Category Archives: Colonialism

Mi’Kmaq:  Cooperation or Competition

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous People before Contact, Indigenous Treaties

 

As I said earlier, much of eastern Canada was Mi’Kmaq territory when Europeans first made contact.  And as I have already mentioned, the Indigenous people of North America have a deep attachment to the land they occupied. The attachment was so deep it is not an exaggeration to say it was, and is still, a spiritual connection. This is a critical difference between Indigenous people and non-Indigenous people. A friend of mine said the attachment of Mennonites was the same. I have not noticed such a strong connection, but try to keep an open mind on the issue. I invite people to correct me.

 

According to Quenton Condo, a Mi’Kmaq  member on that CBC Gem series I already blogged about, the treaty of 1752 negotiated by the Mi’Kmaq and the British Crown was by the Mi’Kmaq intended to make sure that no one would interfere with the Mi’Kmaq way of life. The problem is, according to the Mi’Kmaq, that the non-indigenous people were not taught about the treaties in Canada and now react in anger and hate when they learn what it means. This is a failure of the Canadian educational system, he says.

“After all, how much did any of us learn about treaties in school? Frankly, in my case, even in Law School, I learned almost nothing about treaties. Now I know that treaties are very important. They have constitutional significance. And treaties are fundamental to learning about Canada.”

If we know nothing about treaties, we know nothing about Canada!

 My goal on this jaunt across Canada is to learn more about Canada. Therefore I have to learn more about treaties and will blog about them.

Although, that is their [Mi’Kmaq] interpretation, it has the ring of truth as far as I am concerned. Those treaties did not give them the right to hunt. They already had those rights which they inherited from their ancestors. That of course, follows from them being part of the land, which is a fundamental principle to most indigenous peoples in North America and elsewhere.

The Innu territory and Naskapi overlapped as well as Inuit and Cree. As one Innu woman said,

“At the time of our ancestors there were no borders. Our ancestors did not use measuring tapes to say, ‘This is yours,’ and ‘this is mine.’ The territory was shared amongst all the nations. And we shared it well.”

 

Indigenous people have always been willing to share.  Non-indigenous people were more aggressive. They started out willing to share, but then wanted to take over and impose their will. That is exactly what they did, and ever since Canada has had problems. The Innu woman also said that at one time there were plenty of caribou in their territory. Some said there were so many “it moved the mountain.” That would be a lot of caribou.

An unidentified woman on the CBC show said “Nations were intertwined in all aspect of our lives and in our approaches to sharing. This insured the survivals of our peoples.”

I don’t want to suggest that Indigenous People of the region were perfect. No one and no people are perfect. Not even Mennonites. Yet stories like this show the truth of those who say, people who live in places where survival is very difficult, like the Canadian north, have found that sharing works best for survival. This is what the traditional knowledge of the people of the region tells us. I can’t argue with this. This is a fundamental principle of survival.

As one Anishinabe man, Andrew “Stitch” Manitowabi, said about his people, “As an Anishinabe people we don’t go by boundaries. We use the language of speaking Anishinabe which extends into the United States in the Quebec area and northern Ontario.” This is a very different approach to determining territory.

The Anishinabe, like most Indigenous people used the language of sharing, not the language of boundaries. Non-Indigenous people did not always realize that, resulting, sometimes, in serious misunderstandings between the parties. In this country we still live difficultly with that misunderstanding. It has never gone aay.

Mi’Kmaq learned to cooperate.  Non-indigenous people must also learn.

 

 

Colonization by the French

Colonialism

 

According to Barbara Huck in her book on the fur trade routes of North America, the French crown was pursued by people who wanted to make profits in North America, but

“none of the royal suitors really believed that colonizing what was now being called New France was a reasonable prospect. But the profits to made in furs justified signing agreements that demanded the establishment of settlements. And over the next 150 years those two unsuitable partners—fur trade and settlement—would create a pattern of penetration of North America that can still be seen today, in the people who dominate the region that gave its name to Canada in French place names as far west as Oregon and in French spoken as far south as the Gulf of Mexico.”

 

The French also were very different from the English that settled to the south and later, in Canada after the 7 Years War of 1763. Huck explained their attitudes this way:

“In the main, the French were not interested in colonization. They recognized early that settlement and the fur business were diametrically opposed. Clear the land for agriculture and the animals disappear along with the forests.”

 

 

Huck also pointed out how the French also understood as the British did not,

“that North Americans knew how live and travel in their own lands and, were more rapidly than their British counterparts, they adopted the birchbark canoe, the moccasins and snowshoes, the toboggan (from the Mi’Kmaq word tab’agan) and the travelling rations of dried corn and dried buffalo meat or pemmican that North Americans had been manufacturing for millennia. They were also quick to learn new languages and marry into local tribes.”

 

Marrying into Indigenous families proved problematic. After all, the priests expected their French men to convert North American women into what they thought was a superior religion and culture but “the French found that a large proportion of their young men were instead adopting the ways of the people they called the Huron and Montagnais, or later, the Cree and Ojibwe.”

As a result, the French dominated the North American fur trade until 1763 when they ceded control to the English under the Treaty of Paris. In the meantime, the French penetrated the continent more deeply than the other European powers.

Of course, no one asked the indigenous people what they wanted.

 

Pluralism around the Sault

2024 Trip to Eastern Canada, Colonialism, History, Indigenous People After Contact, Moral Humility, Pluralism

 

 

The Clergue blockhouse at Sault Ste. Marie

 

The Clergue blockhouse was right beside the Ermatinger house and was part of the original North West Company post at Sault Ste. Marie. Both of which were right beside our hotel.  Of course, I don’t think too many elites stayed in this block house. That was for the lessers.

This area of North America where Lake Huron and Lake Superior meet, including Sault Ste. Marie, Ignace Michigan, the Mackinac Straits, and St Joseph’s Island, were vitally important in the fur trade. There were many varied First Nations, and the French and English, and later the Americans and Canadians. Barbara Huck called it “The Crossroads of Humanity.” Often they fought each other; at other times they lived together peacefully. As Huck explained,

“For a half-century. Michilmackinac [a little south of Sault Ste, Marie] flourished. Living at a crossroads of humanity, the people of the straits were at home with diversity, unfazed by racial, linguistic, or religious  differences. A multilingual, multiracial community evolved as French traders married local Odawa and Ojibwe women. Prefacing the Metis community that would grow up around the forks of the Red and Assiniboine Rivers in Manitoba a century later, their mixed blood children soon became the dominant population of the straits.”

In Manitoba as well the Métis people became dominant, for a while.  When Manitoba became a province of Canada in 1870, 80% of the people were Métis. A lot of Manitobans have forgotten this. Some of the Indigenous people had left and the hordes of European immigrants, including Mennonites were not yet there.

It was also interesting what happened after America declared its independence from England. As Huck said,

“In 1775 the New England colonies rebelled, and the British turned to their new-found native allies.  Weighing the situation, the Odawa, Ojibwe, Winnebago, Sauk, Fox, Menominee, and Sioux decided that as rigid and obtuse as the British might be, they were not as bent on clearing and settling the land as the American rebels were.”

 

Where many nations live together, they have to make serious efforts to recognize each other and not assume, that all wisdom resides in their own community. They did learn that in the area around Sault Ste. Marie. Sadly, such lessons are sometimes hard to learn and too often not passed on to the next generation. I am a great believer in pluralism. It breeds humility, something always in short supply. Live and let live. We can all learn from each other. None of us have a monopoly on the truth. Pluralism is not always easy, but it sure beats warfare.

As Sally Gibson wrote in a chapter of Huck’s book,

“Sault Ste. Marie has long been a stopping place for travellers. Once a seamless zone of trade, the area is now separated by the Canadian-American border and twin cities name Sault Ste. Marie on either side of the St. Mary’s River Rapids. The rapids drop almost seven metres over less than three kilometres, draining Lake Superior. Travellers today can enjoy the natural beauty of the area and find remnants of the fur trade that stimulated early European settlement.”

 

Of course, once European countries arrived on the scene it did not take them long to make claims on the land. That’s what Europeans (later Canadians or Americans) do.  As Gibson said,

“The territory around Sault Ste, Marie was claimed for France by Sieur de Saint Lusson in an elaborate ceremony…recognizing the importance of the location, New France granted a seigneury on the St. Mary’s River to Chevalier de Repentigny in 1751.”

 

Of course, Gibson did not say by whose authority France did that because none of the people from Europe had any authority to make such grants. Americans always claimed land by conquest, but the locals in Canada had never been conquered. And the locals had never ceded the land. So there really was no basis for the grants. France could have used some humility.

Chevalier de Repentigny farmed the property and fortified it but he left within 5 years as soon as the 7 Years War broke out between France and England. After the French fell in that war, the English took over, but they really had no authority either. Of course, that did not stop the English from granting exclusive rights to the land in 1765 to an English trader Alexander Henry. He was given authority to the Lake Superior area. What did mean? I would say, as a recovering lawyer, that such a grant would be void for uncertainty. What area was covered by the grant, if the grant was otherwise valid?

I have always wondered what would be the legal effect of the United States placing a flag on the moon?  Would that give the Americans ownership of the entire moon?  Half the moon?  The light side of the moon? A square mile? An acre?  Or no part? How can you make such a decision? When you get right down to it claims of “ownership” are usually dubious at their root. Once more that should generate some humility.

Take another example. Indigenous people roamed the North American continent for thousands of years. Many of them were nomadic. Others were more sedentary farmers. What part did each First Nation own? How can you tell? By what right?

Really all claims of ownership are dubious?  Whether you are talking about the jungles of the Amazon or the plains of North America or the city of Steinbach?  All of them are fundamentally dubious!

I taught real estate law at the University of Manitoba Law School for about 10 years and nothing I learnt or taught there gave me any more certainty.

Should Treaties be Abandoned?

Aboriginal Law, Colonialism, Indigenous People After Contact, Indigenous Treaties

 

Yesterday, I argued that it is difficult to walk away from treaties because they are constitutional documents. The next question is should we want to walk away from them?

To answer this question intelligibly we must understand what treaties are and how they came about.

First, is it true to say that Indigenous people who will be paid treaty payments are getting unequal or special treatment?  After all the First Nations are being by the Crown for payments that are due by contract. The Crown promised to pay these annuities  in return for obtaining the right for itself and its assignees to occupy and use the land of the First Nations. Paying what is due and owing  is not a gift. The Crown got the land and promised to pay for it. Some people sell things or rights to the Crown and are paid for them. Others don’t receive that money because they did not enter into an agreement to sell something, such as land. There is no unequal or special treatment here.

Secondly, what is the purpose of treaties? It is more than payment of money for land. As the Supreme Court of Canada explained in an earlier case, Little Salmon,:

“Historically, treaties were the means by which the Crown sought to reconcile the Aboriginal inhabitants of what is now Canada to the assertion of European sovereignty over the territories traditionally occupied by First Nations. The objective was not only to build alliances with First Nations but to keep the peace and to open up the major part of those territories to colonization and settlement.”

 

In other words treaties are created to facilitate nations living together peacefully. As a result of the Robinson treaties Canada obtained tremendous benefits for centuries. Should it now be allowed to renege on its promises and pretend those promises were never made? Or should it rather renegotiate those treaties.  Indigenous people mostly thought that this is what would occur after treaties were made. They would last for a long time, i.e., they would last” as long as the sun shines and the rivers flow,” but they would be periodically renewed and renegotiated. Indigenous people expected that. Sadly, that has not happened as often as it should it.

Personally, I think the Crown should renew and renegotiate those treaties. Just like Canada should renew its Charter of Rights and Freedoms and the United States should renew its Constitution. This won’t happen overnight and abandoning them is not the best way to do this.

Legal scholar Professor Janna Promislow explained why this makes the interpretation of treaties so important:

“Serving the ends of justice in the treaty interpretation context, however, is more complex than the interpretation of contracts, due to the historical nature of the agreements and the constitutional character of the moments of agreement — and because the foundational values behind protecting historic treaty rights are arguably less understood and more contentious than the values behind protecting freedom of contract.”

 

The Supreme Court of Canada in the Robinson Treaty case said this about the rights obtained by the First Nations who entered into the treaty with Canada and Ontario,

“In this case, for example, this Court has to interpret the scope and content of constitutionally protected rights and obligations that embody the very conditions on which pre-existing Indigenous peoples agreed to share their most precious gift — the land itself — with newcomers.”

 

Treaties are important documents. Societies are based on them. They are not entered into for the short term, but the long term because treaties give stability to the nations involved in them. We must be very careful before we abandon them. They are important for all of the nations involved. That is why Justice Jamal said in the Robinson Treaties case on behalf of all 9 judges:

“treaty interpretation involves the application of constitutional principles such as the honour of the Crown, with lasting implications for the nation-to-nation relationship between Indigenous peoples and the Crown.”

 

As J. Y. Henderson, Treaty Rights in the Constitution of Canada, which was also adopted by the Supreme Court of Canada in the Robinson Treaties case:

“Treaty texts are “evidence of the transgenerational rights and obligations of the treaties and their promises”, and are “meant to impose obligations on the British sovereign and the delegated colonial governments and subjects into the distant future”

 

S. Grammond in the legal text The Oxford Handbook of the Canadian Constitution pointed out that treaties are not just binding on those who signed them,

“they are binding upon all Canadians who, because of the Crown’s assertion of sovereignty, are also effectively implicated in these founding agreements. A treaty is a compact “not only among the provinces or ‘founding peoples’, but also ‘between the non-Aboriginal population and Aboriginal peoples’”

 

That does not mean the treaties should be written in stone. They must be renewed and renegotiated frequently. That does not happen overnight. It takes time, effort, goodwill, and yes, even honour!

And that is what Canadians should do. The Indigenous people and the government of Canada and Ontario non-Indigenous people should get together from time to time to renew and amend those treaties to make them better and more effective. Like my cousin said, this is 2024. Times change. We can do better. But reneging is not the answer.

 

 

Treaties from and Indigenous Perspective: Renewing the Treaty Relationship and Restoring the Crown’s Honour

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

The Supreme Court of Canada in the Robinson Treaties case also commented on treaties from the Indigenous People’s perspective. It is sometimes a little different from that of other Canadians. On behalf of the unanimous Supreme Court Justice Jamal said,

 

I am also guided by the fact that the Robinson Treaties were not only about securing land in exchange for a monetary annuity. As the trial judge found,

 

“[f]rom the Anishinaabe perspective, the central goal of the treaty was to renew their relationship with the Crown” …. For the Anishinaabe, “the Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances”

 

 

Actually, the Indigenous people that brought forward the claim on behalf of their people, said it best in their formal claim,

 “What the Treaty promises is . . . an ‘ongoing relationship’ with procedural and substantive aspects. The Crown cannot fulfill its duty by paying an arbitrary sum of money without engaging its Treaty partner”

Meaningful consultation and negotiation were essential, from their perspective, to a proper treaty relationship.  As a result, the Supreme Court did not specifically tell the governments of Canada and Ontario how they had to satisfy the claims of the Indigenous People of the Superior Treaty, but it told them how they had to go about it and if the Indigenous claimants are not satisfied within 6 months they can bring the matter back to the court for final determination by it. If that becomes necessary however the governments will have failed to “to effectively renew the treaty relationship and restore the honour of the Crown.” By giving the governments a short time line, it was giving the government a chance to encourage the restoration of the treaty relationship. I thought this was very wise on the part of the Supreme Court.

Justice Jamal gave one more final word to the parties:

“Although I recognize that the augmentation promise does not expressly require the parties to negotiate and agree on an annuity increase, it is undeniable that negotiation and agreement outside the courts have better potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown. After all, historic treaties represent the “establishment of a relationship of trust and mutual assistance” between Indigenous peoples and the Crown, but the details of that relationship “must be the object of permanent negotiations, in view of fleshing out the general principles governing the relations between the two peoples”

 

In this way, the judgement of the Supreme court allowed the parties a final chance to restore trust, a crucial ingredient of a healthy treaty relationship.  We will have to wait to see if it is possible for both governments to do that.

 

In this case the two governments, Canada and Ontario, did the worst thing they could have done. For 150 years they refused to negotiate in good faith with the First Nations. They stuck their heads in the sand.  And now we will have to pay the price.

 

I must admit I have my doubts that negotiations will succeed because the relationships are so bad. It’s like a husband and wife who can no longer talk to each other. The future looks grim. Lets hope I’m wrong. Canada and Indigenous people must really solve this problem that seems unsolvable.

 

 

True Reconciliation

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

The issue of reconciliation was also relevant to the decision of the Supreme Court of Canada in the case Ontario (Attorney General) v. Restoule  often called the Robinson Treaties case.

Canada has apologized to its Indigenous People through a declaration to that effect by its Prime Minister at the time Stephen Harper. It also accepted the recommendations of the Truth and Reconciliation Commission report that was delivered to it by the Commissioners. In that process Canada promised to work towards reconciling with the Indigenous People of Canada whom it acknowledged had been badly treated by Canada.

From time to time, the Supreme Court of Canada has spoken about Canada’s duty to reconcile with its Indigenous People. It did so as well in this very recent  case  involving the Robinson Treaties of Canada. When the court considered to what extent if any, and how, it would intervene in the Robinson treaties it also reflected on the proper role for courts to play in Canada’s legal system as part of the judicial branch in this reconciliation process.

It accepted what a previous court had said, namely, “[r]econciliation often demands judicial forbearance. Courts should generally leave space for the parties to govern together and work out their differences.” In other words, sometimes it is better for the court to stay on the sidelines and let the parties work it out. Such working out is often best for all concerned, and in the case of treaties, it is often best for the country to have its courts allow them the space to reach an amicable agreement, rather than having the court impose its view on the parties.  That is how the parties hopefully can learn to reconcile.

In other words, the court concluded that through negotiated settlements, in good faith the parties would be much better equipped to reconcile with the First Nations. That is what the First Nations of the Huron Robinson Treaty did.  The court also noted that “true reconciliation, is rarely, if ever, achieved in courtrooms.”

In fact, in the Robinson Treaties case, Madam Justice Martin said during the oral arguments, “accountability most certainly does take place in a courtroom.” Of course, that does not mean the courts should refrain from doing their job. In some cases, courts must do their job. Sometimes it is essential that they do.  As

Mr. Justice Jamal said,

“Indeed, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance… As in the present case, litigation may sometimes be the only way to bring an intransigent party to the negotiating table with a view to reaching a settlement and advancing reconciliation.”

 

For example, when it takes a government 150 years to do its job, clearly required by the Treaty it signed, the court must compel that government to do the right thing.

Justice Jamal wisely put it this way,

“Although it is not the business of the courts to force the Crown to exercise its discretion in a particular way, it is very much the business of the courts to review exercises of Crown discretion for constitutional compliance — to ensure that the Crown exercises its discretion in accordance with its treaty obligations and the constitutional principle of the honour of the Crown. It is appropriate in this case for this Court to order the government to repair the breach of its constitutional obligations, while leaving it up to the executive branch to determine the best means of doing so.”

 Sometimes the court must just make it clear to the government, that it must do what it has promised to do in a sacred treaty. We hope the parties can work it out as that might help the reconciliation process. We must wait and see.

 

Given that Canada took 150 years to agree to do what it ought to have done from the beginning, this sounds a bit like Polyannish wishful thinking.  I hope I am wrong.

The Proper Role of the Courts in settling disputes

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

The case involving the Robinson Treaties  went all the way to the Supreme Court of Canada two times [the first time for the courts to determine which government should pay] ended by making some remarkable decisions  about the proper role of the courts in treaty disputes.

The Supreme Court in the most recent case, relied on the writing of Law Professor Kent Roach about Aboriginal rights as follows:

 

“. . . courts that enforce Aboriginal rights must also consider a range of other factors and competing interests. Courts should provide remedies that respect institutional roles including the limits on the judiciary. In many cases, courts are hopeful that issues can be resolved out of court by a process of consultation and negotiation. This approach is particularly attractive in the Aboriginal rights context because of its potential to allow Aboriginal nations to exercise some degree of self-determination and because of the complexity of the issues and the broad range of reasonable solutions and forms of reconciliation. At the same time, Aboriginal rights may ultimately have to be enforced by the courts, albeit in a way that respects institutional roles and is fair to all those affected.”

 

That really is uncommonly wise. The Supreme Court was very reluctant to impose its view of how the Crown should exercises its discretion to compensate the Indigenous plaintiffs. It wanted to ensure that the legislature, and the executive branch, and the judiciary all stayed in their own lanes.

 

The Supreme Court even acknowledged its own limitations in this respect. It realized that it would be a very difficult task to determine how much the Crown should pay for 150 years of malfeasance. It suggested the Government would be best equipped to make such a complex analysis, but it recognized that after 150 years of dishonour it might be difficult for the First Nations to accept the government’s decision. The Mr. Justice Jamal on behalf of the unanimous Court put it this way:

 

“The amount by which the Crown might increase the annuity is a polycentric and discretionary determination that will inevitably reflect many social, economic, and policy considerations that may change over time, affecting the frequency and nature of net revenue and annuity calculations. Determining the amount of compensation owed for the past will involve similar considerations. I stress that courts are not incompetent or unable to entertain these considerations when necessary. Indeed, I acknowledge the jurisdiction of the courts to order compensation… if appropriate to do so. However, I also recognize that courts are generally not well equipped to make polycentric choices or to “evaluate the wide-ranging consequences that flow from policy implementation”

 

As a result, the Supreme Court said courts must be modest and humble and “accordingly, courts should exercise considerable caution before intervening in such circumstances.”

 

Discretion

2024 Trip to Eastern Canada, Aboriginal Law, Colonialism

 

There was one tricky issue on the appeal. The Treaties gave the Crown [the government] to exercise its discretion to determine whether or not it had earned enough profits to warrant paying the First Nations, but that did not mean it could exercise that discretion without any parameters. It has to exercise its discretion in a way that aligns with the Honour of the Crown and its constitutional role and its duty to bring about reconciliation. As Justice Jamal said, on behalf of the entire court,

“This Court has long recognized that “there is no such thing as absolute and untrammelled ‘discretion’…in a country founded on the rule of law and in a society governed by principles of legality, discretion cannot be equated with arbitrariness”. Our law requires discretion to be “exercised within a specific legal framework”, and recognizes that “[d]iscretionary acts fall within a normative hierarchy…”

 

The Supreme Court also endorsed a law text which said,  ‘a claim of unfettered discretion by government is “constitutional blasphemy. . . . Unfettered discretion cannot exist where the rule of law reigns.”

 

Therefore, even though the government could exercise its discretion on how much to pay, it can’t pay whatever it wants to pay. It must follow the rules the court set out. It must act honourably in the interests of the First Nations and all of Canada.

 

The Honour of the Crown:

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties

 

We must always remember that it is a fundamental principle of English law (and now Canadian law) that because the Crown owns the property of the First Nations as a trustee for them, the crown has a fiduciary obligation to  those nations to act in their best interests. In a word the Crown must act honourably in dealings with Indigenous People.  And would all of us not expect exactly that? The Crown must act fairly, justly, with integrity to its beneficiaries.

Sometimes the cost of dishonour is incredibly high. The case of the Robinson Treaties was an astonishing example of this. Because of the delays of the Crown for more than 150 years, the amounts it will now have to pay will be in the billions. Probably, many billions. Who is to blame? The Governments of Canada and Ontario and the people  who elected them. As Justice Jamal said for the unanimous Supreme Court, acknowledging it will be substantial,

“The Anishinaabe signatories cannot now be short-changed by the Crown’s sticker shock, which is solely the result of the Crown’s own dishonourable neglect of its sacred treaty promises.”

 

As Sarah Ritchie reported in the Winnipeg Free Press, 

“The Crown must increase the annual payments but the decision does not say by how much. Instead, the ruling sets a path forward for one of the two plaintiff groups that has not already reached a settlement with the governments.”

 

The beneficiaries of the  other Robinson- Huron Treaty settled out of court  finalized a deal in February that will see the governments of Canada and Ontario pay $5 billion each to make up for failing to increase the payments since 1875. The two sides are still in negotiations to determine how much the annual payments will be going forward.

The Crown has been ordered to negotiate a settlement with the beneficiaries of the Robinson-Superior Treaty by Jan. 26 next year.

Sometimes the price of disgraceful conduct is high. This time Canada will have to pay. Too bad! We bad!

What does all of this mean for reconciliation?  This how Niigaan Sinclair put it:

“In a world where the honour of the Crown is supposed to exist, there are some big questions, decisions and misdeeds that have to be reconciled before reconciliation is possible.”

 

 

How can someone be expected to negotiate with someone who has acted dishonourably to them and has not acknowledged it? Maybe its impossible. All 9 judges of the Supreme Court of Canada ruled that Canada had acted dishonourably to the 34 Nations who signed the various Robinson Treaties for more than 150 years. Now it is up to Canada to fess up and pay up before it can expect the First Nations to Reconcile.

And the amount will bite.

 

 

An Empty Shell of a Treaty Promise

2024 Trip to Eastern Canada, Colonialism, Exploitation, Indigenous People After Contact, Indigenous Treaties

 

 

The Indigenous People who entered into the Robinson Treaties got screwed by the Crown (governments of Canada and Ontario). There was no doubt about that. But there was one hope for the First Nations. The courts. Starting in 2001 the First Nations hired lawyers and fought for justice in the courts after more than a century of trying to do that on their own.  They argued the Crown (government) had never fulfilled its legal obligations it agreed to. After decades of negotiations, motions to court, and trials the Supreme Court of Canada on July 26, 2024, about 2 months before our journey commenced, held unanimously that the Crown had acted “dishonourably.”

 

The Supreme Court decision noted that the Crown has derived “enormous economic benefit” from the land through mining and other activities over more than 150years, while the First Nations communities who entered into the treaties,  have suffered with inadequate housing and boil water advisories. The lawyers for the First Nations said the people of those nations lived in abject poverty. As Sarah Ritchie reported, “Representatives of the Anishinaabe communities who came to the Supreme Court building in Ottawa to hear the decision hugged and wiped away tears when they heard the result.” Lawyers for the plaintiffs said people have been living in abject poverty.

 Why did the government delay so long? Frankly, this is historically how the government has repeatedly acted  with Indigenous parties. The court records are filled with such disreputable conduct by our lawful representatives.

As Mr. Justice Jamal said on behalf of a unanimous Supreme Court:

 “Today, in what can only be described as a mockery of the Crown’s treaty promise to the Anishinaabe of the upper Great Lakes, the annuities are distributed to individual treaty beneficiaries by giving them $4 each…For almost a century and a half, the Anishinaabe have been left with an empty shell of a treaty promise.”

 

As Sarah Ritchie said in an article in the Winnipeg Free Press,

“The Supreme Court said the Crown had a mandatory obligation to raise that amount when the economic circumstances warranted and failure to do so undermined the spirit and substance of the treaties. The Crown made a mockery of its treaty promise to the Anishinaabe in Ontario by freezing annual payments to First Nations for 150 years and it now must make things right, the Supreme Court of Canada has ruled.”

 

For over a century the governments of Canada and Ontario, failed to increase the annuities to the First Nations of the Robinson Treaties as it had promise to do, without legal justification, while the Indigenous People suffered. And of course, their children suffered the most.

 Yet, continuously I hear friends of mine complain, no matter how often I try to correct them, ‘the government is handing our money to the Indians again.’ No! These are legal obligations. This is not charity. Nor handouts. Canada is finally doing what it has an obligation to do for a century and half!

Frankly, this is a recurring theme in litigation by Indigenous people against the Crown. It is clear by now that the Crown often—much too often—did not act with honour in its dealings with indigenous people. Often it ignored its obligations freely incurred under treaties it negotiated with Indigenous nations.  Sadly, for Canada, it is now being required to honour its obligations under many agreements at great cost to Canada. Frankly, the conduct of Canada was shamefully. I would call it shocking if I were not so accustomed to it.

 

Justice Jamal speak for the unanimous Supreme Court, said,

“(The Crown) must increase the annuity under the Robinson treaties beyond $4 retrospectively, from 1875 to the present…It would be patently dishonourable not to do so.”

 Who could disagree with that? Guess how much that will cost the people of Canada and Ontario?