Law360 Canada (May 4, 2026, 11:36 AM EDT) --

Joan Jack

First-year property law, 1988. Two hundred students. I could feel the energy in the room of young people excited to have made it into UBC law school. Professor Tod enters and slams the door. Walks over to the podium and scans the room while saying, “All title is vested in the Crown.” I felt like he was looking directly at me or even searching for visibly First Nation students as if to say, “We will not be tolerating any uppity Indians in this course!”

Thirty-eight years later, I’m legal counsel to the Treaty 5, and I’ve been thinking about the whole “cede and surrender” thing. I’ve been thinking about it for years. When I ran for the Assembly of First Nations national chief in 2012, I said, “I can’t believe my ancestors would have given up all our land for five bucks and some lard!” No way.

Commissioner Alexander Morris himself records that he was at Berens River on Sept. 20, 1875, when Treaty 5 was signed. His records also show that he was in Berens River for one or maybe two days before paddling off north to Norway House, arriving on Sept. 24, and Grand Rapids on Sept. 27. Anyone who knows Lake Winnipeg would say “Holy! They were paddling hard!” This speedy trip purportedly captured almost half of what we now know as Manitoba. There were also Adhesions to Treaty 5, but I’m not sharing about that right now.

Incidentally, his contemporaneous records also show that he was with those who signed Treaty 3 for two to three months. A stark difference. I wonder why?

Over the years, I’ve been thinking and learning more about our own worldview and laws that flow from our ontology. Simply put, I’ve been taught that I am my land. If I hurt my land, I hurt myself. I know that I am in a symbiotic relationship with my land that defines who I am as an Anishinaabekwe (human woman). My sovereignty is inherent and it is relational and identity based, not about benefits first.

In property law, I learned that all title is vested in the Crown. From that ontological perspective, humans are above the land and separate from the land. At best, people see themselves as stewards and at worst see themselves as entitled; and these perspectives are reflected in Canadian law. A legal land title system that determines who benefits, how, where and when without the necessity of personal relationship within those lands. Human beings are legally separated from land, and who they are is determined by the “right” granted them by the Crown (fee simple, access to parks, etc.) or licences to profit from lands and resources (corporate industry).

Prior to being called to the Manitoba bar, Tobasonakwutiban (Peter Kelly), whose daughter was also being called to the bar, organized and conducted an Anishinaabe ceremony in the rotunda of the Manitoba legislature. The Whitefish Bay Drum sang several songs that echoed through the parliament building. He said to the eight or nine of us that were First Nation and becoming lawyers, “I am calling you to our law first. To always serve your land and your people.” Then he gave us each a white eagle feather with a black tip. We were all humbled and honoured. He said, “Tomorrow you will swear allegiance to the Crown, but I got you first!” We all laughed.

Almost immediately after becoming legal counsel for Treaty 5, I had a powerful dream. You know how when you have a dream that’s scary, you wake up and still feel a little frightened? Or you have a beautiful dream of a peaceful place, and you wake up feeling peaceful? Well, all that I saw in my dream was a huge image of the treaty medal. I felt so much power. I began praying, asking what it meant. I was left with such a feeling of power and that I am grounded in that power. I am my land. In a few days, I knew it was our ancestors telling me that the treaty medal was important legal evidence of how we understood our treaties. So, I started researching, asking how the treaty medal came to be.

What I found was that the treaty medals were forged in London at the order of the Crown. At that time, the U.K. created medals as a way of commemorating legal relationships. Looking at our medal, you see, “As long as the sun shines, the rivers flow and the grass grows,…” which is in the actual text of Treaty 5. You see two men portrayed as equals shaking hands. The man on the left is an official representative of Queen Victoria and a man on the right represents our ancestors. The Queen’s representative also has his left hand on his heart. I wondered if that handshake and hand on heart symbolized anything legal in 1875. Research showed that, in fact, it did. A hand on the heart represents truth and the honour of the Crown, which SCC case law today says is still pretty important.

So, from our ontological view and laws, it is impossible to “cede and surrender” our lands because, said another way, “The land and the people are one.” The idea that land is alienable does not exist in our ontology and law, unless we had been defeated in war by another tribe. Our law says we are to be kind and share, while other cultures see those ideas as values, we know they are laws.

Let’s keep looking at the treaty medal and what the Crown wanted us to understand. We were equals and were to prosper together as equals “as long as the sun shines, rivers flow and grass grows.” We agreed to share. We agreed to be kind and lay down our weapons, promising not to attack the subjects of the Crown. A tomahawk is clearly shown between the two equals. What has happened since then is not what we agreed or what the Queen promised as commemorated in the treaty medals. Instead, we have inherited generational trauma and poverty, while others within Canada have created generational wealth for their descendants at our expense.

The common law, based on an ontology and a legal system not ours, was placed upon us through legislated force (Indian Act, NRTA, etc.) and is still enforced by the RCMP and the Canadian Army if we get out of hand trying to protect ourselves. In law school, I remember asking, “What if it’s the wrong law?” And, what if it’s the wrong policy, or policy is being used by bureaucrats as if it were law?

We live in a country that has had its sovereignty delegated by the U.K. and, despite the Canadian Charter of Rights and Freedoms, remains a constitutional monarchy, and King Charles III is Canada’s King.

My husband’s Auntie was a philosopher and wise woman. I loved asking her what she was thinking. One day, I said, “What are you thinking, Auntie?” Without missing a beat, she said, “I was thinking that white people are the only ones I know that can write down a lie and it comes true!”

My hope is that after you read my thoughts, and of course there is so much more I could share, that you stop saying “unceded territory” in places where there are no treaties and that you think about what I’ve shared from my heart, my land.

Joan Jack is an Ojibway woman and member of the Berens River First Nation in Manitoba. She is also married and adopted into the Taku River Tlingit First Nation in B.C. She is a mother to many children, a grandmother and auntie to many more. Besides being a lawyer and educator, Joan is an activist and is proud to say stands for Indigenous women always and has most recently created a private Facebook group to bring together Indigenous grandmothers and aunties and her group now has over 20,000 members and an average activity rate of over 80 per cent. Learn more here: www.nakinacall.ca

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