The Honour of the Crown:

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

 

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

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

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

 

As Sarah Ritchie reported in the Winnipeg Free Press, 

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

 

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

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

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

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

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

 

 

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

And the amount will bite.

 

 

An Empty Shell of a Treaty Promise

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

 

 

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

 

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

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

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

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

 

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

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

 

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

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

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

 

Justice Jamal speak for the unanimous Supreme Court, said,

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

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

Governments Renege

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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

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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

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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

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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.

 

 

Context of Robinson Treaty

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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.

 

 

Robinson Treaties

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Treaties are very important for relations between Indigenous People and first the British government and then the emerging country of Canada, as it came to be called.  One of the most important or significant of those treaties was entered into before 1867 when Canada became an partially independent country. This was actually a series of treaties referred to as the Robinson Treaties or the Robinson-Huron and Robinson-Superior Treaties. The story of these treaties is one of the most fascinating stories in Canadian history and helps to explain that relationship between these nations.

 

Much of this region we drove through from Thunder Bay to Ottawa was part of the land that was subject to the Robinson Superior Treaty that was signed in 1850 in Sault Ste. Marie. That treaty has become very controversial in Canadian law at least until a landmark decision was made by the Supreme Court of Canada this year, 2024.

 

The Robinson Treaties, saw Canada secure almost all of northwest Ontario for settlement and resource development. That is what Canada and Ontario wanted. New in these agreements were provisions made for reserves based on sites chosen by Indigenous leaders. These Robinson Treaties of 1850 are credited with laying the foundation for what later became known as Western Canada’s Numbered Treaties that were entered into between Canada, after Confederation in 1867, and various First Nations. Treaty making during this period was not just confined to the eastern and central areas of what would become Canada.

 

These treaties were very important for both the indigenous people who were confronting an avalanche of immigrants from Europe, and elsewhere, and of course they were very important to those immigrants who had created a new national entity—Canada.  We are all treaty people. Those treaties are very important. Canada realized that it would never be able to develop the country without being able to grant secure title to land that these newcomers would want in order to come here. Canada did not want to follow the mistakes the Americans were making to our south. Americans were spending 25% of their entire federal budget on fighting Indian wars.  The country to the south had many more people and much more money than us Canadians to the north.  So much money was a burden even on them.  Canadian officials realized that such expenses would bankrupt their country just as it was, in their view, getting off the ground.  Canada decided, rightly in my view, that it would be much better for all to come to an agreement. An amicable agreement. Canada chose to negotiate treaties with the inhabitants.

 

The Robinson Treaties were made before Confederation in 1867 and the Robinson Treaties of 1850 were the template for the numbered treaties that followed after 1867. It laid the groundwork for the later treaties and development of the country and unfortunately, that foundation was not as solid as the people had hoped.  I should mention that there were also peace and friendship treaties that had been made with indigenous people on the east coast that also preceded the numbered treaties and I will deal with them when this journey gets to that part of Canada.

 

There had been a lot of conflicts with indigenous people on the east  coast that hindered development of the country that the arrivals from Europe yearned for. As a result, in light of those conflicts and the changing political, social, and economic dynamics, the years between 1764 and 1836 saw the newly created colonies of Upper and Lower Canada negotiate roughly twenty-seven (27) land purchases to secure the lands falling within their newly defined territories.

 

This also coincided with the post-1812 shift in colonial policy away from military alliance, and towards demands that Indigenous people abandon their traditional life ways and adapt an agrarian and sedentary lifestyle. The Europeans saw these plans for “civilization,” as they called them,  as a shift from cash payment and trade relationships, in favour of annuity payments used to develop permanent agricultural communities. As non-Indigenous settlement moved west and conflict over land and its resources escalated, colonial officials sought to speed up land secession agreements around the areas of Lake Huron and Superior. Officials’ laissez-faire approach in making treaties with Indigenous communities, whose territories they were moving into, resulted in an armed insurrection at Mica Bay on Lake Superior in 1849.

 

Of course, now we know that the ideas of the European settlers contained many elements, such as harmful ideas of white supremacy, that are entirely inimical to civilization. In many respects, the development by Europeans of Canada result in the destruction of civilization and the imposition on Indigenous People of what might with more justification be called barbarism.

 

This was not a good start. But it got even worse.