With her book, Beyond Rights: The Nisg̱a'a Final Agreement and the Challenges of Modern Treaty Relationships, Carole Blackburn asks whether the modern treaty can reform the relationship between Indigenous peoples and Canada, in a way that is consistent with how Indigenous peoples have and continue to view treaties. By examining the Nisga'a Final Agreement and its implementation, she explores whether such a treaty is a nation-to-nation relationship that achieves mutual support and obligation without the assertion of absolute Crown sovereignty.
Beyond Rights focuses on the nature of the relationship in modern treaties. In contrast, other scholars have examined the consequences for Indigenous peoples of the treaty negotiation process and/or its results. In addition, Blackburn pushes back against conclusions by some scholars that modern treaties are only mechanisms of territorial dispossession and assimilation; she sides with the scholars that see settler colonialism as incomplete (6). She seeks to provide evidence through the Nisga'a case that there is room to resist settler colonialism in modern treaties.
Blackburn focuses on three aspects of the treaty that relate to whether a nation-to-nation relationship is realized: the nature and source of self-government, the nature and source of Aboriginal title, and citizenship (16). She explores each one of these in turn and shows that through often contentious and complex negotiation, an approximation of the desired relationship is achieved in all three of these aspects—Nisga'a law takes precedence over federal and provincial law in fourteen areas, the “estates in fee simple” right to land is a modification rather than a surrender of Aboriginal title, and Nisga'a control of Nisga'a citizenship “realigned the relationship between their rights as Indigenous people and their relationship with the Canadian state” (117).
In the fourth chapter, Blackburn examines the significance of treaties as a mechanism of reconciliation with a focus on the challenges of implementation. She shows that the Nisga'a, as well as other Indigenous peoples, have struggled with the multiheaded, byzantine structure of the state government, as well as state attitudes that view treaties as nothing more than strict, narrowly interpreted contractual obligations rather than associations of mutual support. Despite these challenges, she concludes that treaties remain one of the best means for establishing a multifaceted relationship between Indigenous people and other Canadians.
A strength of Beyond Rights is its breadth of potential audience. By having a chapter dedicated to each of the three specific aspects, this book provides sufficient background information on each so that those not well versed in the topic will comprehend the issues and the argument. This is important, as the challenges Blackburn identifies relate to not just state actor perspectives but also those of the average Canadian citizen. For many Canadians, reading this book will go a long way in understanding what it means to be treaty people.
A limitation of the book is that, at times, it might not go far enough into the details. For example, Blackburn mentions that there are fourteen areas where Nisga'a law is paramount without going into detail on the importance of these for Nisga'a self-determination. The reader is left wondering whether there are areas where federal or provincial law is paramount that might be inconsistent with a nation-to-nation relationship.
Another area where Blackburn could have gone deeper is in the discussion of how the different solutions might address the challenges of implementation. For her to conclude as she does that modern treaties are important for reforming the relationship between Indigenous peoples and Canada, there should be a path for overcoming the challenges of implementation. Without such a path, the argument for the importance of treaties is not as robust as it might be. The ideas she does provide do not include sufficient elaboration to provide a convincing argument. For example, how would a Modern Treaties Implementation Review Commission that she advocates for be better than the current Deputy Ministers Oversight Committee at addressing government structural issues or getting the government to go “beyond rights” and take a broader view of treaty obligations? She states it would be independent and answerable to Parliament (127) but does not show how this would resolve each challenge. Further elaboration here might show that there is a way where Canada might act as a treaty partner rather than an adversary.
Overall, Beyond Rights is an important addition to the literature on the relationship between Indigenous peoples and Canada. An underlying concern of Blackburn is the waning of the commitment of the federal and provincial governments (and some in academia) to making comprehensive treaties (5). By showing the potential importance of treaties in shaping the relationship in a way more consistent with reconciliation, Beyond Rights may inspire not only greater attention to the development and implementation of treaties but also improved means for doing so.
Competing interests
The author declares none.
