Our head of state is in danger.
No, Justin Trudeau does not have COVID. Rather, it is the Queen who is vulnerable. Previously, few Canadians — only one quarter — could even identify her as our head of state. But when Meghan Markle told Oprah that a member of the Royal Family worried her baby’s skin would be too dark, Canada’s monarchy came under scrutiny.
Op-ed writers got busy. Many defended the monarchy, seeing it as part of “our” tradition, while others cautioned that eliminating it would be difficult, requiring the consent of the provinces. Missing from these discussions, however, were Indigenous people. The few who wrote about the institution warned that abolishing the monarchy would nullify treaty rights, since these were made between Indigenous people and the Crown.
Given Canada’s mistreatment of Indigenous peoples, such worries are justified. But the law is misread. As agreements with sovereign nations, treaties with Indigenous peoples are part of international, not domestic law. Consequently, they are subject to international legal rules.
When one form of government replaces another, the new government acquires the treaty rights and obligations of its predecessor. Thus, going from a monarchy to a republic does not affect Canada’s treaties with Indigenous people. To argue otherwise is to argue against Indigenous sovereignty.
The real issue is whether Canada will follow international law or not.
Treaties and the Crown
The Crown has a complex relationship with Indigenous peoples. It was the monarchy that colonized Turtle Island and engaged in genocide. But it was also under fierce Indigenous resistance that the Crown negotiated treaties. For this reason, Professor of Native Studies Niigaan Sinclair states that there is a profound “respect many Indigenous peoples, particularly elders, have for the Crown.”
Insofar as the Canadian settler-colonial state maintains control over their lives, Indigenous people must be consulted before abolishing the monarchy. It would be patronizing for anti-colonial settlers to do so without consulting those most impacted by its legacy.
Yet, in defending the rights of Indigenous people, some have resorted to faulty legal arguments. In the Toronto Star, historian Nathan Tidridge states that “abolishing the Crown […] runs the risk of fully realizing the goal of colonization: complete control over the land.” His argument rests on the fact that it was the Crown that negotiated and maintains responsibility for treaties. Thus, the argument goes, if the Crown is abolished, so are the treaties.
At first sight, this argument makes sense. Just as someone’s death will often terminate a contract, so too one would presume that removing the Crown from Canada would annul First Nations treaties. But treaties are not between people. They are between nations. Consequently, they are subject to international law.
Indigenous sovereignty, always
The failure to appreciate international law reflects a prevailing logic in Canada regarding the status of Indigenous peoples. Rather than being considered co-equal, Indigenous nations are viewed as subordinate to the Canadian settler state, and thus seen as falling under domestic law.
Yet, despite stolen land and genocide, Indigenous people were never conquered. No treaty was ever signed where they surrendered their sovereignty. In fact, the Royal Proclamation of 1763 and the Treaty of Niagara affirm Indigenous sovereignty. Some argue that these treaties were lopsided and intended for temporary appeasement. To the contrary, the Treaty of Niagara was negotiated with 2,000 delegates from 24 Indigenous nations. To demonstrate the sincerity of the treaty, the British gave annual presents, a practice that lasted for another century. For the British, the treaties were anything but a temporary measure.
Unfortunately, these treaties were violated through unilateral settler law. In complete violation of Indigenous sovereignty, the Gradual Enfranchisement Act in 1869 established elected band councils, which were under the authority of the Superintendent General of Indian Affairs. This was superseded by the Indian Act, which in the words of Mi’kmaq scholar Bonita Lawrence, regulates “every aspect of Indian life,” from self-governance to cultural expression.
But as Indigenous legal scholar John Burrows writes, “the supposed ‘increasing weight’ of colonial history and its disregard of the Treaty of Niagara does not render void the Aboriginal rights under its protection.” Similarly, under international law, when domestic law violates international law, the former is rendered invalid, not the latter. For these reasons, Indigenous nations are sovereign, despite settler law seeking to abolish them. And as sovereign entities, they are subject to international law.
One of the key principles of international law on treaties is pacta sunt servanda, which is Latin for “agreements must be kept.” Under this principle, a change in the form of government does not allow a state to annul treaty obligations. Although treaties are said to be made with “the Crown,” legally they are made with the Canadian state. The form of government this state takes is irrelevant. Thus, upon abolishing the monarchy, Canada would have to continue its treaties with Indigenous peoples.
International law: shield and sword
Of course, the security of Indigenous treaties rests on the presumption that Canada would respect international law. From military action in Afghanistan, to trade deals with Israel, Canada has a blotched record. With Indigenous treaties continuously violated, it is an open question whether Canada will respect pacta sunt servanda if it abolishes the monarchy.
The risks are real. And for this reason, international law is crucial. A violation of treaty rights is a violation of sovereignty. Sovereignty is so important to international law that its violation permits the right to self-defence. If Canada tried eliminating treaties upon abolishing the monarchy, Indigenous people would be entitled to defend their land. While the right to self-defence might not stop the RCMP, it does lend greater legitimacy to Indigenous land defenders, and delegitimize the actions of the settler state.
While international law is an imperfect legal system, it can be substantially beneficial for Indigenous people challenging the settler state. But such benefits are diminished when Indigenous struggles are treated as a domestic issue. This idea is perpetuated in arguments that abolishing the monarchy would abolish treaties. Only through the fiction that Indigenous people are domestic subjects could this make sense. Ironically, those worried about the impact of the monarchy’s abolition on Indigenous rights end up undermining them.
Aidan Simardone writes critically on counter-terrorism and state violence. He is a law student currently completing his Juris Doctor, and the recipient of the 2020 National Association of Japanese Canadians & Roger Sachio Obata C.M. Prize in International Human Rights Law and the 2020 Ursel Phillips Fellows Hopkinson LLP Prize for the best paper in Sexuality and the Law.
Image credit: National Film Board of Canada/Wikimedia Commons