Category Archives: 2024 Trip to Eastern Canada

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.

Magpie Scenic High Falls.

2024 Trip to Eastern Canada, waterfall

 

 

Just past Wawa on the way south, we stopped at a fantastic view of the Magpie Scenic High Falls. There we found a gorgeous waterfall. I love waterfalls.  Along with lighthouses, wild flowers, autumn colours, and churches waterfalls are among my favourite photographic subjects. I won’t bore you with all of my photographs. I will just bore you with some of them. We stopped at this little falls for about an hour or so photographing it and reading the plaques and talking to fellow travelers.

 

The falls stand 75 feet (22.8 m) and 124 feet (38 m) wide as the locals claim, “its magnificence is definitely worth the visit.”

 

In this area, the Magpie River is a likely remnant of an ancient glacial spillway caused when the massive continental ice sheets that covered most of Canada started to recede. The ice here was at least 1 mile deep at the time it started to melt about 10,000 years ago.

 

At that time the shoreline of Lake Superior was much higher than it is today. When that massive ice sheet melted a great weight was lifted off the land and that land, and huge rock base started to rebound upwards. This is called isostatic rebound and is still occurring to today and will continue for thousands of years to come. It rises approximately 10 inches per year.

 

It will continue for thousands of years more.  A few years, an organization of which I am a member, Native Orchid Conservation Inc. had a members’ night at which we invited Professor James Teller to speak to us.  He is the world expert on Lake Agassiz the massive lake that was created when the continental ice sheets melted and I talked to him about Lake of the Woods where we have a cottage. He told me that eventually the south end of the lake, where we have a cottage will be swamped when water from the lake comes over the top as a result of continued isostatic rebound He assured me though that when it happens I will be long gone, because that won’t happen for a few thousand years more. Those who have cottages on the north end of the lake won’t have this problem, but depending on where they are they might be a long way from the shore line.

After a short stop at Magpie Scenic High Falls we kept on travelling south along the Trans-Canada Highway.

 

Quite Boasting: Canada’s Most Famous Pianist

2024 Trip to Eastern Canada, Music

Glenn Gould at High Falls

There was another attraction to this area of High Falls, just south of Wawa—it was favoured by Glen Gould Canada’s most well-known and respected pianist. But he was also its most eccentric.  According to Heritage Canada, Gould “revolutionized the way the world listens to the classics.”  Apparently, he had perfect pitch at age 3.  Compare that to me.  Imperfect pitch at age 75. He appeared with the Toronto Symphony Orchestra at age 14 to rave reviews and international acclaim. After that his fame spread world wide.

One of his more interesting concerts was with the New York Philharmonic on April 5, 6, and 8 of 1962 when it was conducted by Leonard Bernstein.  According to the Canadian Encyclopedia “Bernstein delivered a pre-concert speech to the audience noting his disagreement with Gould’s interpretation, which featured unusually slow tempos, departures from Brahms’s dynamic and phrase markings, and the highlighting of counterpoint and motives.” It was a case of two eccentrics facing off against each other. The Encyclopedia also called it “his most notorious concert.”

In time, he found that the instrument of his choice was the recording studio. He despised concerts, but produced many recordings. He was also famous for his eccentricities. He wore a trademark heavy overcoat, with cap, scarves and fingerless gloves. He was also a deep hypochondriac.

To my surprise I found out he frequently came here.  He always stayed at the same Hotel, the Wawa Motor Inn and always stayed in the same room, 102. And as the photo above shows, he came to High Falls.

 

It appears that one of the things he liked here was that even during the height of his fame, few people recognized him despite his odd attire. That attire drew little attention in Wawa.  According to Heritage Canada, Wawa was “a place where he retreated to enjoy the solitude and beauty and restore his soul and revitalize his creative muse, all in virtual anonymity.”  Who knew?

I don’t really agree with Gould on this point but this is what he said, “solitude nourishes creativity and collegial fraternity tends to dissipate it.” Gould was brilliant and I’m just a ‘wannabe from Wawa.”

The land south of Wawa is spectacular. Of the 8030 kms (4,990 mi) of the Trans-Canada Highway this area south of Wawa through Algoma County is considered one of the finest.  I agree. It has been listed as one of the 9 greatest drives in Canada.

Those are fine words. Not so modest words. Well, there is a time for some quiet boasting, even in Canada.

Modest and not so modest

2024 Trip to Eastern Canada, Nature

 

 

 

 

I have taken meandering to new levels.  People might think we stayed in the Wawa area for 2 weeks. That might have been interesting but actually we kept moving after a stop of a couple of hours.  The above photo is actually west of Wawa and East of Gloria’s motel which I blogged about earlier.

East of Gloria’s motel I stopped to photograph another of the islets I love so much. Again, the islet is a modest island. A few trees on a small pile of rocks jutting out of a lake. But I think they are magnificent. Not really modest at all. But modest in words. They don’t brag like our neighbours to the south. Humility is not a bad thing. I find it becoming. This islet had just a splash of colour. Here the turning of the leaves was just beginning.

The land south of Wawa is spectacular. Of the 8030 kms (4,990 mi) of the Trans-Canada Highway this area south of Wawa through Algoma County is considered one of the finest.  I agree. It has been listed as one of the 9 greatest drives in Canada. Those are fine words. Not so modest words. Well there is a time for some quiet boasting, even in Canada.

 

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.

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.”