Category Archives: Indigenous People After Contact

From Ancient Indigenous People to Resistance Against American Intrusions

2024 Trip to Eastern Canada, History, Indigenous People After Contact

 

 

Brockville is a city in Eastern Ontario in the Thousand Islands Region, one of the most beautiful places in Canada. We did not venture into that area this area, as we decided, unusually for us, to explore the city rather than the surrounding countryside. We had visited the Thousand Island region in the past and loved it, but today it was time to explore the city.

Brockville was previously inhabited by the St. Lawrence Iroquoians and later the Oswegatchie people. The St. Lawrence Iroquoians established a cluster of palisaded agricultural villages in the vicinity of what became Brockville from about 1450 until the 1500s. They were farmers! Before that the Point Peninsula People, as they are now called, inhabited the upper St. Lawrence River from at the least the Late Middle Woodland Period.

 

In the archaeological cultures of North, the Woodland period spanned a period from about 1000 CE until European contact in the 16th century. The phrase “Woodland Period” is a term used to describe prehistoric sites falling between the Archaic hunter-gatherers to the Mississippian cultures.  The Eastern Woodlands cultural region covers what is now Eastern Canada south of the Subarctic region, the Eastern United State, all the way to the Gulf of Mexico. It was a period of constant development in stone and bone tools, leather crafts, and textile manufacturing. The people also cultivated the soil and constructed shelters. Many Woodland peoples used spear and atlatls until the end of the period when they were replaced by bows and arrows. The southern Woodland peoples also used blowguns.  I was not aware of any of most of that before this trip.

Increasingly the people used horticulture and developed what has been called the Eastern Agricultural Complex that consisted mainly of seed plants and gourd cultivation. They also became less mobile over time and in some places constructed and occupied villages and even cities. The period from 1000-1400CE was a period of what has been called “intensive agriculture,” which was likely continued until about 500 years ago. The people also made use of pottery that arisen earlier during the Archaic period in some places. The forms of pottery were widely diversified.

During the period of 1000-200 BCE the Early Woodland period, included times when people engaged in extensive mound-building, regionally distinctive burial complexes, and traded exotic goods across a vast part of North America that involved substantial interactions with other Indigenous peoples of North America. During that time, many people relied on both wild and domesticated plant foods and mobile subsistence strategies to take advantage of seasonally available resource such as fish, shellfish, nuts, and wild plants with which the people were intimately experienced.  Pottery then was widespread across North America.

By 1751, the Oswegatchie people had occupied much of the north shore of the St. Lawrence in the region we travelled. They withdrew from the North Shore of the St. Lawrence after negotiating with the British in 1784

Later it was settled by United Empire Loyalists and the city of Brockville became named by one of Britain’s most famous Generals, Sir Isaac Brock. English settlers first arrived in 1784 when thousands of refugees arrived from the American colonies after the American Revolutionary War. They were often referred to as United Empire Loyalists because they continued their allegiance to King George III.  They struggled with the American colonies in the years 1776 to 1783 and these skirmishes seriously divided the loyalties among people in some of the American colonies such as New York and Vermont.

 

The British capitulated to the Americans in 1782 and when the six-year war, which ended with the Americans who remained loyal to the British crown being treated harshly by the Americans who saw them as traitors. Many of them lost their properties in America.

Many Loyalists chose to flee north to the British colony of Quebec and Great Britain opened up the western regions of Canada at the time called Upper Canada and later Ontario. In fact, the British crown purchased land from the First Nations so they could allocate land to the loyalists in compensation for their losses and then helped them to establish settlements.

The first settlement by loyalists in the area arrived in 1785 and the first settler was William Buell Sr. Christiane and I walked on a street named after him in Brockville.  Later in the evening we dined at Buell Street Bistro. Buell was an ensign who left the King’s Rangers in the state of New York. Locals called the first settlement Buell’s Bay in his honour. Later, in 1810, the name was changed to Elizabethtown and then even later, Brockville.

 

General Isaac Brock was a celebrated as a hero in the area and even a saviour by some in view of his success in repelling Americans and securing their surrender of Fort Detroit during the War of 1812. He was fatally wounded while leading troops up the heights near Queenston.

Brockville became the first incorporated self-governing town on January 28, 1832, two years before the town of Toronto.

A patent medicine industry developed there around 1854 and features such illustrious products as Dr Morse’s Indian Root Pills, Dr. McKenzie’s Worm Tablets, and later Dr. Williams’ Pink Pills for Pale People. Those must be good.

Brockville along with many other towns in Canada West [now Ontario]  were targets of the threatened Fenian invasion after the American Civil War ended in 1865. In June 1866, the unruly Irish-American Brotherhood of Fenians invaded Canada! The raids were launched across the Niagara River from Vermont into Canada East (now Quebec).

Those unsuccessful raids were a significant catalyst to the confederation of Canada as the people of what became Canada saw their neighbours to the south as lawless ruffians who must be resisted.  Not that differently than today in other words. A year later, in 1867 the new Canadian Prime Minister John A. MacDonald called upon volunteer militia in every town to organize to protect the country from these American rabble rousers. That led to the organization of the Brockville Infantry Company and the Brockville Rifle Company (now called The Brockville Rifles).

Now in 2025 the American president is trying to lure, or perhaps bully, Canada into becoming the 51st state and make what he calls one big beautiful country.

Who ever said Canadian history is boring? Probably many, but not me.

 

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.

Life of the Elite During Fur Trade

2024 Trip to Eastern Canada, History, Indigenous People After Contact

 

 

Ermatinger House, Sault Ste, Marie, Ontario

Without realizing it, when I last read Barbara Huck’s book, Exploring the Fur Trade Routes of North America, she was writing about Sault Ste. Marie! In fact, about places right next to our hotel. Was this coincidence or miracle? And our hotel was minutes away from what she talked about in the book.

Within a couple of blocks of our hotel in Sault Ste. Marie we visited some of the places referred to in the book by Barbara Huck that I was reading that very morning. Huck even had photos in her book of the same buildings I photographed like the one above. There were some weird coincidences on the trip and this was clearly one of them.

First, the stone house of independent fur trader Charles Ermatinger was built on the shore of the St. Marys River, is obviously not an ordinary house. As Sally Gibson wrote in Barbara Huck’s book on the Canadian fur trade, the house was ‘constructed in a classic Georgian style, with ground sloping to the water, it was an imposing sight for early 19th century travellers on the waterway.”I  accept that. I certainly was impressed. Thousands of visitors go to see the house each year. It has been completely restored and refurnished.  She wrote that the house is underpinned in the basement, which I did not see from outside, by cedar logs at least 38 centimetres in diameter and “has stone walls almost a metre thick.” It was built to last through dangerous times.

This house was part of the North West Company post at Sault Ste. Marie. The Ermatinger family lived there until 1828 when they moved back to Montreal. But Ermatinger was an independent fur trader after he left the company in 1808. No doubt he and his family, consisting of a wife and 13 children, enjoyed life there.  His wife was Mananowe (Charlotte) and was the daughter of a prominent Ojibwe policy maker by the name of Katawabeda. The occupants were the elites of 2 of the founding nations of this country; Indigenous and French. That too was impressive.

As Gibson explained, “In this gracious environment, the Ermatinger family offered hospitality to both area residents and weary travellers.” Apparently, invitations to the annual caribou dinner at the house were keenly sought by locals. I know I would love to have attended one of those. It was established as a National Historic site in the 1960s.

 

Success at last: Michipicoten First Nation

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

 

I want to briefly consider one more treaty that affects the region we travelled to around Wawa Ontario. But this one has a happier ending.

This area we travelled through on our way to Nova Scotia is incredibly interesting. Particularly, because I learned so little of this going to school from Kindergarten to Law School I now find it very interesting to fill in at least a few of the gaps. And there are many gaps.

There are many Indigenous groups across Canada and I have discovered that they all have interesting stories. At least as far as I now know. Frankly, I have only looked at merely a few of them.

One more interesting area in the region Chris and I drove through this autumn was the Michipicoten First Nation. I have obtained information from the Michipicoten First Nation website.  According to them the history of the Michipicoten First Nation is

“a history of forced relocations that were endured by the First Nation as a result of “mistakes” and unfair actions taken by the Government of the day. From the time of the first contact in the early 17th century the Michipicoten First Nation had an established presence at the mouth of the Michipicoten River, on the northeast shore of Lake Superior. In 1850 at Sault Ste. Marie, Ontario, Chief Tootomenei had asked that the reserve be from the mouth of the Michipicoten River and the Harbour to the mouth of the Dore River. Instead, the Crown did not survey out the proper location but set aside the reserve of Gros Cap (Indian Reserve 49) which was located several kilometres west of the mouth of the Michipicoten River and harbour. As a result, Michipicoten First Nation did not live on Reserve land for most of its history between 1850 and 1970.”

 

As a result, they see their own history as a history of the displacement of their people. Involuntary displacements are a recurring theme in the history of Canada. It is no exaggeration to say that the history of Canada since the arrival of Europeans is a history of Europeans and their successors displacing the people they encountered here. In different ways, it happened over and over again.

By mistake or perhaps caprice, the Michipicoten First Nation were forced to settle on land that was not of their own choosing. Instead, the “best land” was sold to a development company and the Algoma Central Railway Co. (‘ACR’). Those transfers took away their best land and as a direct result they were cut off from their traditional camping grounds and waterway route. The coastal land they always used was cut off from them. There was no road into the site. Consequently, “Michipicoten First Nation did not live on Reserve land for most of its history between 1850 and 1970.”

Unfortunately, the land they were given was unsafe for a sanitation system and once again they had to move. They negotiated a deal with Ontario Hydro for land they currently occupied and Hydro agreed to build a road to their land as part of that deal.  In exchange, Hydro had the right to put a transmission line across their land. Another group attained a reserve elsewhere and occupied it until the fur trade dropped off.

Now the Michipicoten First Nation advises that,

“Michipicoten First Nation Gros Cap IR49 today and its surrounding lands include extensive coastline along the shores of Lake Superior, the addition of lands settled through various land claim settlements, including the reserves as Missanabie and Chapleau and boasts a pristine and eco-rich environment of unparalleled wilderness beauty, unpolluted waters and an abundance of wildlife, birds and indigenous plants. Fishing, hunting, and trapping are still practiced by the people and children can be taught the ways of their Ancestors.”

 

This now looks like a success story. But clearly it was an uphill struggle to obtain this land. Now (as of October 2024 when we drove nearby), in their own words,

“Michipicoten First Nation is a vibrant community with approximately 1,442 (October 2024) members dispersed around the globe, building on socio-economic independence and with a strong sense of community and cultural identity, Michipicoten First Nation strives to maintain harmony and balance with Mother Earth, neighboring First Nations and surrounding communities.”

 

In their own words, it is clear that the Michipicoten First Nation are a proud people who have created, after some sever challenges, a vibrant community.

Success at last.

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.

 

 

Can Treaties be Abandoned?

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

 

Recently one of my very intelligent cousins, and as well a good friend told me more or less the same thing. My cousin said,  “This is 2024 so all people should be treated equally as Canadians. The treaty and reservation system should no longer be valid.”  My friend said no system of politics will work when one side gets special treatment or has special rights.” I agree with both of them. All people should be treated equally and none should have special status, but this does not end the matter. Other principles are at stake here too. For example, countries should their keep their promises. And countries should act honourably. Sometimes important values or principles collide and we have to deal with that.

The American Constitution is pretty old and far from perfect. Should it be abandoned too? Under that constitution slavery was acceptable and women could not vote nor Indians nor black people. That’s pretty bad. Yet, we have to be careful when we throw out constitutions because a lot will be thrown out with it. A lot is tied to that Constitution. We must be careful not to throw out the baby with the bath water.

I agree that all people should be treated equally as Canadians. Just as all people should be treated equally as Americans.  And no people should have special status as a result of their birth. But we all know that doesn’t always happen that way.  We want to get there. But we are not there yet. Discrimination and racism are real so what should we do about it?

The American Constitution tolerated for centuries a system whereby slavery was permitted, indigenous people and black people could not vote, women could not vote and white people were allowed to jerry-rig the system to effectively make their votes count more than their non-white fellow Americans. Over time, improvements were made, but the system is still not perfect.

We must also remember that remarkable change can happen.  A good example is France and Germany.  I remember on a trip in Africa when I had an interesting talk with one of our German guides. With tears in his eyes, he talked about how the German and French nations had fought and quarrelled and gone to war over centuries, and since the EU was established, they had become best of friends.  During all that time it seemed impossible. During World War II Japan and the United States engaged in a savage war. After the war they also became good, if not best friends. I hope this is what happens with the Indigenous and non-Indigenous people of Canada.

Canadians must remember that treaty rights are constitutional rights.  They are entrenched, which means it is not easy to change them. They can be changed but it difficult. This what Justice Jamal said on behalf of a unanimous Supreme Court in the 2024 the Robinson Treaties case:

“As already noted, historic Crown-Indigenous treaties are sui generis agreements protected under s. 35(1) of the Constitution Act, 1982. The constitutional nature of treaty rights demands that appellate courts be given wide latitude to correct errors in their interpretation. Historic treaties “establish or reaffirm a fundamental and enduring relationship between the Crown and an [A]boriginal people”… They are “an exchange of solemn promises between the Crown and the various Indian nations”… Since 1982, s. 35(1) of the Constitution Act, 1982 has recognized and affirmed that existing treaty rights have constitutional status and attract related constitutional protections.”

 

It was on the basis of those treaties that Canada gained the right to occupy and develop the land around Lake Superior and Lake Huron country. The Robinson Treaties were just one example of that.  As the Supreme Court said, as  a result of those treaties,

” since the Robinson Treaties were concluded in 1850, the Crown has derived enormous economic benefit from the ceded territories through mining and other activities. Meanwhile, as the Court of Appeal noted, the Anishinaabe treaty partners have experienced many deprivations in their communities, such as “substandard housing and boil water advisories” …One treaty partner has thrived, while the other has often experienced immense hardship.’

 

Can the party who got all the benefits now renege and say, sorry we did not pay what we promised to pay and its your tough luck?  Would it be right for Canada and Ontario in the case of the Robinson treaties to renege on their promise to pay after reaping all the benefits? In law if one party wants to rescind an agreement it must first return what it obtained in return for that agreement. Isn’t that fair?  Canada and Ontario have received a lot. Do they really want to give back what they got? Do they want to give back the land in the same condition or better as when it was first shared? I would think not.

So, whether Canadians like those treaties or not, we are stuck with them until the treaties are renegotiated or the Constitution of Canada amended. We can’t just walk away from them.

So far I have pointed out that Canada and Ontario can’t easily get out of their treaty obligations, but the more important question is should they try to get out of them? That is for my next post.

First Nations are Nations

Indigenous People After Contact, Indigenous Treaties

 

The Supreme Court of Canada in the case of   Attorney General of Ontario v Restoule (2024) (the “Robinson Treaties Case”) over and over again confirmed that the First Nations who entered into those 2 treaties were and are “nations.”  In fact, that is why in Canada we often refer to them as First Nations. In the U.S. they are also frequently referred to as nations, but I am not as familiar about their legal effect there.

The Supreme Court of Canada also confirmed that that treaties are constitutional documents. Specifically, this is what it said,

 

“treaty rights are constitutionally protected by s. 35(1) of the Constitution Act, 1982, and relatedly, treaties are nation-to-nation agreements that engage the constitutional principle of the honour of the Crown.”

The  court also said, that treaties represent a “the nation-to-nation alliance.” Doing so will require each party, but especially the Crown, to recall the purposes behind the treaty promises. The Robinson Treaties are not merely transactional instruments about the exchange of money for a tract of land. They are living agreements embodying a relationship nurtured over many years before 1850 and requiring ongoing renewal into the future. It is time for the parties to return to the council fire and rekindle the perpetual relationship that the Robinson Treaties envision. Nothing less will demonstrate the Crown’s commitment to reconciliation.”

The court said treaties represent a

“ nation-to-nation alliance…. Doing so will require each party, but especially the Crown, to recall the purposes behind the treaty promises. The Robinson Treaties are not merely transactional instruments about the exchange of money for a tract of land. They are living agreements embodying a relationship nurtured over many years before 1850 and requiring ongoing renewal into the future. It is time for the parties to return to the council fire and rekindle the perpetual relationship that the Robinson Treaties envision. Nothing less will demonstrate the Crown’s commitment to reconciliation.”

 

No only are treaties nation-to-nation agreements they are expected to last for a long time.  As Justice Jamal said on behalf of the Supreme Court in the Robinson Treaties case “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.”

 The court also commented on the issue of the Statute of Limitations. This is the law that determines the deadline before which a legal action must be launched. After the applicable time has elapsed the claimant loses the right to continue a legal action for relief. Ordinarily such limits are reasonably short. There are often good  reasons for such limits, but they are not absolute either. For example, in cases of sexual assaults on minors, limitations have been extended so that justice can be done.

I would have thought the court would do that in the case of the Robinson Treaties, but that is not what the court did. The court said the Limitation period would be that provided in the Ontario legislation at the time. It then went through a complicated analysis and concluded, as did both the trial judge and the Ontario Court of Appeal before it,  that “the plaintiffs’ breach of treaty claims are not statute-barred by Ontario’s limitations legislation.” In other words no limits applied to the claim. The reasons were complicated so I will leave it at that.

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.