needs to demonstrate how the evolving perspectives have contributed to the issue being addressed by the policy. In the example of the intent of the treaties, the historical analysis must show how the government’s goal of securing its exclusive control over the land conflicted with the Aboriginal peoples’ goal of securing their wellbeing and access to their traditional lands. The public historian must demonstrate how the effective control of government over the lands and resources described by the treaties without considering the interests of the Aboriginal signatories lead to a further hardening of the differing perspectives. As both parties to the treaties strove to assert their interpretation, surrender of the lands versus sharing of the lands, ever more controlling policies were imposed upon Aboriginal people who refused to be assimilated into the broader Canadian society. Through this presentation of the elements which would have a deep impact upon the policies being developed, the public historian provides the core information required to complete well balanced and effective policies which respond to the actual heart of issues.

Conclusion

The role of historical research and of the public historian is not always evident within the public service. In many respects, the management of the daily business of government does not require in-depth historical analysis of all issues and files. When new policies are developed, however, the need for relevant and effective information becomes essential particularly where legal risk is under examination. While not all issues are of an historical nature, many are rooted in longstanding grievances. The Canadian government’s Department of Indian and Northern Affairs must constantly deal with these types of issues. Its policy analysts and managers must consider the historical evolution of grievances and problems. The public historian must play the dual role of provider of historical content and information as well as policy analyst responsible for bridging historical and policy perspectives for sound policy development and advice. The public historian shows the relevance of historical events and perspectives on contemporary and ongoing issues by demonstrating the fundamental impact of the past upon the present. Armed with this added level of analysis, policies can be developed which are responsive to the needs of government and Aboriginal people while addressing the true nature of the issues at hand.