Manitoba aboriginal treaties as vehicles for self-government, sentiments and skepticism

Abstract

The method likely chosen by the Assembly of Manitoba Chiefs and the federal government negotiators to implement Aboriginal self-government in Manitoba is a framework agreement process. The objectives are to dismantle the Department of Indian Affairs and Northern Development, to develop and recognise Aboriginal governments and to "restore jurisdiction" to those governments. The original "numbered" treaties and the rights derived from them theoretically form the basis of this process. One potential effect of using treaty rights for this change is constitutional entrenchment without formal amendment. This study explores the legal basis of the original numbered treaties and the legal nature of the treaty rights, for the purpose of examining whether executive agreements are the best way to implement Aboriginal self-government in Manitoba. The historical and legal evidence suggests a royal prerogative source for Aboriginal treaties. It is from this basis that questions concerning the mixing of the law of fiduciary obligations with the law surrounding Aboriginal treaties are raised. This leads to an examination of "rights" and their suitability for anchoring a self-government scheme. This study concludes by questioning the legal authority of using executive agreements based on treaty rights to alter fundamentally the Canadian constitution without a formal amendment process.