Category Archives: Indigenous Treaties

Heaven and Hell in Huckleberry Finn


Huck Finn, like Mark Twain, was not really that keen on heaven.  Twain also pursued this theme with his classic sense of humour in a wonderful essay called “Letters from the Earth.” It is well worth reading.

In many ways, hell seemed more attractive to Huck than heaven. As he thought to himself after Miss Watson tried to extoll the benefits of heaven to Huck, “Then she told me all about the bad place, and I said, I wished I were there.” Miss Watson said it was wicked to say that. But in his resolve Huck remained firm: “I couldn’t see no advantage in going where she was going, so I made up my mind, I wouldn’t try for it.” Why try hard to get to a place that really didn’t seem that attractive? But Miss Watson did not give us so easily. But neither did Huck. Twain described their spiritual tussle this way:


“…she went on and told me all about the good place. She said all a body would have to do there was to go around all day long with a harp and sing, forever and ever. So I didn’t think much of it. But I never said so. I asked her if she reckoned Tom Sawyer would go there and she said not by a considerable sight. I was glad about that, because I wanted him and me to be together.”


Once again, Huck was prepared to go to hell for a friend. Friendship was more important than religious ideology. Even an ideology he had been swimming in since birth and even though it came with powerful religious artillery. He even wished his friend would be in hell to keep their friendship intact.

Fear and Trembling


I love autumn and in particular the maple leaves of autumn.  What is more beautiful?

The Canadian federal government in 1876 introduced the Indian Act. It has been amended a number of times since then, but is still on the books. That statute gave the federal government authority over indigenous people. Indigenous people were shocked by the introduction of that statute, since many of them had recently entered into treaties which they thought guaranteed them sovereignty over their own lands and peoples while agreeing to share (but not cede) the land with non-indigenous Canadians. That law actually gave the federal government the authority to completely control the lives of indigenous people in Canada. That statute gave the federal government the power to take away indigenous children from their homes and send them to church run government funded Indian Residential Schools. There were eventually more than 140 residential schools across Canada. 150,000 indigenous children were taken from their families and sent to these schools often at considerable distance from their home communities and far away from their families. The last school closed in 1996. Again, this is not ancient history. This is yesterday. And the ill-effects of those schools live on in the lives of descendants of the survivors.


The Indian Act is a piece of legislation that amounts to the extreme use of colonial power and paved the way for exploitation of indigenous people. It is based on the false notion that whites were superior to indigenous people. I will have more to say about that legislation in future posts.


Children are still leaving their homes and families and communities just to get an education.  Now they do it by “choice.” Many go to places like Thunder Bay where they are the objects of powerful and deep racism. Of course, indigenous people are compelled to go there by economic circumstances. Many of these modern students report that they feel unsafe in places like Thunder Bay. One said, “I feel like I have to look over my shoulder every second, or I’m going to, you know, get hurt.” Many are scared because they know of others who have gone missing.

Of course, the 7 deaths of indigenous students in the Thunder Bay area brought painful recollections of Indian Residential Schools where often young children were sent to schools far away and never came home. Was this not comparable to that? Were we living through another heinous event like that?

Pays Plat 51 Reserve: Where the water is shallow

Pays Plat River Northwest Ontario

There are an amazing number of First Nations in this region of Northwest Ontario through which I traveled. One I had never heard of before was the Pays Plat First Nation. It is a small first nation near Rossport, my final destination on this trip. According to the First Nation’s website, The Pays Plat 51 reserve is in the boundary of the territory described in Robinson Superior Treaty of 1850. The community is now found alongside the Trans-Canada highway.  I stopped because it had a lovely little river with a church beside it. How could I resist photographing it?

The ancestors of the current first nation survived by hunting, fishing, and trapping. It was deeply involved in the fur trade. The name “Pays Plat”  comes from the French and means flat land. It is between 2 mountains. Modest sized mountains of course, as befits Ontario.

In the Anishinaabemowin language, the community is known as Baagwaashiing which means “Where the water is shallow.” To me the little village was a delight.

The Robinson Treaties, of 1850 also known as the Robinson-Huron and Robinson-Superior Treaties saw Canada secure almost all of northwest Ontario for settlement and resource development. New in these agreements were provisions made for reserves based on sites chosen by Indigenous leaders. These Robinson Treaties  are credited with laying the foundation for what later became known as Western Canada’s Numbered Treaties. Treaty making during this period was not just confined to the eastern and central areas of what would become Canada.



A treaty is a legally binding agreement outlining the rights and duties of its signatories and is protected by international law. Negotiated and agreed to by two or more sovereign nations, treaties are formal agreements used to reinforce and protect relations between those parties.

In North America, Indigenous societies and colonial powers often held divergent traditions and understandings on the composition and structure of these agreements. These understandings were informed by their own social, political and economic norms. Far from homogenous, pre-colonial laws, customs, and practices informed Indigenous treaty agreements, like that in Gusweñta. Many of these principles were shared among Indigenous nations, ensuring that all parties upheld their obligations. Many Indigenous nations recognize this treaty legacy and continue to advocate that the original intent of these agreements with the Crown, and then Canada, be honoured.


Conflict between competing empires often made its way to North America, and almost always involved Indigenous peoples. The French and British each had their supporting allies among the indigenous people. The Great Peace of Montreal serves as but one example of an agreement that brought to a close prolonged periods of conflict. Signed in 1701 between New France and forty (40) Indigenous groups of Central and Eastern North America. This treaty ushered in several years of peace. Treaties such as this lay the groundwork for peace and cooperation between colonial powers and the areas Indigenous populations, and were tested and fractured time and again when European rivals clashed overseas and brought their conflict to the Americas.

Key differences in treaty making during each of these phases is a direct result of the economic, political, and social dynamics that emerged as colonial and later state powers competed for control of the continent. As trade relations, wartime diplomacy, increasing land settlement pressures, and resource development increased, so too did the need for officials to deal with the question of Indigenous land title. As Leanne Betasamosake Simpson said, treaties were always about land.


And what struck me most on this jaunt through God’s country was that the land was beautiful. Unbelievably beautiful. Worth cherishing. I am not always sure that Canada appreciated how the land should be cherished. Canadians by and large wanted to exploit the land, not cherish it. I am not sure that was always the right approach. Often I think we need a new attitude to nature. I have blogged about that. I want to blog a lot more about that. I think it is a crucial concept.


Wampum Belt: We’’ll Work Together



On my jaunt past Thunder Bay I started to see a few red maples.  What says autumn more than a red maple? We get very few of these wonderful autumn leaves of red maples in Manitoba. In fact, to my surprise, since I know there are some just past Kenora, I was surprised that I did not encounter these until I was past Thunder Bay. But eventually they were evident in all of their splendour.


The Two Row Wampum Belt of the Haudenosaunee people, also known as that Iroquois, is a great example that illustrated one way that Indigenous peoples recorded and preserved their laws and government systems. The Two Row Wampum Belt is made from either whelk shell, quahog, or hard shell clams. The belt’s rows of cylindrical purple and white beads are bound together with hemp that runs its full length. It was these belts and their intricate beadwork designs that served as the foundation for all other treaties and agreements between the Haudenosaunee and the colonial representatives.


2 row Wampum Belt

In addition to confirming an individual’s credentials and authority, these belts also served as one of the first methods used to document oral agreements. Today, they also act as evidence of pre-existing Indigenous diplomatic relationships. Wampum belts were used as mnemonic devices to record important events and were often brought out for official gatherings and sacred ceremonies. Indigenous laws were also recorded within the patterns on these belts. Items like masks, medicine bundles, birch bark scrolls, petroglyphs, and button blankets, although primarily spiritual in nature, could also record and preserve legal traditions.

Named Gusweñta, this two-row wampum belt serves as a symbolic and binding agreement that was made in 1645 between Haudenosaunee leaders and Dutch colonial officials. When the Dutch began making incursions into Haudenosaunee territory, Mohawk runners traveled to Onondaga to request a meeting among the Haudenosaunee leadership to determine how to deal with these new uninvited guests. This belt represents the outcome of subsequent meetings between Haudenosaunee representatives and Dutch officials. Like other wampum belts, this living treaty is made of purple and white wampum beads. The three rows of white beads each represent the shared tenants of friendship, peace, and forever. The two parallel rows of purple represent two vessels. One row embodies the Haudenosaunee, their people and their life ways. The other row stands for the Dutch, their people and their life ways.


Later other First nations adopted the wampum belts as well.

The image on the wampum belt was two boats on the same river. Pam Palmater in the film Colonization Road gave one of the best explanations of  the wampum belt:

“The whole Wampum belt concept of we’ll work together, we’ll share this place, but I will steer my boat and you will steer yours, and never will we try to interfere with one another. I think that’s the most critical fundamental message that has since been recognized by the Royal Commission on Aboriginal Peoples, the United Nations Declaration of the Rights of Indigenous Peoples. It’s basically self-determination. Recognizing however whatever English word you want to use nationhood, sovereignty, self-determination. It’s we will take care of ourselves, and govern ourselves and you do your business and we’ll work along cooperatively in the areas that we have to. And what a wonderful vision for Canada. And I think that is the original vision. We don’t need any new ideas to save Canada, we just need to go back to that original wampum belt, and recognizing each other’s abilities to govern ourselves and protect one another.”


But sadly, that was not the vision of the Canadian government. Immediately after the first treaties were signed it enacted the Indian Act to impose its vision of how the “Indians” should conduct their affairs in this white system and foisted it upon them without their consent. The vision of the government was that European whites were superior, and Indians should assimilate with them. They should become like us. They should do things our way. Many non-indigenous people still believe this. They should do things our way, because we know best what’s good for all of us. But it is not what Indigenous people wanted and was not what they thought they had agreed to.

 Indigenous people began to see colonialism as the whites putting their foot on the throats of indigenous people. And they believe that is ongoing to this day. That of course is what the Indian Act is all about. It is about dominance.

Meandering in God’s country: Sacred Treaties


The land and lakes around Thunder Bay are extraordinarily beautiful. I made many stops to photograph them. It really did feel like I was meandering in God’s country.

In the morning in Thunder Bay after my first night on this inferior jaunt to Superior, in the breakfast room of my hotel, I met a couple from Steinbach. It is a small world. They were also visiting to see the autumn colours. I met a nurse from North Vancouver who heard me complaining about hotel prices in Thunder Bay. She said if I could not find a place, I could bunk in with her. She was either the nicest or most naïve woman around, or perhaps she was overwhelmed with my good looks and charm. I later told Christiane she should be paying me more respect as I was obviously a very desirable man. She seemed entirely unimpressed.


Cuyler Cotton in the film Colonization Road had some interesting things to say about indigenous relations with settlers.  He said, “the lesson of the treaties is that we have a deal. We have a sacred agreement you and I, that we’re supposed to live here together in this place for as long as the waters run.”

It is also noteworthy that the treaties were hard bargained. The First Nations were shrewd negotiators. Some think they were in a weak position. If that is true, and I don’t think they were, they sure managed to bargain well. Both parties got a good deal. Sadly, one side, Canada, often did not live up to its bargain. It has not always been honourable. The honour of the crown has often been threadbare.

Those treaties were written in English, but also contained indigenous elements. They were only written in English because the First Nations had largely unwritten languages. But the treaties included things like a Wampum Belt. It is not a European custom to have such things in treaties.

For example, according to Palmater,  “the Treaty of Niagara wampum belt is a founding document of this country and should be treated as such.” This is what the Canadian Encyclopedia says about it:


“In July and August 1764, sir William Johnson and approximately 2,000 people, representing approximately 24 First Nations, met at Niagara to discuss an “alliance with the English.” The discussion led to the acceptance of the Royal Proclamation of 1763. It also included one of the first land cessions under the Royal Proclamation’s protocols, a return of prisoners, and an accepted British presence in the Great Lakes area. The resulting treaty was recorded in wampum. In the contemporary era, the 1764 Treaty of Niagara is not recognized by the Canadian government but is seen as a foundational document by First Nations for all subsequent relations and treaties.”


When the English conquered New France in 1760, England realized it had to ensure a peaceful settlement with First Nations of the regions. It could not afford the ruinously expensive “Indian Wars” the Americans became engaged in. In 1763 the British built numerous forts throughout their newly acquired territory. England also signalled its “Indian policies” in the Royal Proclamation of 1763 and it instructed Sir William Johnson the superintendent of Indian Affairs for the northern colonies to establish peace with those first nations. He spread around the Royal Proclamation with wampum strings among First Nations from Nova Scotia to Hudson Bay and even to the Gulf of Mexico.

The Americans hated the Royal Proclamation  because it claimed that they could not acquire land east of the Mississippi except through the British Crown and this would hamper its expansionary desires. Some American elites like George Washington for example, amassed astonishing fortunes doing exactly that. Others wanted to do exactly the same thing. As a result, the Royal Proclamation was instrumental in leading to the War of Independence a few years later.

Johnson presented the Proclamation to the Haudenosaunee Confederacy in December of 1763 and called for a congress in Niagara in the summer of 1764.

As the Canadian Encyclopedia said,

“The First Nations who agreed to the Niagara Treaty fought as allies with the British in the American Revolution and the War of 1812. Indigenous involvement in both of these conflicts, particularly the latter, ensured British North America’s survival.”


As Assistant Professor Hayden King said, “First Nations saw the treaties as Nation to Nation.” Pam Palmater pointed out that “another really important thing about the Treaty of Niagara was that the Wampum belt was done by indigenous hands, with indigenous ceremony and indigenous intentions, and there is no misinterpretation about what that belt means.”

Niigaan Sinclair, Associate Professor of Native Studies at the University of Manitoba said, “the signing of the treaties made them family not friends.

As Heidi Bohaker said,

“In their [indigenous peoples’] world view, people were divided into one of two categories: relatives or strangers. There wasn’t any acquaintance category. So, if you were going to trade with somebody, if you were going to engage in any kind of alliance relationship they had to become relatives. And there are all kinds of ceremonies and protocols, a law, in other words for how you brought people in, and then what rights and obligations those people had.”


That is how the non-indigenous settlers became relatives with indigenous people. At first there was a lot of enthusiasm for this new relationship among people in North America. Later not so much.

The Hate Capital of Canada

I love Thunder Bay, where I spent my first night on my inferior jaunt. It is beautiful.  Some call it God’s country.  I liked that. I was meandering through God’s Country.  But it has a dark side. It is a region of the country that has been deeply affected by racism.  Perhaps it is god-forsaken country for how could God countenance racism?

As I traveled through this beautiful country I listened to a podcast about the Thunder Bay region  on CBC radio.  Tanya Talaga was the host and one of the producers of the show. The podcast referred to Thunder Bay as the “hate capital of Canada.”    No doubt this is in part a reflection of the abundance of first nations people in the region.  As a result of deep racism in the area many people—too many people—hate the local indigenous people.  Hate of course breeds hate in the other side.  So both sides end up hating each other. What a pity. What a poor way to treat this beautiful country.

The CBC podcast referred to 7 high school students who had been attacked and murdered in the area in the recent past. Tanya Talaga the producers of the podcast also wrote a book on the subject called 7 Fallen Feathers referring to those 7 students. Thunder Bay has attracted so many indigenous youth because many of them have no choice but to go there for high school. The government in the treaties promised free education to youth of the First Nations, but often that means they must travel a considerable  distance from their home to the schools in Thunder Bay, the largest city by far in the region. Many of their communities, it is thought, are too small to support a high school. In cities like Thunder Bay many of those students have been subjected to deep racism so far from home. Many of them live alone, often torn apart by desperate loneliness. Often the students must go without the support of their families who remain back home.  As a result many of them are vulnerable and predators like nothing better than vulnerable people. Some of those students, like the 7 fallen feathers, were victimized by violence that sometimes turned lethal.

The last part of my drive into Thunder Bay was stressful. It was dark and there was a lot of traffic that moved fast.  Big trucks were rushing by. To keep going and arrive in Thunder Bay I had to push it. It started to rain and this reduced visibility on the road and made things a little a slippery. This was a mistake caused by my lack of a navigator. I missed Chris. She would normally arrange for hotel reservations as we drove and would make sure we pulled in before it was too late. I don’t like driving in the dark and the rain on holidays. It just is not necessary.

As a result, I was looking for a hotel room after 10 p.m. and of course, ended up paying too much at the Days Inn for a modest hotel room. The motel clerk just told me, “That’s Thunder Bay.” She added that the only reason that room was available was that someone had just cancelled, or they would not have even had one room.  So, under pressure, I took the room. It was high time to pack it in and I didn’t want to go room hunting at night.  Thunder Bay is on the Trans-Canada highway and the major town in the region. I really wanted to pack it in and go for dinner. It was all Chris’s fault!

I had a fine meal in a local restaurant filled with indigenous people.  Right beside me were to men with 2 lovely children with sparkling eyes.  I speculated that the younger man was the father and the elder the grandfather.  I wondered who could hate these people? How as that possible? Racism is a sword that cuts both ways, hurting the people who inflict it on others as much as the recipients. Racism diminishes all. It is an ugly scourge.

The Honour of the Crown


I continued on my inferior trip to Lake Superior as I have called it.  I love northwest Ontario particularly with its magnificent little rocky islands. To me they express the wonder of this beautiful country. I saw a few fine ones on this little jaunt and could not stop myself from stopping to photograph them. Some people say this country is just rocks and trees. They find them boring. Friends have told me this. I think only boring people could be bored by the stunning beauty of the country.


Some people think the government should renege on contracts (treaties) it has made with First Nations even though it continues to enjoy the benefits of those treaties. Is this a viable option?

There is a critically important concept the courts have enunciated in explaining the constitutional relationship between the federal government and indigenous peoples. That is the notion of the honour of the Crown. The crown is expected to be honourable. The crown must be honourable.

The honour of the Crown must be the basis of the relationship between the Crown (the government now) and the First Nations? Would failure to honour our obligations to first nations people not amount to the erosion of the rule of law in this country? Is that really what we want?

People often ask me why does the government give so much money to First Nations? Well, in large part, because they entered into contracts with First Nations by way of Treaties, that obligate them to do that! It is not free money Canada is giving away. It is money it owes the First Nations for sharing the land with them. Don’t we think we should pay that? Should we renege on the bargain? Would that be the honourable thing to do? Would that not require us to give our right to share the land back to the indigenous peoples?

Although each treaty is different, basically those treaties legally require the government of Canada, in return for getting to use the indigenous land, together with the first nations, to provide those first nations with schooling, housing, health care, and education. In simplified terms that is what Canada as a sovereign nation agreed to. It is bound by those treaties. The First nations are also bound by those treaties. They are considered sacred agreements by First Nations peoples.


f Canada walked away from its legal obligations would it not, as Professor Bohaker asked, “invalidate our legal system?” Do we want to do that? I know I don’t want to give up ownership of my house. What about my lease for our cottage on land owned by the Buffalo Point First Nation pursuant to Treaty 3? I don’t want to give that up either. I had to rush this short jaunt because my family was gathering on Thanksgiving Weekend at Buffalo Point to sand and stain our deck. I don’t yet want to give that cottage away, though I could do without the work.

In the film Colonization Road, indigenous lawyer and activist Pam Palmater said, said this about the effect of treaties made between Canada and First Nations:


“Even after the Royal Proclamation why were so many treaties signed? Because they had to have our consent. There was no choice by law or international law. And that’s significant. Treaties don’t take away from any of that, it actually just bolsters that. And now that the treaties are constitutionally protected it means they are. Recognition of our sovereignty and nationhood is the basis of the legal legitimacy of this country. You take away that and Canada has no legitimacy whatsoever. They need to recognize our sovereignty and nationhood in order to even exist as a state. And every other country in the world is well aware of that. And all Canada has to do is make one stupid move and look how quickly Russia or the United States comes in to claim our territory.”


No. I think we need to maintain our treaties. They are part of the social and legal framework of this country. We are all treaty people.





Some people think Canada’s boreal forest is boring. Nothing but rocks and trees some of them say.  I think only boring people find this country boring. In Particular I love the small islands on tiny outcroppings.  I think that is the essential boreal forest. This is the country I love.

I wasn’t really thinking about treaties and indigenous settler relations all the time as I drove though eastern Manitoba and North-west Ontario. But I was always at the back of my mind.

The process of treaty making began shortly after 1867 with the negotiation of what came to be called numbered treaties. The first treaty successfully negotiated was right in the area I travelled through on my jaunt. This was Treaty One Land. It is beautiful land. It is valuable land. It should be cherished. I also drove through a substantial portion of Treaty 3 land where I happen to have a cottage on land the  Buffalo Point First Nation has developed and offered to people like me with a long-term lease. Thanks to the Royal Proclamation of 1763 declared by the British King George  no one could purchase land from First Nations, but one could acquire a leasehold interest like we did.


Treaty negotiations were a means for Canada and the First Nations to work out trade relations between them in a peaceful manner. First Nations though did not see what they had done as “ceding” land to the settlers. They saw it as a means of agreeing to share the land and thought each party would learn from the other. Neither would dominate. They would be partners on the land.

The Royal Proclamation was issued by King George III after concluding the 7 Years War with France.  As a result, he wanted to establish rules for how the land England had acquired would be governed.

As Pam Palmater, a brilliant Canadian indigenous lawyer has  said,

“All of our rights are inherent. That means they were here before anyone else came. And we had those rights because we were nations. And we had our own laws and our own territories. These things all belonged to us before anyone else came here. All the Royal Proclamation did was recognize that. If you read the Proclamation they say why they had to recognize those rights. It was the only way their colony could be secure, or have any justice, is if they recognized and protected those rights because we weren’t giving them up.”


Some people think Canada should just walk away from its obligations under those treaties. But those are contracts made between sovereign nations.  How can the government which is presumably law-abiding walk away from its own legal obligations? How can we even have the rule of law in this country if we did that? Would people who live here respect the law if the government didn’t? Those obligations and those rights Canada received as part of the bargains with First Nations were to exist “as long as the sun shines and the rivers flow.” Canada still has those obligations to this day pursuant to those treaties.  Many people think Canada is always “giving” money to First Nations people but to pay money Canada has promised to pay in return for substantial benefits which Canada continues to enjoy is not a gift.  It is the fulfilment of an obligation.

Does Canada want to give the right to share the land back?  I doubt that too many  Canadian would be in favour of that.

I know i am very happy the first nations of this wonderful country agreed to share it with Europeans.


The Doctrine of Discovery: Who owns the land?


As I said earlier. I stopped at Lyons Lake right on the Ontario and Manitoba border to photograph the lake, the trees, and the autumn.  This is a photograph of a mountain maple. It is a lovely little spot.  The mountain maples of Manitoba are not as spectacular as the red and sugar maples of Ontario, but I like them. It is a more plain Jane maple, so I gussied up this photograph a bit with a double exposure of the same image in the computer. With some adjustments to each photo I like the effects you can get. Reality in art at least, in the eye of the beholder.

In the documentary film  Colonization Road I saw about this area, Professor Jeff Denis explained the Doctrine of Discovery this way in the documentary Colonization Road:

in the 15th century papal decrees of the Roman Catholic Church decreed that the first European nations to discover new lands, uninhabited by civilized people, by which they meant Christian people, or people who were not using the lands in an efficient manner as determined by Europeans, that the European nations who discovered those lands would have first dibs and sovereign ownership.


Really this idea was not that dissimilar from Mennonites and other settlers of the land in Canada, who believed indigenous people were not using the land so they could just take it.  Plain and simple. To them the notion of land in the natural state, without subjecting it to cultivation as in the case of grasslands, or draining wetlands, was an anathema. It was their duty to change the land and make it useful. It is part of the European attitude that nature is there for humans to dominate.  It has Biblical origins and has had powerful effects on the landscape of North America as a result. That doctrine has led to a lot of ecological harm. The indigenous people of Canada had a very different attitude to nature.  I intend to blog about it.

Eventually that doctrine of discovery was disavowed to some extent by the Catholic Church, but that did not diminish its profound influence on European colonialism. It has been cited in numerous court cases in North America. Even though it made no sense.

Here is what the doctrine provided with clear references to the fundamentals of Biblical doctrine in Psalm 72:

He shall have dominion also from sea to sea, and from the river unto the ends of the earth. They that dwell in the wilderness shall bow before him and his enemies shall lick the dust… Yea, all kings shall fall down before him: all nations shall serve him.”


In the documentary,  Professor of History Heidi Bohaker said that this doctrine was “the source of full legal title for Canada after Confederation in 1867, the Dominion of Canada. We may have forgotten in the secular age just how predominantly Christian, overwhelmingly Christian, Canada was.”And some parts of that Christianity Canada inherited was downright ugly. There really is no other way to describe it.

For 4 days on this jaunt, from Manitoba to North-west Ontario,  I drove through and photographed this land I love—Canada. It struck me that this doctrine was a pretty wobbly foundation for claiming dominion over the country over the objections of people who inhabited the land before the first Europeans arrived. Later King George III in England claimed a large portion of this land for the English crown in 1763 through a Royal Proclamation, (now called “The Royal Proclamation) but admitted indirectly that the rest of this land, basically all the land west of the Mississippi and outside of land already occupied by Europeans in 1763, belonged to indigenous people. He also said no Europeans could acquire title without acquiring it by way of agreement between the first nations involved and the English crown.  All people could then only acquire land from the Crown and were forbidden to buy land directly from indigenous people.


It is also a fundamental principle of English law, inherited by the country of Canada when it became an independent country in 1967, that no one could convey better title to land than he or she had. That has been a fundamental principle of Common law for centuries. So what really is the basis for Canada claiming dominion over this wonderful land? I submit the basis is shaky, except to the extent that title was obtained from the people who owned it by voluntary agreement with them. This is thorny stuff.

Yet as Professor Denis said, “That is really at the root of the Canadian legal system, the American legal system, the Australian legal system, any of those former British colonies.” I taught real estate transactions for 10 years at the Law School, and always felt the legal basis of our title at least when not based on treaties was shaky. Surely just taking it was not enough?

The fact is that Canada realized all along that this root of title in Canada on which it was relying was dubious. It was not a sound basis of developing Canada.  Canada needed a firmer legal foundation for its society. Canadian government officials saw how the Americans were struggling with this problem too and basically how they decided to base their claims on power. That is how Americans have traditionally operated. Canadians saw how that led to Indian wars in the United States. They saw how at one time that country was spending 25% of its annual revenue on these Indian wars. Canada thought it could not afford to spend so much as its wealthier neighbour to the south could spend. So, Canada sought a better way. They decided to negotiate treaties with indigenous people as a sounder and firmer foundation for title to the land. Frankly, this made a lot of sense, but there were problems with this approach as well.

The land I drove through on this trip was subject to Treaty No. 1 and Treaty No. 3 the first and third treaties negotiated by the new government of Canada.

Deja vu All over again: Whites and Indigenous Fighting over Lobster


We are experiencing another hey-rube over treaty rights and the rule of law in Canada. This time the issue is the treaty right of indigenous people to fish. The  protesters this time are white. Funny how the rule of law means something different when the protesters are white. Whenever first nations such as the Wet’suwet’en blockade access to their land, or their supporters do that same across Canada, many Canadians complain bitterly that they don’t respect the rule of law.

This is what Manitoba Premier Brian Pallister said in February of this year about the “illegal blockades” across the country that supported the Wet’suwet’en hereditary chiefs, “We respect the rights of protesters…. But laws need to be applied.” Alberta’s premier Jason Kenney was even  harsher.

What about non-natives? I have not heard either Premier complaining about the non-native fishers vandalizing the Mi’kmaw fishers’ traps in the Maritimes.

The Mi’kmaq on the east coast of Canada are again embroiled over a dispute fishing rights and treaty rights with white fishermen. This brings memories of what happened 21 years ago in Burnt Cove.

I know when I first heard about Mi’kmaw fishers fishing out of season 2 decades ago I was appalled. How could they do that? Aren’t first nation fishers concerned about maintaining the fish and lobster stock on which they rely? Later I realized things are not that simple. They seldom are.

In 1999, the Supreme Court in the Marshall case upheld the Mi’kmaw right to hunt, gather and fish in pursuit of a “moderate livelihood” as a result of those treaties. The court did not define what they meant, leaving it to the parties to settle by negotiation. They have never managed to do that. The Harper Conservatives was not interested in negotiations. The Trudeau liberal government has agreed to negotiate but as always it is moving slowly.

Recently in 2020, a number of non-native protesters removed about 350 lobster traps off the coast of southern Nova Scotia. They took matters into their own hands again by attacking the native fishers. The non-natives claimed the actions of the natives were endangering lobster stocks. As a result, they took the law into their own hands and cut lines to native lobster traps and vandalized their traps. That is certainly not lawful.

Niigaan Sinclair described the dispute this way in a Winnipeg Free Press article:

“The fishers are angry that the Mi’kmaw have a right to fish “out of season” due to the 1760-61 treaty they share with the Crown — a right recognized 21 years ago by the Supreme Court of Canada.

At issue are approximately 350 lobster traps — which Mi’kmaw from nearby Sipekne’katik First Nation say gives them a barely liveable income. More traps would be set but Canada has used “conservation” as an argument to limit Mi’kmaw rights and impose a quota.

It’s a sham argument. Commercial Nova Scotia fishermen are allowed more than 325,000 traps during fishing season — and most companies break the law and overfish.”


Canadians claim the rule of law is sacred.  It should be. As Sinclair said, the rule of law

“The “rule of law” is universally loved by Canadians, politicians in particular. It’s evoked every time there is an Indigenous “protest,” march or action that expresses Indigenous and treaty rights and disrupts the comfort of Canadians.”

It seems the only ones who respect the law are the indigenous fishers. The Supreme Court of Canada, the highest authority in Canada when it comes to the law, declared the Mi’kmaw have the right to obtain a moderate living from fishing. The non-natives and their supporters across the country refuse to follow that law. The non-natives are the ones who are lawless, not the poor Mi’kmaw fishers.

Premiers Pallister and Kenney, if they want to be credible, should speak up for them too.