I will now describe to you what the Supreme Court of Canada said about the factual background or context to the negotiation and implementation of the Robinson Treaties. I want to remind readers that the decision of the Supreme Court of Canada was rendered by Mr. Justice Jamal who spoke on behalf of the entire court. In other words, all 9 judges of the Supreme Court agreed with his decision. How often do think the 9 judges agree on what day it is?
I will borrow heavily from his written decision. It is actually an amazing primer in Aboriginal Law, a subject that has engaged my interest for about 2 decades. I learned very little of this in Law School. In other words, I, like most law students at the time of my graduation, was pitifully ignorant of aboriginal law. It was not even a subject at the time.
Justice Jamal also pointed out how the essential facts in this dispute that lasted for 100 or 150 years depending on how one counts “are not materially in dispute.” How could they argue then for so long, you might ask? That is a good question.
Justice Jamal pointed out, as I will., that “the historical setting of the treaty provides a valuable context for understanding” the issues and what must be done to implement it.
The Anishinaabe of the upper Great Lakes are members of several First Nations who historically inhabited and continue to inhabit the northern shores of Lake Huron and Lake Superior. That is exactly the region Christiane and I travelled through on our trip to the east coast in 2024. The Anishinaabe were organized in bands (communities), each occupying and harvesting discrete territories considered as communal property.
This is important. The Anishinaabe like so many other Indigenous people did not share the same views of property as the Europeans who settled what we now call Canada. The Anishinaabe believed they owned land in common. No Anishinaabe person could claim to hold any particular piece of land as his or hers. They owned it together. They were a community.
The Supreme Court also noted that the Anishinaabe spoke different dialects of their Indigenous language, Anishinaabemowin.
The lands that were subject to the Robinson treaties were huge. The land exceeded more than 100,000 sq. kilometres. That’s bigger than Portugal. It included many communities such as Thunder Bay, Wawa, Sault Ste. Marie, Blind River, Sudbury, and many more. When the treaties were signed in 1850 there were 1,422 individual (indirect) beneficiaries of the Robinson-Huron Treaty and 1,240 of the Robinson-Superior Treaty. The number of current beneficiaries has not yet been determined, but it is believed, on the basis of evidence at the 2017 trial, that there could be 29,926 beneficiaries of Robinson-Huron Treaty and 13,546 of the Robinson-Superior Treaty. It affected a lot of people and still does so. In each case it includes people living on and off reserves.
These two treaties, which I together refer to as the Robinson Treaty or treaties was also an important precedent for subsequent treaties.
As the Justice Jamal of the Supreme Court explained,
“The Robinson Treaties built on a close relationship between the British and the Anishinaabe of the upper Great Lakes that existed long before 1850. That relationship was guided by the Covenant Chain alliance, dating back to the 17th century, which symbolized the close connection between the British Crown and Indigenous peoples, including the Anishinaabe. The British and the Anishinaabe maintained this connection in part through annual gift-giving around sacred “council fires” as expressions of mutual generosity and goodwill… As European settlement increased, the Crown assured the Anishinaabe that their autonomy and title to land would be protected.”
The problem was that the Crown, in this case the government of Canada West (Ontario), could not always be trusted, as the Anishinaabe learned.