…they, the said Chiefs and principal men, on behalf of their respective tribes or bands, do hereby fully, freely and voluntarily surrender, cede, grant, and convey unto Her Majesty, her heirs and successors forever, all their right, title and interest to, and in the whole of, the territory above described, save and except the reservations set forth in the schedule hereto annexed…. – Extract from the Robinson Huron Treaty
In 1850, by the Robinson Huron and Robinson Superior treaties, the approximately 1240 Indians inhabiting the shores and islands of Lake Superior, inland to the height of land, and the approximately 1422 Indians inhabiting the shores and islands of Lake Huron, inland to the height of land, a combined area stretching from near Penetanguishene, Ontario to the western end of Lake Superior, did “…freely, fully and voluntarily surrender, cede, grant and convey unto Her Majesty the Queen, Her Heirs and Successors forever, all their right, title and interest…” in and to the vast lands described in the treaties.
Such small numbers of Indians! Only 1422 in all of Northern Ontario, from southern Georgian Bay to Batchewana Bay, just north of Sault Ste. Marie! In the Superior region, only 1240 from Batchewana Bay to just east of Duluth, Minnesota!
These minimal numbers alone would again show clearly that, on the Indian side, these were not “nations,” in the modern sense of the word, that signed these treaties. They were, as stated above, merely small bands of clan-tied families, scattered loosely and tenuously over a vast landscape, which, to the extent that they defined or organized that landscape, did so only to informally divide it up into family or clan hunting territories.
These bands, given their very small numbers and their Paleolithic, migratory ways, despite roaming over and inhabiting these lands for centuries, had never exercised any effective occupation, possession or control over them. The brave, banned and shunned, (such a threat did his views represent to the new, burgeoning, Indian Industry, gravy-train order), Aboriginal writer and lawyer William Wuttunee, in Ruffled Feathers:
The idea that “Indians were the first owners of this country” and “the land was taken from them”, are misconceptions. At the time of the arrival of the white man, the Indian did not occupy all the country; therefore it cannot be said that the land was taken away from him. Those areas which were unoccupied were never taken away from anyone. Indians never owned Canada.
As stated, even their own Indian enemies had frequently invaded, pushed them around and caused them to flee.
The treaties extinguished “title” to territory all right, but it was “title” that Great Britain had legally invented in the first place for Indians, in the Royal Proclamation (which British legal invention was a basis of the Supreme Court’s proclamation of “aboriginal title” in Tsilhcot’in), and it was territory that Indians had never, in any real sense, effectively possessed.
And, in addition, as Samuel Johnson wrote, the treaties represented a “grant” by the Indians of something that it was impossible for them to keep in any event, and which, at the time of the signing of them, in terms of controlling who came and went to and from the territories, and what they did within the territories, assuming that they ever had any appreciable measure of control over them, they had by this time completely lost.
The Robinson treaties were signed in Sault Ste. Marie on September 7th (Superior) and September 9th (Huron), 1850.
An authoritative account of the signing of these treaties and most of the other treaties relating to the lands between Ontario and the Rocky Mountains is found in The Treaties of Canada with the Indians, by Alexander Morris, a participant in the making of some of them, published in 1880, and the source of many of the facts about the treaties set out in this essay.
Mr. Morris’ integrity, credibility and reliability as chronicler and witness to the events surrounding these treaties was very recently thoroughly vetted and endorsed in the 2011 Ontario Superior Court Keewatin case,1 (appealed successfully, but this part of the judgement was not affected-see below). There, not only was the conduct of Mr. Morris and other Crown representatives generally described in positive, approving terms, but his historical account of the treaty deliberations was heavily and approvingly relied upon by the Grassy Narrows First Nation plaintiffs in making their case, and by the trial judge in her lengthy decision in favour of their claims.
When reading these historical accounts what sadly strikes the reader is how easily and readily most of the Indians signed the treaties. It’s plain that in most cases they felt that they desperately needed what the Crown was offering, that they felt they had no other option but to, as Dr. Jenness wrote, cede their territories (not legally “share” them), and “…submit to confinement on narrow reserves….”
There were cases where this was not so, such as, as Mr. Morris wrote, the carelessness of some of the key Ojibway chiefs who negotiated the Northwest Angle Treaty in 1873 (see below) as to whether or not they signed it. But that carelessness was more a product of their bands having been until then, still off the increasingly-beaten path of European and Canadian travel and settlement, and thus, until then, less affected by it in terms of the loss of their old cultural and survival ways. Inevitably they too, with the happening of increasing Canadian settlement, fell into the same culture-ending behaviour patterns as the more ready and eager treaty-signers exhibited.
It appears nowhere in Mr. Morris’ accounts that the Crown was exerting any undue influence or improper pressure to force the Indians to sign against their will. What emerges from reading this fairly contemporary account of these events was that everyone, including the Indians, was aware that the old Indian lifestyle, based on self-sufficient bands roaming the lands on a seasonal basis to different fishing and hunting grounds, had so completely disappeared, had become so untenable and impossible, that the very survival of Indians, as Indians, who no longer had the will or the ability to live in the old ways, absolutely depended on making these agreements, on settling down on reserves, taking the cash payments being offered, the powder, shot and twine, the agricultural implements and the annuity payments, and embarking on some new way of living.
Like so often in history before and since, it was a situation of adapt or die, and the Indians of the time wisely chose to adapt. If there was “coercion,” it was circumstantial, not personal.
So the focus of the discussions and negotiations leading up to the signing of the treaties was not ultimately on whether the Indians would sign; it was on the terms on which they would sign. There were no British or Canadian army divisions present, camped ominously nearby.
In the Sault, the Crown was represented by only about four people, including Mr. William Robinson, the Crown representative, whose intention to be at the parley place was communicated in advance to the chiefs and “principal men” of the bands scattered along the shores of these two Great Lakes, together with an invitation to them to come and assemble for the purpose of discussing and making the treaties.
These band chiefs and principal men didn’t have to come. They could have stayed away. But they didn’t. They knew why they were being asked to come. There had been discussions between key Indian leaders and Crown officials in the years immediately before 1850. They knew generally what they would be agreeing to. And with this knowledge almost all of them paddled all the way there, (there’s plenty of time to reflect and reconsider when one is paddling over several days to a distant destination), eager to parley and agree. They wanted and needed what they knew, in general terms, would be on offer, because they knew that they and their people could no longer survive without permanent help from the Crown, which they believed the treaties would provide them.
The discussions and negotiations were amazingly brief. For the Superior treaty, Mr. Robinson discussed the terms with the Indians, obtained their agreement to them the same day, wrote out the treaty that evening and it was signed by the making of x’s, “cheerfully,” the next day. The same basic one to two day process was gone through with the chiefs and principal men of the Lake Huron bands, who, seeing the Superior treaty signed, their appetites sharpened and their doubts and minor objections quelled, quickly followed suit and signed the Huron treaty two days later.
Was there ever the formal closing of a peoples’ long, independent and storied era occasioned so easily, quickly and in such a tidy and businesslike fashion? There was neither a bang nor a whimper- just those marking of x’s on paper.
The treaties were drafted like contracts, with traditional contract structure and phraseology. There was the usual preamble setting out some of the background and the parties. There was the key contract phrase “in consideration of,” signifying each side giving up something and each side getting something, followed by a description, as precise as possible, of what each side was giving and getting. Finally there were signatures and marks, signifying agreement with the terms and an intention to be bound.
It’s acknowledged that the Indians who signed these and all the other treaties discussed in this essay couldn’t read. Because of this fact some people say today that the Indians were in effect tricked into signing, or signed under false pretenses.
But that’s not true.
Alexander Morris, whose treaty-making narratives are regularly relied upon by Indian rights activists to advance their causes in court (see below), relates that the main and profound gist of what the treaties said and meant was fully and faithfully communicated to the Indians, in their own language, before they signed them. There was a fair meeting of minds and little doubt that at the time of the making of the treaties the Indians understood their essential surrender-extinguishment meaning in the same way as did their British and Canadian counterparts.
The Robinson treaties, according to their terms, gave Canada sole and exclusive “right title and interest to” the territories ceded, that is, absolute Crown ownership and dominion over them, subject to the right of the Indians to continue to fish and hunt in them and “save and except the reservations set forth in the schedule hereunto annexed; which reservations shall be held and occupied by the said Chiefs and tribes in common, for their own use and benefit….”.
As stated above, twenty one reserves, the ones most of us in Northern Ontario are familiar with today, were set out and described in the schedules attached to the treaties.
In addition to reserves and permanent hunting and fishing rights on the lands ceded, the treaty gave the Lake Huron bands, collectively, as more or less a signing bonus, a lump sum payment of 2160 British pounds. It further provided that they would be collectively paid a further 600 British pounds a year, to be divided amongst the Indians individually, as an “annuity.” There were similar provisions in the Superior treaty.
There was an “augmentation clause” in each of the treaties, a provision whereby the annual payment might be increased. In this provision the Crown promised and agreed:
…that should the territory hereby ceded by the (Indians) at any future period produce such an amount as will enable the Government…without incurring loss, to increase the annuity secured by them, then and in that case the same shall be augmented from time to time, provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order...(italics added)
In 1874 the Crown raised the annual annuity to the treaty maximum, $4.00 per year per Indian in each treaty area, and for the last 140 years or so, always declining to be “graciously pleased” to exercise their sole discretion to increase it, every summer, a Crown agent has attended at each treaty reserve and made these $4.00 per “head” payments.
(Interestingly, there is a clause in the treaty, seemingly and inexplicably ignored by the courts and everyone else today (so very relevant does it seem as an interpretative aid), whereby the Indians promised not to “…at any time hinder or prevent persons from exploring or searching for minerals or other valuable productions, in any part of the territory hereby ceded….” This treaty promise is being routinely ignored by the Robinson Treaties bands today, but, in their defense, with the approval of our courts and the meek acquiescence of our Crowns (see below).
In 2014, as a sign of our times, the Robinson treaty bands sued Canada and Ontario, claiming that not only should they continue to receive all the non-treaty honour of the Crown payments and benefits they already receive, but they should also receive an increase annuity and a “collective” share of the “proceeds” derived by the Crown from the sale, lease or license of the Treaty lands retroactive to 1850, being what they claim to be their fair share of the developed Treaties lands.
On December 21st, 2018 the Ontario Superior Court of Justice, in its Restoule vs. Canada (Attorney General) decision,2 ruled that Canada and Ontario were liable- 50-50- to pay to the 21 Robinson Treaties bands a share of all the revenue that Ontario has received – yes, possibly going back to 1850-1875- from all sales, leases and licenses of Crown lands, less Ontario’s expenses incurred in selling, regulating and collecting that revenue.
This will involve legions of number crunchers going back over an approximately 150 year period, and will cost millions to do. The final payment to these Indian bands if this decision is carried out will likely be in the many millions- perhaps billions – of dollars. This payment money will have to come out of taxpayers’ pockets, because, as we know, Canada and Ontario are already virtually permanent debtors and are providing services to the citizenry only with the artificial and precarious aid of massive amounts of borrowed money.
The Court ruled in substance that Canada and Ontario, and thus the non-indigenous people of Canada and Ontario, acted dishonourably towards these Indian bands in carrying out the treaty obligations owed to them during this long period, by essentially, albeit unknowingly and unintentionally, short-changing them of their proper entitlements under these treaties.
When and if these payments are received by these bands, they will constitute payments received in addition to the non-treaty honour of the Crown payments and benefits described in Chapter 15, above, that Canadian taxpayers are already paying or conferring on Indian bands and individual indigenous Canadians.
While this may result in the appropriate legal “reconciliation” of “prior indigenous sovereign occupancy” of the subject territories with the new sovereignty of the Crown -the kind of legalistic “reconciliation” that was relevant to the Judge -(see the discussion in this regard in the Haida Nation case- chapter 23 below) -it will not lead to the personal, social, community and political “reconciliation” of Indigenous and non-Indigenous Canadians- it will not lead to social harmony on the basis of equality- which is the only kind of “reconciliation” that ordinary Canadians think of and want to achieve.
How did this come about?
From 1874 onwards, after raising the annuity to $4.00 per person per year, the Crown has always declined to be “graciously pleased” to exercise its, as evidenced by all parties’ post-Treaty conduct, sole discretion to increase the annuity.
Canadians, acting through their federal and provincial governments, the titular heads of which are the respective, entirely fictive “Crowns”, are racially decent and caring people. Over this period they have, as stated and described in Chapter 15, The Treaties: Fairly Made and Honourably Implemented, through their parliaments and “Crowns”, sensibly and honourably preferred to deal with the obvious inflation factor-problem inherent in the Treaties – ($4.00 will barely buy you a cup of coffee at Starbucks)- by, pursuant to their proper “honour of the Crown” duty to Indigenous Canadians, granting to them numerous necessary and life-enhancing payments and benefits, most of which, as stated, are not called for or required by the Treaties, or any other treaty.
In addition, with their new “consult and accomodate” de facto veto power granted to Indian bands by the Supreme Court of Canada, the Treaty Indian bands, and all Indian bands in Canada, are now able to demand and extract “impact benefit agreements” from any nearby resource project proponent as the price of securing their non-interference, consent and cooperation. (See chapters below.)These agreements are worth millions of dollars to these Indian bands. The costs of these projects have to rise accordingly, which costs are eventually passed on to and paid by all Canadians.
The Indian band victors in this lawsuit plan to keep all of the above payments and benefits and then add to them the substantial winnings from this lawsuit. In court cases this is called “double recovery” and because the effect of it is to enrich the victim instead of merely compensating him for his actual losses- merely restoring him financially to the position he would have been in had the “wrong” not occurred- is regarded as being inherently unfair- “inequitable” -and thus the law generally does not permit it.
There was no written promise in the Robinson Treaties to “share the land” or to “share the resources” or to “share the proceeds” derived by the Crown from the subsequent commercial or industrial development of the land. There was no recorded talk of this in the written accounts of the Treaties-making deliberations.
There was no written promise in the Treaties that the Crown had to increase the annuity at all. The Treaties wording made that matter entirely discretionary on the part of the Crown. There was no recorded talk in these written Treaties accounts of the Crown possibly being obligated to increase the annuity.
The Treaties wording clearly placed a “cap” on the annuity the Crown would have to pay. There was no recorded talk in these written accounts of that possibly not being so.
The Treaties were concluded on September 9th, 1850. On September 24th William Robinson, the Crown Treaties representative, wrote to his superiors and said:
I trust his Excellency will approve of my having concluded the treaty on the basis of a small annuity and the immediate and final settlement of the matter, rather than paying the Indians the full amount of all moneys on hand, and a promise of accounting to them for future sales.
Believing that his Excellency and the Government were desirous of leaving the Indians no just cause of complaint on their surrendering the extensive territory embraced in the treaty; and knowing that there were individuals who most assiduously endeavoured to create satisfaction among them, (a few aboriginal negotiators had wanted $10 per year annuity- author) I inserted a clause securing to them certain prospective advantages should the lands in question prove sufficiently productive at any future period to enable the Government without loss to increase the annuity.(emboldening and italics added)
In 1880 Alexander Morris wrote in relation to the Treaties that they were intended “to extinguish the Indian title”, and further:
The main features of the Robinson Treaties- viz, annuities, reserves for the Indians, and liberty to fish and hunt on the unconceded domain of the Crown- having been followed in these treaties. A special feature of the Robinson Treaties, was the adjustment of a claim to be paid, the amount received, by the Government, for the sale of mining locations. This was arranged, by Mr. Robinson, agreeing to pay them, the sum of 4000 pounds and an annuity of about 1000 pounds, thus avoiding any dispute that might arise as to the amounts actually received by the Government. The number of Indians included in these treaties were stated by Mr. Robinson to be: on Lake Superior, 1240, including 84 half-breeds; and on Lake Huron 1422, including 200 half-breeds. (italics added)
Clearly, the intention and belief of the Crown at the time, as evidenced by these writings, and as reasonably inferred from the wording of the Treaties, was that the Indian Treaties signers had ceded and surrendered, once and for all, all of their right, title and interest in and to the Treaties lands, with no residual obligation on the Crown to do anything other than comply with their side of the bargain, which side did not include financially accounting to the Indian signers, then or in future, or to their descendants, for subsequent Crown dealings with the surrendered lands.
And this appeared to be the intention and belief of the Indian band signers as well, and of their descendants, at least up until the early 21st century, as evidenced by their post-Treaties conduct, which confirmed that all they ever expected in terms of the annuity, however paltry the amount might be- however dissatisfied with the amount they might be- was that it was fixed, capped and, more importantly to the present purpose, that the Treaties, taken overall, did not entitle them to additional amounts in the form of a “collective” share in the “proceeds” received by the Crown from the sale, lease or licensing of the surrendered lands, or any accounting of same.
The historical record shows that in the period 1850-1884 there were a few isolated complaints from Chiefs about the quantum of the fixed annuity- $4.00- but no suggestion that the Treaties entitled them to a collective share of Crown land development proceeds- no claim for “a cut of the action”- and no suggestion or claim that they could legally demand that the Crown review the $4.00 and then be forced to increase it if the Government would not suffer a “loss” in doing so.
And after 1884 the conduct of the Indian bands which signed the Treaties was consistent with the Crown’s intention and belief as to the various relevant meanings of the Treaties as stated immediately above.
So for about 150 years after the Treaties were signed, based on the conduct of both parties, always a key factor when interpreting a vague or ambiguous agreement, there seemed to be agreement on what the Treaties meant and how the Treaties obligations were to be performed. Their mutual, consensual, “without protest” conduct “proved” the true terms of the agreement, “proved” that the way it had always been since 1850 was the true, proper way, and that it did in fact reflect the common intention of the Treaties signers.
And Northern Ontario was economically developed and regulated, and Canada’s and Ontario’s fiscal planning, through this long usage and practice, became based on these reasonable assumptions.
Now all this is turned upside down.
So what was the Court’s reasoning in Restoule?
The Restoule decision is 135 pages long. It is a thorough (within its own belief parameters), fascinating, well organized, very well written decision by an excellent and caring Judge.
But the Judge’s ruling is ill-founded.
The conduct of the trial had unusual and unprecedented aspects to it.
It lasted for many days. The Court moved around to different judicial seats- Thunder Bay, Sault Ste. Marie and Sudbury- seeming to reflect the pan-Northern Ontario nature of it. That was appropriate.
But, and this was unsettling, the Court also sat at the Garden River Reserve near the Sault, the Fort William Reserve near Thunder Bay, and at Wikwemikong, on Manitoulin Island, the latter an unceded (by Indians) part of Canada. These are not legislated judicial seats for Her Majesty to hold Court.
The plaintiff Indian bands were taking the position that the Treaties were “nation to nation” agreements, (which position was basically confirmed by the Court), thus raising reasonable questions about the appropriateness of the Court of the nation of Canada sitting at a location owned by an alleged other “nation” that was suing it. The impression was given that by holding Court on Indian reserves, amongst other unprecedented and unsettling conduct, the Court was conceding aspects of its own sovereignty and buying into the plaintiffs’ extremely flawed and fantasy-based “nation to nation” concept, which concept was highly relevant to the outcome of the case.
A pole was erected by the plaintiffs in the front of the Courtroom, with the consent of the lawyers for Canada and Ontario, and with the permission of the Judge, and present for all Court days, called by the plaintiffs an “Eagle Staff”. It was placed in the well of the Court, in front of the bar, near the Court Clerk, from which hung some beautiful eagle feathers. Obviously this was of professed spiritual significance to the plaintiffs. As stated, the parties and the Judge had agreed to permit the plaintiffs to erect these symbols of Anishinaabe culture, and perhaps separate sovereignty, in the Courtroom. In my opinion this was very wrong and inappropriate.
It is unsettling and unprecedented for there to be any symbols of government in the Queen’s Courtroom, other than symbols of the Government of Her Majesty the Queen, to whom everyone in that Courtroom had sworn sole loyalty to.
In this general regard the Court wrote:
The First Nations were warm and generous hosts when the court convened in their communities. As a court party, we participated in Sweat Lodge ceremonies, Pipe ceremonies, Sacred Fire teachings, Smudge ceremonies, Eagle Staff and Eagle Feather presentations, and Feasts. During the ceremonies there were often teachings, sometimes centered on bimaadiziwin- how to lead a good life. Often teachings were more specific (e.g. on the role of the sacred fire, the role of the sacred medicines, or the meaning and significance of the ceremonies.) The entire court expressed their gratitude for the generosity of the many knowledge keepers who provided the teachings. I believe I speak for the counsel teams when I say that the teachings and the hospitality gave us an appreciation of the modern exercises of ancient practices.
Miigwetch. Miigwetch. Miigwetch.
It is unprecedented for a Judge to socialize with the litigants in a trial over which he or she is presiding. To the extent that the Judge in Restoule was, by participating in these “teachings, ceremonies, presentations and Feasts” for the purpose of better understanding the plaintiffs’ alleged “ancient practices” with a view to better informing herself about the “Anishinaabe perspective and worldview”- a trial issue- it is unprecedented that this evidence- unsworn- would be adduced outside the Courtroom.
The presiding Judge’s intentions in allowing and participating in all of the above were noble and were done in the spirit of “reconciliation”, however understood. She characterized the trial as “a proceeding of respect and an exercise in reconciliation.”
But this gave off the appearance of bias in favour of the plaintiffs. The Court, in participating in all of the above activities, most of which took place outside the Courtroom, and particularly those which took place at the personal “homes” of some of the plaintiffs, also created the whiff of bias and of “descending into the arena” of conflict, which Courts are not supposed to do.
No explanation of this unprecedented judicial conduct was given in the Decision, other than, as stated by the Judge, it perhaps it being part of the “proceeding of respect and an exercise in reconciliation.”
(Shouldn’t the Court have just adjudicated the case, entirely within the Courtroom, in the usual impassive and impartial fashion? Is it really the function of a Court to engage in the social and political goal of “reconciliation”? Or is that solely the duty of our Crowns, represented solely by our parliaments, and, more importantly, on a social/citizenry level, mainly the civic task and duty of the ordinary people of Canada? Is bringing about social/political “reconciliation” an appropriate objective for a Court, facing competing claims between adversaries, simply because one of those adversaries is Indigenous? Isn’t this creating more purely race-based inequality under the law? Was this unprecedented conduct considered necessary to better adjudicate the legalistic form of “reconciliation”, which was supposed to be the Court’s main task? The decision is unclear on these and many other similar important questions arising out of the Court participating in all these unprecedented out-of-the-Courtroom activities.)
The issue of “Anishinaabe perspective” and “worldview” was very relevant in this case, and all these unprecedented events and occurrences, both in the Court and out of Court, gave the appearance that the Court was favouring the plaintiffs’ professed “Indigenous” perspective and worldview over… what, the “non-Indigenous perspective and worldview”? (Which is what? Which is different? No, which in fact, in my opinion, is no different in any fundamental way! “There Is No Difference”.)
The Court never described how the non-Indigenous perspective and worldview purportedly contrasted at the time with that of the Anishinaabe’s. It seems to have been just assumed, without argument or explication, to be materially different.
No out-of-Court visits were made to the defendants’ “homes”.
In her decision the Judge used ahistorical terms.
The actual Treaties were with “Ojibwe” “bands and tribes.” Instead, the Judge called the Ojibwe “Anishinaabe”, which they wish to be called now, and generally are called now. It now has political use and connotations. She indicated that she was doing this to “adhere to contemporary scholarly practices.” But little in the historical record before the Court seemed to refer to the “Anishinaabe.” Why not use the terminology found in the historical documents?
The Judge sometimes called Sault Ste. Marie “Bawaating”. But again, there was little or nothing in the evidence reviewed in the Decision where the Sault was called Bawaating.
Instead of using the term used in the Treaty reports, “half-breeds”, as William Robinson did, the Judge used the term “Metis”, which term I believe originated in the Winnipeg area around 1870- 20 years after the Robinson Treaties were signed.
The Judge called the Treaties signatory Indian bands, which were called “bands” in the Treaties, “First Nations”- a very modern, romantic, essentially non-legal, politicized term, and possibly a different thing from “bands.”
It’s a well-known trial strategy for a lawyer to try to define the terminology. The more a lawyer can control the terminology used the more he can control the desired outcome. The plaintiffs’ lawyers must have been so inwardly satisfied to hear all of these terms used.
The use of these ahistorical terms, in my opinion, gave the appearance that the Court was keeping a weather eye out for fashionable, politically correct, modern, politicized terminology, rather than letting the cold historical record, with all of its dated and perhaps uncomfortable terms, speak for itself. In a Courtroom legally accurate terms, derived from the Court record, are usually used instead of politicized, non-legal terms. Again, to me, this all gave the appearance of bias.
In her decision the Judge said that she had heard the evidence of four “Elders” and three Chiefs. She said that they were not experts, but then she seemed to accept everything they said as if they were experts! Their evidence was particularly relevant and crucial in the Judge’s findings on the professed “Anishinaabe perspective and worldview” and how that informed their thinking about what the Treaties might have subjectively meant to the Chiefs and Principal Men who signed them over 165 years ago.
The Court found that, according to the Anishinaabe perspective and worldview, the Indian bands regarded “the Queen”, with whom they were treating, as “fictive kin”, with whom they were entering into a nation to nation-type, “alliance”, reciprocal relationship of trust, mutual and equal benefit, responsibility and renewal. They thought that the treaty relationship was “a reciprocal relationship between independent entities” in which the mother Queen owed certain duties to the Indian band “children”. The “alliance” aspect involved “shared spaces and resources.” A cultural-survival value was annual presents, and gift-giving generally. Their spirituality was pantheistic. All this informed the “perspective on the Euro-Canadian incursion on their land.”
The Court found as a fact, disagreeing with much evidence to the contrary, that the Indian bands’ cession of the Treaties lands was a “gift” to the Crown, given with the “cultural expectation of equal reciprocity” i.e. that the future proceeds of the Crown development of the lands would be shared.
The Court found that the Crown was “broke” in 1850, and offered as an inducement for the Indians to accept a low annuity amount, compared to what Indians had been paid in Southern Ontario, the prospect of future revenue sharing if and when the Treaties lands were ever developed. On this Court reasoning, the Crown would defer fair payment to the Indians of their fair share to “later”.
The Court found, focusing entirely on the technically legal, and with no discussion of or regard for the actual facts on the ground at the time, that the Crown needed the full consent of the “Anishinaabe” to further access the wealth benefits of the territories, and accordingly offered the “inducement” of the augmentation clause to get that full consent, and that without this inducement there would have been no Treaties. This is highly speculative.
The Court found, mainly on the basis of speculation and drawing inferences from minor facts, that the Crown intended to share these future revenues with the Indian bands, if the “vast and sterile” Treaties lands were ever developed profitably, and in fact had “promised” to do so. (The Court did not say that there had been an actual promise. There was no evidence of that. The Court deemed there to have been a promise, based on the Honour of the Crown and fiduciary doctrines. See below.)
The Judge did not accept, because of the worldview differences she found to have existed, that the Indians understood the Treaties in the same way William Robinson did. The Judge disagreed with the assertion of William Robinson, and of the interpreters, that the Indians understood the Treaties in the same way as he did.
The Judge could not conclude, because of the in-essence “cultural barriers”, that the augmentation clause was properly explained to the Indian representatives, as the “honour of the Crown” dictated that it must, or that the Indian signers properly understood the Crown’s clearly-expressed view of its entirely discretionary nature.
The Court found that the Treaties were not one-time agreements, as the Crown had clearly thought. They were “future oriented agreements situated within an ongoing relationship”, and that this relationship must be “reviewed” and “renewed” as circumstances change over the years. (The Court recommended that the parties enter into discussions to review and renew the Robinson Treaties.)
The Court found that the presence of the augmentation clause in the Treaties, because of the obligation of the Crown to always act honourably towards Indian bands, meant that the Treaties contained an implied obligation to engage in a process to implement the augmentation clause- that this was a legal, constitutional right of Indians arising from the honour of the Crown and fiduciary duties that the Crown owes to Canada’s Indians. This means that the Crown must exercise the discretionary power in the augmentation clause to engage in the process of evaluating whether an increase in the annuity is warranted, that there was no “cap” on same, and that the Crown must value the Indian bands collective “sharing the proceeds” entitlement, which she ruled existed, which collective entitlement also had no “cap”, and which entitlement would properly reflect the “value” from time to time of the Treaty territories.
The Court found that the honour of the Crown meant that the Crown must exercise its discretion to start the process with a view to increasing the Treaty benefits, and the Crown must not be “legalistic” when dealing with Indian bands.
The Court found that the Crown, over the past 150 years or so, had “neglected” and “ignored” these (deemed) “promised” obligations, and that the Indians had been “waiting without a word from the Crown for over a century” for the Crown to engage in the review process, and that they had “reached the end of their patience.” (There was no evidence set out in the Decision to support any of these latter assertions.)
The Court found that the fact that for over 150 years the Indian bands never complained about the basic situation did not mean that they did not expect to receive a share of the proceeds from the Crown’s development of the Treaties lands. Basically, the “honour of the Crown” and fiduciary principles prevented this argument from being either advanced or accepted.
So, those are the salient points of this momentous Court decision as I see them.
The “Honour of the Crown “ principle, and the fiduciary principle, the two principles so heavily relied upon by the Court to decide virtually every evidentiary and legal issue in favour of the Indians, were only seriously developed after the passage of the “blank slate” section 35 of the Constitution Act in 1982. After that the Supreme Court filled in this blank slate with new interpretations of the law, many of which, like the consult and accommodate obligation, were, with all due respect, basically invented out of legal thin air. The Judge in the Restoule case applied several of these principles. (See my chapters on the Haida Nation, Mikisew Cree and Rio Tinto cases, below, where these principles are discussed at length.)
Based on these modern doctrines, (or old doctrines re-defined and re-applied in a thoroughly modern and radical way), which didn’t exist until the 1980’s or so, the Court re-interpreted the Treaties in a new way and made her re-interpretation retroactive to 1850, and found, in my view unfairly, that the Crown breached honour of the Crown and fiduciary duties owed to the Treaties signers in the 1800’s and early 1900’s (which at the time didn’t exist, and which the Crown couldn’t have precisely known about or have predicted would come into existence in the future.)
Likewise, the Crown couldn’t have “ignored” what it didn’t know about. The Court took these recently-developed doctrines and, as stated, imposed them retroactively. It is submitted that this was not reasonable or fair. So it makes no sense for the Court to say that the Crown was “neglecting” a duty that it didn’t know about at the time, or breaking a “promise” that it didn’t know it had made.
The Honour of the Crown and fiduciary doctrines and now the “reconciliation” approach invented by the Trudeau government (and wholly adopted by the Judge in Restoule) seem to be being applied so strictly against Crowns in Indigenous-Crown cases that the Crowns are unable anymore to fully and properly defend themselves, and to defend the non-Indigenous citizens and taxpayers of Canada. As stated elsewhere herein, any vigorous defence of Crown sovereignty, which “vigor” is required by lawyers’ rules of ethics, seems to be deemed unseemly and “not honourable” towards Indigenous claimants. Crown lawyers seem to be hampered and somewhat intimidated by this, as if they felt they had to represent their client’s interests, (in this case the client in substance being the non-Indigenous people of Ontario and Canada), with one hand tied behind their backs. Is this why the Crown lawyers here agreed to the Eagle Staff being allowed to be placed in the well of the Court? Is this why they agreed to participate in the “teachings, ceremonies, presentations and Feasts”?
The Court said that the plaintiffs’ had the onus of proof, but then seemed to apply, based on the “Honour of the Crown” and fiduciary doctrines, a reverse onus on the Crown throughout.
I submit that the evidence of the Elders which the Judge clearly relied upon to find that there was a separate and distinct “Anishinaabe perspective and worldview” that materially informed the Indian bands’ understanding of the Treaties, and which so caused them to purportedly misapprehend the fundamental tenor of the Treaties, when they had been clearly orally explained, in their own language, and had been clearly written down and read over again in their own language, ought not to have been so completely accepted and relied upon.
By 1850 the Treaty peoples had been exposed to Europeans, European technologies and European thought for almost 250 years. They had been co-opted- voluntarily- into the fur trade, and were an integral part of it- a capitalist undertaking par excellence. As the Court wrote, “Garden River band members sold great quantities of maple syrup and fuel wood for the steamers. Many worked seasonally for trading companies as canoe-men and freight haulers for the HBC.”
Many of them had married, or at least mated, with Europeans. Witness the significant number of “half-breed” Treaty beneficiaries mentioned by William Robinson. One can’t mate with a Euro-Canadian, or trade or otherwise interact with them, and not have a pretty good idea of their “worldview”. Many Anishinaabe had been Christianized by this time. Some of them had fought in the War of 1812.
As fully argued in The End Times of Indian Cultures in Canada, above, they were by then fully dependent on European goods and weaponry. A couple of their prominent leaders had travelled to Toronto and Montreal in the late 1840’s to discuss the possibility of a treaty. Full surrender and cession of title had already been discussed beforehand.
It defies common sense and common experience to think that, in the midst of all this cultural mixing and borrowing- all this “cultural appropriation” of Euro-Canadian ways and means by the Anishinaabe– that the “Anishinaabe perspective and worldview” described in Court by the “Elders”, whose evidence was based on the notoriously unreliable “oral tradition”, could have survived in the intact state described in Court and accepted by the Judge.
I submit that this evidence was romantic, self-interested, sincere but wishful thinking, and ought not to have been deemed so reliable and accurate by the Court so as to be one of the principal foundations of the Court’s Decision. I submit that the Decision is flawed and incorrect because of the Court’s acceptance of this overly-romantic, overly-idealistic, “Noble Savage” view of the social state of Anishinaabe affairs in 1850.
The Court here has ignored and overturned over 150 years of established practice and conduct by the parties.
The economic development of Northern Ontario has occurred based on this established practice and conduct. Rights and interests, public and private, have been created. Government policies, legislation, budgets and programs have been set.
The rationale behind the legal principles of laches, (delay),detrimental reliance and estoppel definitely exists here, based on these established practice and conduct factors. But because of the strict, almost “anti-Crown” nature of the Honour of the Crown, fiduciary and “reconciliation” doctrines, they are generally legally unavailable to the Crown.
(I argue in Chapter 41 below, Rethinking the Honour of the Crown Principle, that because of the tremendous new economic and legal powers granted to Indian bands by the Supreme Court, that the “Great Mother and her children” dependency/vulnerability concept, which underlies the Honour of the Crown and fiduciary doctrines, is no longer relevant, and that the doctrine should be in effect “reviewed and renewed.” and applied much differently than the Judge did in Restoule. With great new powers for Indian bands should come great new responsibilities and some concessions given for those new powers.)
The status quo should not have been so easily jettisoned by the Court.
Finally, this decision continues the trend on the part of our elites, Indigenous and non-Indigenous, to continue to further divide Canadians on the basis of race. It will cause racial tension. The opposite of “reconciliation” will occur.
It is actually shocking that the Court would think it reasonable to double-down on the perpetuation and expansion of an antiquated, race-based, separate but equal, apartheid-like social and political model, that is, on a daily basis, causing so much harm to the vast majority of vulnerable, marginalized, dispossessed Indigenous Canadians, who will derive no net benefit from this decision. The benign and unintentional “systemic racism” inherent in the Indian Act, the reserve system, section 35 of the Constitution Act and in the cases decided under it, will continue and strengthen.
This decision, if carried out, will only increase the learned helplessness characteristic of reserves. Only the Indigenous elites and the legion of non-Indigenous technocrats that will be needed figure it out and carry it out will gain short-term benefits. There will be no long term benefits for anyone.
The decision is great for the lawyers and the accountants but not for Indigenous Canadians, or for Canadians in general.
It will create a precedent for the other treaties discussed in this book (below) and every other non-modern treaty in Canada to be challenged on similar “Indigenous perspective and worldview” grounds. Other treaty challengers will similarly say, if they think it to their advantage: “We didn’t and don’t understand our Treaty in the same Euro-Canadian way you did. We want our treaty reviewed and renewed. We want to keep the non-treaty honour of the Crown payments and benefits we get, plus, we now want our collective share of the value of the lands we agreed to share with you, retroactive to when our forefathers signed the Treaty.” (With interest?)
The decision will seriously destabilize and harm the already fragile Crown revenue. It further dangerously erodes Crown sovereignty, the fount and foundation of the rule of law and a strong economy.
You do not emerge from the isolation of one form of racism to enter and confine your country to another and further isolating form of it. (Nadine Gordimer, below)
This decision prevents Canada’s anachronistic treaties from ever becoming civically vestigial. It contemplates an infinite, never stable, ever-changing, race-based relationship between ordinary and Indigenous Canadians, It is demoralizing for all Canadians who believe in a true coming-together of all Canadians, regardless of race.
Ontario has appealed this decision. To its shame, in the name of “reconciliation”, the foolish Trudeau government has not.
Our elites must start thinking of ways, based on Nelson Mandela’s goal and vision of “one set of laws for all”, to bind us together, instead of, as the Restoule decision does, bind us apart.
- Keewatin v. Minister of Natural Resources, 2011 ONSC 4801.
- 2018 ONSC 7701