Category Archives: Indigenous Treaties

Quantum: A Wicked Problem

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

 

In such difficult and complicated circumstances of trying to determined the proper compensation for  a large number of First Nations who had been treated dishonourably for 150 years as was the case for the Robinson Treaty First Nations, how can a court determine, or the government for that matter, determine, the proper amount to be paid?  Clearly that is a wicked problem. A problem brought on entirely by the dishonourably conduct of the Crown.  To give you a bit of an idea about how much money is involved in the dispute you should consider that the Robinson-Huron Treaty case but not the Robinson-Superior case,  has been settled by agreement out of court by the First Nations involved and the government of Canada and Ontario.

Canada, Ontario, and the Huron plaintiffs  on June 17, 2023, publicly announced that, as a result of negotiations that had been ongoing since April 2022, they had successfully concluded out of court negotiations  to settle those claims under the Robinson-Huron Treaty for $10 billion! Each of Canada and Ontario agreed to pay $5 billion from each of Canada and Ontario. The proposed settlement was described in a joint press release as “a major milestone in the ongoing collaborative work to renew the treaty relationship and honour a treaty promise that dates back to 1850”

The other treaty claimants are demanding for compensation of the breach of the augmentation clause an astounding $126 billion! The Supreme Court of Canada acknowledged that “This figure is equivalent to approximately two-thirds of the total reported annual revenue of the province of Ontario, from all sources, in the 2022-23 fiscal year.’ A judgement for $126 billion might bankrupt Ontario and severely harm Canada.

Justice Jamal acknowledged in his judgment on behalf of a all 9 judges of the Supreme Court  that

“Naturally, where the Crown has defaulted on its payment obligations for almost 150 years, the amount due 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.”

 

 

 

Justice Jamal on behalf of the entire Supreme Court also acknowledged that the Augmentation Clause constitutes a promise by the Crown to exercise its discretion as to possible future increases to the annuities it pays beyond $4 per person where it can do so without incurring a loss. And he said,

“This discretion must be exercised honourably, but also in accordance with Her Majesty’s desire “to deal liberally and justly with all Her subjects” — to do justice to the Anishinaabe treaty partners and Her Majesty’s other “subjects”. Accordingly, in exercising its discretion, the Crown will have to engage in complex polycentric decision making that weighs the solemnity of its obligations to the Anishinaabe and the needs of other Ontarians and Canadians, Indigenous and non-Indigenous alike. This is well within the expertise of the executive branch, but is much less within the expertise of the courts.”

 

The Crown (government) must act for the benefit of all Canadians too. Not just Indigenous people. This amount must now be negotiated within 6 months or less after which the government must advise how much it will pay the Indigenous claimants and on what basis that amount has been determined.

This should be fun Not.

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.”

 

The Honour of the Crown:

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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?

Governments Renege

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

 

The picture of Canada and Indigenous People started to get ugly.

 Despite the obvious benefits Canada and Canada West (Ontario) received from the Robinson Treaties and the fees generated by selling extraction rights, Canada West did not want to pay any more  the 34 First Nations despite its promises to periodically increase the annual annuities. The First Nations frequently complained, but the complaints fell on deaf ears.

We must also remember, that  for many years the First Nations were not allowed to hire lawyers to make their cases in court. The Indian Act passed by the Canadian Parliament prohibited that from 1927 to 1951 by not allowing anyone to solicit funds on their behalf to hire legal counsel. As Bob Joseph explained in his book, 21 Things You May Not Know About the Indian Act,

“This made it illegal for Indians to hire lawyers or raise money to hire legal counsel.  It also meant jail sentences for anyone who lent Indians money for lawyers or legal counsel.  This amendment [to the Indian Act] coupled with it being illegal for Indians to form political organizations, created a very real barrier to Indians to form organizations, created a very real barrier to Indians pursuing land claims and human rights actions.”

 

They had to rely on the goodness of the governments, and sometimes goodness was absent. This is how settler colonialism operates. The injustice is startling, but the colonial powers assumed it as their divine right. As Chief Joe Mathias and Gary R. Yabsley said in their book In Conspiracy of Legislation: The Suppression of Indian Rights in Canada (1991),

“Indian nations were therefore denied those fundamental rights that are taken for granted in any democratic system. They were, as a matter of colonial and provincial policy, denied rights to lands they occupied for centuries. This exclusion from the land was extended through the discriminatory provisions of colonial and provincial legislation. And they were prohibited by federal law [from] seeking a legal remedy for this injustice.”

 

Colonialism operates that way. Through law and policy exploitation is institutionalized.

 As Niigaan Sinclair explained about the First Nations affected by the Robinson Treaties:

“For over a century and a half, citizens from 34 First Nations watched billions of dollars of resources being taken from their communities, only to receive four loonies each.”

 

And it need not be said that during this nearly 150 years the Indigenous communities were fraught with the problems of poverty while everyone else profited handsomely from using their land! And people wonder why the First Nations could not prosper.

 

 

The Augmentation Clause: We need a Canadian Charles Dickens to tell this Story

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

 

I said the result of the augmentation clause was shocking, and that is an understatement.

Charles Dickens, wrote a magnificent book, Bleak House, based on an actual legal case in the Court of Chancery in England that carried on for 68 years.  In that book there are young claimants who were contesting the interpretation of a badly drafted will. At the beginning of the 830-page book, those beneficiaries were running around the court as exuberant youngsters. At the end of the book the proud lawyers announced that finally the case had been settled. Those claimants were now doddering old men and women who had anxiously awaited the final court decision for their entire lives. The case was settled because the estate had run out of money. All the money was expended by lawyers and the English Judicial system.

We need a Canadian writer like Dickens to write the woeful Canadian story of Dismal House.  That would be the story of the Canadian case that took a century and half to be resolved.

In July of 2024 the court case about the Robinson treaties was finally determined when the Supreme Court issued a ground-braking ruling. The Robinson Treaties, 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.  That does not mean that later there were no disputes about what had been agreed to.

These Robinson Treaties of 1850 are credited with laying the foundation for what later became known as Western Canada’s Numbered Treaties. They showed how treaties could be made and then ignored. Something that has happened all too often in Canada.

In 1850, the British were motivated by the abundance of minerals in the region — copper and iron, in particular — so, unlike previous treaties (which were predominantly peace, alliance or “land secession  ” agreements, the Crown’s representative, William Benjamin Robinson, was somewhat generous  in what he had to offer. He knew his client (Canada and Ontario West) wanted this agreement badly so the region could be developed.

As I mentioned earlier, in exchange for the use of First Nations territories, and extracting valuable minerals from those lands, the communities giving up their rights were offered more than just promises of a reserve and a “continuation of life.” They were offered an annual payment (annuity) that would start fairly low at about a dollar and a half, but would increase significantly via an “augmentation clause” as resources in the region were extracted and profited upon.

 As Niigaan Sinclair summed it up, “In other words, as British North America citizens — soon to be Canadians — profited, so would First Nations peoples.”  When you look at it such a clause, it  is eminently fair in view of the fact that at the outset it is very difficult to determine how much profit the mining corporations would earn from their investment. In a few short year dozens of mines were established and mills and smelters opened up. North West Ontario was booming. In fact, the miners discovered new valuable minerals besides copper including gold, silver, nickel and uranium. The mining companies were getting extremely good value for their money. So was Canada West. But not the First Nations who had made their land available.

For a while things went well. 25 years later, in 1875 the fees paid to the First Nations who signed the Treaty were in fact increased from 1 British Pound to $4 per citizen. But then things changed. No more increases were given. The government stopped paying increased annuities even though the value of the extractions kept rising. In other words, Canada West became increasingly greedy. Hard to believe isn’t it?

As the Supreme Court said, “After years of demands by various chiefs, in 1875 the Government of Canada increased the annuity to $4 per person.”  But that was the one and only increase in the annuities. For the next nearly 150 years there were no further increases. Unlike Charles Dickens case, by then there were no original beneficiaries still alive. 

Besides minerals the land ceded to Canada West also increased in value greatly. As Sinclair said, “Sault Ste. Marie, Sudbury and Thunder Bay are situated on the land in question, not to mention million-dollar cottages owned by elites from across the world.”

 For nearly 150 years the governments failed to pay any increased annuities despite their clear promises to do so. And despite the fact that the Indigenous Leaders made frequent demands for payments.

Everybody wanted a Treaty

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

 

Canada West did not want to negotiate a treaty but everyone else did, including the people to whom it sold the mining rights

Until 1849 Canada West refused to negotiate. As a result, the 3 Chiefs, Oshawano, Shingwaukonse and Nebenaigoching,  went to Montreal to visit the Governor General. The text of their demands were published by the local Montreal newspapers. And they rocked the city. Those demands questioned the right of Canada West to grant leases to the Indigenous  lands which had never been ceded to the crown or anyone else.  When you think about it, such a demand put into question the entire colonial project.  If the government, Canada, or Canada West, could not grant valid leases to business interests what could those businesses be sure they were entitled to?

The 3 Chiefs also vowed to drive off all miners who were illegally on their land. Business leaders were getting very uncomfortable. Business leaders don’t like uncertainty. While the 3 Chiefs were in Montreal another Chief, Peau de Chat from what was then called Fort William (now Thunderbay) travelled to Mica Bay with his warriors. He informed the company there that without a treaty the miners would have to leave.  Canada West told the Chief that should the band not make a treaty they would lose their land without compensation. Again, that was contrary to Canadian law, but as often happens governments are quite willing to ignore the law when it no longer suits them.

In this heated atmosphere the Commissioner appointed by Canada West began to negotiate with the chiefs. The meetings were raucous and contentious. The commissioners spent as much time trying to divide the bands rather than engaging in fruitful negotiations. Again a common negotiating technique by colonial powers.

The Chiefs refused to be bullied and instead sailed a schooner loaded with a small cannon and some others arms which they took from the Crown Lands Agent, into Mica Bay on the north shore of Superior. The chiefs confronted the manager of the mine and demanded he pay the sums they required. The manager saw the Indigenous people as “armed insurgents” and closed the mine.

Fake news soon followed.  Fake news was not invented by Donald Trump. Rumours were circulating about an “Indian massacre” with “hundreds” of dead. This led to Canada West sending a brigade of troops to enforce the law. Now law was important again. By the time the troops arrived the mine  was all locked down and shuttered. The troops remained until October of 1850.  They probably spent most of their time drinking and playing cards through a cold Canadian winter.

The ringleaders of the insurrection though were arrested on December 4, 1849. But the chiefs never made it to trial. The cases were dropped once a treaty was signed in 1850. This was insurrection Canadian style. And to tell the truth, I like this style. The tough actions of the Chiefs, were entirely without any bloodshed, and frankly not entirely without legal right, led to the parties entering into 2 treaties. As the Canadian Encyclopedia said, “The Robinson-Huron and Robinson-Superior Treaties legitimated the mining leases, created reserves, recognized First Nation rights, and set precedents for future treaties. This set a precedent with how Canada would deal with Indigenous People. So did the subsequent lacklustre implementation on the part of the governments.

In 1850, leaders from 34 First Nations signed the Robinson Treaties with the British Crown, giving soon-to be- created Canada and Ontario access to more than 100,000 square kilometres of land via two agreements.

Each treaty contained annual payments (called annuities) to the First Nations along with an “escalator or augmentation clause.” The augmentation clause  in each treaty was designed to raise the annuities as profits from the extractions of resources increased. But as so often happened, the governments did not like the augmentation clauses. The chiefs were very wise to insist on such a clause. Sadly, as so often happened the Crown refused honour it.  Instead, it ignored the clauses as long as possible. As a result, the honour of the crown, considered so important in Canadian constitutional law was badly besmirched. Those clauses eventually became the centre of litigation which was not resolved until this year, 2024, 174 years later, by the decision of the Supreme Court of Canada. And the result was truly astonishing.

Rebellion

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

 

I have tried to give the necessary background to treaties, and in particular the Robinson Treaties which were so important to the development of Ontario and revealed so starkly the ugly reality about some of the treaties.

Canada, in the middle of the 19th century, was then a unified colony, it selected William Benjamin Robinson, an experienced trader familiar with Indigenous language and trade customs, as their primary negotiator for the Robinson Treaties. Negotiations began in Sault Ste. Marie and Indigenous leaders were at first hesitant to accept the Crown’s terms and requested additional time to consider them. As I mentioned earlier, they preferred to be deliberative. That approach often paid off for them.

Robinson confirmed that Indigenous groups would maintain their hunting and fishing rights, terms that encouraged reticent leaders to sign. Although Lake Huron leaders demanded accommodation be made for their half-breed kin, Robinson refused that demand.

Contrary to the Royal Proclamation of 1763, even before a treaty was signed with the First Nations in the region, the government of Ontario West or Upper Canada had started issuing mining licences to Canadian companies. Naturally that was seen as disrespectful by the First Nations.

In November 1849, a force of Anishinaabeg (Ojibwe or Ojibway) and Métis warriors, led by Chiefs Oshawano, Shingwaukonse and Nebenaigoching, forced the Quebec and Lake Superior Mining Association to stop operating a mine at Pointe aux Mines, Mica Bay, north of Lake Superior not far from where we travelled this summer. The site was approximately 100 km northwest of Sault Ste. Marie where we spent the night. The closure of the mine and the reaction of the government of what many now called Canada West is usually referred to as the Mica Bay Incident.

The Indigenous leaders were sharp. They realized that ultimately the newcomers needed security of title for the immigrants in order to succeed in Canada. Europeans were accustomed to a laws based environment for settlement and I particularly for businesses. Businessmen, (they were mainly men at that time) don’t like uncertainty. Uncertainty of title or ownership is particularly uncomfortable.  The indigenous leaders and business people were also familiar with the Royal Proclamation of 1763 promulgated by King George and it required anyone who wanted to acquire land from Indigenous people to do so with the consent of the Indigenous inhabitants and only through the agency of the crown. The crown was like a real estate agent with an exclusive listing agreement.

The people of Canada West had seen how successful mining operations were in northern Michigan copper country and hoped to mirror that success in their neck of the woods. Thousands of people had been travelling through Sault Ste. Marie into Michigan copper country, which I visited last year, and Upper Canada (Canada West) wanted them to come north instead. Some of the Americans also became illegal immigrants to Canada because they were searching for a better life just like the immigrants to the southern USA in the 21st century.  Likely some Canadians called them “murderers and rapists and not their best people.”

As a result, the government of Ontario West in 1841 assumed legislative control of the land along the north shore of Lake Superior  to keep those nasty Americans out. Of course, that government did bother consulting with the local inhabitants who were mainly Anishinaabeg who had never ceded their land to anyone!

As a result, Canada West issued the first mineral exploration license in 1845, in my opinion entirely without legal authority to do that. They did not own the land or the minerals so they could not sell or lease it. As a former lawyer who has already forgotten most of the law I ever knew, I do know that much. You can’t sell or lease out what you don’t own. The Canada West government also authorized surveyors to commence surveying land they did not own. That is the way colonial authorities operated. That also bothered the Indigenous people.

Chief Shingwaukonse then confronted and questioned Alexander Vidal, the government surveyor, about the legality of surveying unsurrendered (unceded) lands.  The Chief also went on to petition the Governor General for a share of the mineral profits from the lease for his people.  He also pointed out, quite rightly again, that his people’s aboriginal rights were being infringed.  This was all contrary to the Royal Proclamation which was binding law in the territories of Upper and Lower Canada.

Regardless of the legalities, in 1848 at Pointe aux Mines, the Quebec and Lake Superior Mining Association who obtained the lease from the government of Canada West began to build accommodations, a mine building and water-powered dressing facilities all with the clear intention of starting copper production. The mining companies were not stupid either.  They were aggressive and decided to act and ask for permission or forgiveness later, but they knew they were asking for trouble. So they called for a treaty.  They wanted to be treaty people too!

The missionaries, as usual closely following business interests, were also eager for the parties to reach an agreement. Of course, Canada West had been using mining leases as a form of patronage and revenue generation.   Corruption is never new, and apparently, never ending. Already, by 1846 Canada West had generated $60,000 of revenue from those sources, even though no treaty had been negotiated. That, needless to say, was a lot of money in 1846.

Rich people paid a lot of money for those leases and wanted their legal documents to be secure. They pressured the government as only rich business interests can.

Everybody wanted a treaty.

 

Treaty of Niagara

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There is one more document that must be considered in order to understand the significance of the Robinson Treaties. in 1764, one  year after the Royal Proclamation was proclaimed,  Sir William Johnson who represented the English crown, invited all of the First Nations in the region that would be impacted by the Treaty of Niagara to Niagara to talk him. This has been called the Council of Niagara 1764 and was attended by over 1,700 Indigenous people, including Anishinaabe leaders. At that time Johnson on behalf of the  Crown again assured the Indigenous attendees of their autonomy and stated that the Crown would maintain and protect their title to their lands as was proclaimed by King George in the Royal Proclamation.

He advised them that he was the person responsible to implement the Royal Proclamation. He sent out copies of the proclamation together with strings of wampum. These are shells commonly used in Eastern Canada and they represented the highest forms of nation-to-nation diplomacy. These strings or belts were the indigenous form of treaty “writing.” It is interesting how the parties latched on to Indigenous ceremonies in this “new world.” This was a sign of respect by British authorities to their Indigenous partners. It was understood that they would be partners.

 

The Covenant Chain belt was created through the Treaty of Niagara. It is a belt that shows 2 individuals holding hands representing friendship and alliance. Gifts and wampum belts were exchanged, including the Great Covenant Chain Wampum and the 24 Nation Wampum. The trial judge in the Ristoule case that went to the Supreme Court who momentously rule on the case this past year, described the Great Covenant Chain Wampum as an embodiment of the “merged symbols of diplomacy” between the two groups, visually represented on the belt by two figures holding hands as part of two links in a chain.”

The Treaty of Niagara is what flowed from that historic meeting in 1764.

Aimée Craft is an Indigenous lawyer (Anishinaabe-Métis), an assistant professor at the Faculty of Common Law, University of Ottawa, and an adjunct professor in Native Studies at the University of Manitoba, said this;

“The Royal Proclamation does not stand alone. The Treaty of Niagara is a sister document. It is the foundation of the nation-to-nation relationship between Canada and the First Nations of Canada. Together, the Treaty and the Proclamation provided the first understandings between the English and the Indigenous people of North America about the relationship of the British crown and the indigenous nations. Through the Proclamation, Britain asserted sovereignty over the parts of North America that it claimed, but at the same time, it also acknowledged the sovereignty of the First Nations of Canada. It recognized that lands had not been surrendered or ceded to the British crown and therefore it was necessary to make treaties with Indigenous peoples.”

 

The Royal Proclamation signed by King George said Canada should ensure that indigenous people would not be disturbed or molested in their occupation of land reserved for them. It also said the abuses that occurred in the past in the acquisition of land should not be repeated.  It was acknowledged that too often in the past fraudsters had taken advantage of Indigenous people who often could not read English script.

A fundamental principle of the Royal Proclamation is that no private person has the authority or privilege to purchase land from Indigenous people of those vast lands that had been set aside for them (unceded land). The crown has the exclusive right to purchase such land from Indigenous people or groups and only at public meetings of said nations. The indigenous people had to be “inclined to dispose” of their interest as the nation as involved in the agreement. If they were not so disposed there would no transfer of ownership. This is the foundation of treaty making to this day. Only in this way can land of a First nation be sold or ceded.

Sadly, later there were some lapses in recognizing this legal prerogative, just as there were lapses in failing to honour the treaties, particularly on the part of the non-indigenous people. Perhaps there is no better example of this than the Robinson Treaties, that I will get to in the next post.

The Treaty of Niagara is called a treaty because 200 chiefs showed up from as far away as the Rocky Mountains. They came to Niagara to “make treaty.” 24 nations were represented. Of course, the concept of nations has morphed over time.

These 2 documents, together with the Covenant Chain, mandate non-interference in indigenous governance. According to Professor John Borrows, of the University of British Columbia, this is the foundation for indigenous sovereignty. Those treaties that were negotiated are still the legal basis for the legitimacy of settler presence in North America. They are the basis of the right of all of us non-indigenous people who live in North America to do so with security of tenure.

 

 

Royal Proclamation 

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

 

Shortly after the ending of the Seven Years War between France and England, and after England assumed European control of North America, a number of North America’s First Nations, including the Anishinaabe, rose up against the French. After all, unlike France, most of them had not signed a treaty with the British.

In response England through its monarch King George issued a famous Proclamation commonly referred to as the Royal Proclamation of 1763. This proclamation is now part of the law of Canada. It has been called by the Supreme court of Canada, a defining moment in Canadian history. I shall return to it again and again. The Supreme Court also said it provided the impetus for the Robinson Treaties.

As the Mr. Justice Jamal of Supreme Court said, in the Ristoule case in 2024 dealing with the Robinson Treaties

“In the Proclamation, the Crown unilaterally asserted sovereignty over what is now Canada, but also affirmed pre-existing Aboriginal title and ownership of unpurchased lands. The Proclamation created special rules for the purchase and sale of “Lands of the Indians” to prevent fraud and abuse, prohibited private parties from purchasing such lands, and stipulated that they could only be surrendered to the Crown.”

 

One of the effects of the Proclamation was that colonial governments, in what is now Canada and the United States, were forbidden to survey or grant any unceded lands. This particularly riled the Americans who were expecting to develop and open up the west for American enterprise and government.  The Americans saw it as British interference. They hated this constraint and it was an important cause of the American Revolutionary War. The Americans wanted to control the continent.

As a result of the Royal Proclamation, colonial governments were forbidden to allow British subjects to settle on Indian lands or to allow private individuals to purchase them.  There was an official system of public purchases developed in order to extinguish Indian title. The English did not want anyone asserting claims to ownership which might lead to  a dubious foundation in law for such titles  as this would provide an insecure foundation for development. Settlers and business people all wanted secure title to land, or they would not invest in it.

Added to that, even the King of England realized he had no authority to simply take land from other nations in either English law or international law.  This meant that England would have to establish a sound legal basis for obtaining title from Indigenous people. This is part of the treaty making process and an important part of the motivation for treaty making by Europeans and later Canadians. Modern Canadians often forget about this context when they complain about treaties. In the view of the British and Canadian governments this secure foundaton was very important.

Americans had fewer scruples. They believed that conquest, if necessary, would provide a secure foundation.  However, its Indian Wars were horrendously expensive and the English and later the Canadians blanched at the thought of following the American lead. After 1776, Americans were spending about 1/4 of their federal budget on these wars

Added to that, even when King George wanted to assert jurisdiction over parts of Canada, as he did, he had to wrestle with this problem. Frankly, he also did not have the military strength to just take it all. So, King George had problems and the Royal Proclamation was his way of dealing with some of those problems. As a result, King George asserted jurisdiction but also recognized the limitations of doing so.