33. THE 2012 ALGONQUIN LAND CLAIMS SETTLEMENT AGREEMENT: THE DEAL OF THE (19TH) CENTURY

Instead of building racial walls between its citizens it should be both the  duty and the interest of government to be removing them altogether. – Author

The Canadian people, through their governments, have the legal obligation to resolve in good faith Indian land claims. In so doing we must, through our governments, “recognize and affirm” the existing aboriginal and treaty rights of Indian-Canadians i.e. existing before the 1982 passage of section 35 of the constitution. But there’s no constitutional obligation to create new rights for Indians by way of new treaties or agreements. That’s a profound, political choice our government elites make on our behalf.

Our federal and Ontario political and bureaucratic elites have made that political choice, more or less in secret, based on, amongst other things, very questionable historical justifications and an outdated and harmful interpretation of the Crown honour principle, (see Rethinking the “Honour of the Crown” Principle, below), to negotiate a Preliminary Draft Comprehensive Land Claim Agreement-In-Principle 1 with the Algonquins of Ontario, a group of loosely connected, somewhat fractious, very distantly related (if at all), and thoroughly modern and assimilated Indians and Indian bands, comprising in total only about 8000 people, (the illegally blockading Ardoch band, the protagonists in the Frontenac Ventures case (above) are part of this group.)

The basis of treating with these small, somewhat artificial collectivities is presumably the shopworn notion that they and their ancestors have occupied the lands since “time immemorial”, and that they have never surrendered them by previous treaty. Both presumptions are suspect- at least suspect enough that the provincial Crown, instead of throwing in the towel and agreeing to surrender vast degrees of possession and control of them, as they are purporting to do, should, on behalf of all Ontarians, and to preserve sole Crown sovereignty over these vital parts of central Ontario, be fighting the Algonquins hard on this.

The late North Bay historian Roy Summers provides considerable evidence to the effect that the Algonquins were permanently driven out of the treaty settlement area by the Iroquois in the mid-1600’s, and only straggled back, in very small numbers,  in the 1840’s, along with Canadian settlers, to work mainly in the lumber industry.

Historian Alfred Goldsworthy Bailey:2

But earlier than the Hurons the Algonkin peoples were middlemen (on the lower Ottawa River) and therefore held the balance of power. After the decline of beaver in their own areas they attempted to make themselves the carriers by exacting a toll on the Hurons who attempted to descend by the Ottawa route…The Iroquet, and the Petite Nation Algonkins on the lower reaches of the river, were soon dispersed by the Iroquois. We have seen that many of them fled to Three Rivers, Sillery, Quebec and Tadoussac. This movement contributed to the breakdown in cultures that had flourished in isolation.

The (Allumette) Island Algonkins alone resisted the disintegrating influences of war, disease, drunkenness, and Christianity…Their resistance to Christianity was one aspect of their attempt to maintain their place as middlemen in the trade, as it was also a fight against disintegration and decay…But by 1643 they  were all “nearly ruined and reduced to nothing.”

In 1654 Paul Tessouat, formerly the chief of the Island Algonkins and great opponent of the French,  died, it is said, in Christian humility. The date marks the end of the Island Algonkins as a major economic and  political force in the history of New France. By 1658 they were “running the risk of total destruction…For the Iroquois is playing his last stake, having left his country to go and exterminate them.”

The renowned historian, Francis Parkman, in The Jesuits of North America, (see Pre-contact Indian Culture and the Shock of the New, above), quotes the Jesuit priest Ragueneau, writing in a Relation, in 1650,  of the dispersal of the Algonquins from the Ottawa Valley:

The River Ottawa was a solitude. The Algonquins of Allumette Island and the shores adjacent had all been killed or driven away, never to return.

See also the reference in this regard to The Great Dispersions, 1648-1653, (in  Pre-contact Indian Culture and the Shock of the New, above).

The dispersal of the Algonquins was reflected in a 1682 map attributed to Claude Bernou, (found in La Mesure d’un Continent, above), where the entire treaty settlement area is shown as Iroquois territory.

This remained the case for most maps made in the 1700’s, where if Algonquins were indicated at all, they were usually shown as inhabiting the Quebec side only of the Ottawa River, and usually much inland, because their fear of the Iroquois.

A 1775 map, the “John Mitchell map… the map used by the Treaty of Paris negotiators to agree on a boundary between the United States and what would become Canada”,3shows the area in question as being inhabited by the “Northern Iroquois“.  In the middle of the area, just about where Algonquin Park is, are the words:

By the several Conquests here mentioned, the Territories of the Six Nations extend to the limits here laid down; which they have been in Possession of about 100 Years.

A 1794 British map- The United States of America with The British Possessions of Canada, Nova Scotia, New Brunswick and Newfoundland divided with The French, also The Spanish Territories of Louisiana and Florida according to the Preliminary Articles of Peace Signed at Versailles the 20th of January 1783– made to show the division of North America at the conclusion of the American Revolution, shows the settlement lands as being inhabited by the Iroquois.

An 1800 British map- A Map of the Province of Upper Canada describing All The New Settlements & Townships with the Countries Adjacent from Quebec to Lake Huron– shows the treaty settlement lands as part of the “Chippewa Hunting Country“.

The Chippewa were part of the Ojibway family of tribes-not Algonquin, who “lived in the forested lands draining into Lake Superior and Northern Lake Huron.”4

Historian Joan M. Holmes, in her paper, Hidden Communities; Research Difficulties encountered in Researching Non-Status Algonquins in the Ottawa Valley, 1998, confirms that for a very long time the remains of the decimated Algonquins, after they had been expelled by or fled from the Iroquois in the mid-1600’s,  lived mainly at Lake of Two Mountains and  Maniwaki, Quebec, again, far inland from the dangerous shores of the Ottawa River, and a few other places in Quebec.

She could come up with no records of Algonquins being in the settlement lands before 1800, and only sparse records of very small, family-oriented numbers of them returning in the mid-1800’s from their long exile (almost 200 years!) to work in the lumber industry, and probably do a little secret hunting, fishing and trapping on the side.

Roy Summers lists the 1923 Williams Treaties, and the land purchases entered into in the mid-1800’s, by which the occupants of the subject lands, including some Algonquins, surrendered whatever rights to  them they may still have had, including their hunting and fishing rights.

So there’s a lot of evidence and good faith arguments to refute and deny the present Algonquin land claim, but the Ontario government, to its inexplicable shame, is deliberately pretending that this evidence and these arguments don’t exist, and deliberately using none of them.

The citizenry deserves to know why.

The Ontario government is also refusing to make public all the research evidence they are relying on to support their decision to surrender large measures of possession and control of the settlement lands to these present Canadians, who say they are “Algonquins”, and presumably are advancing a highly debatable claim that they have occupied the lands since “time immemorial”.

Why won’t our government release all the research evidence they are supposedly relying on? It’s shameful and anti-democratic that they won’t. It’s elitist. It infers that they don’t trust their own research, are ashamed of what they have done, and don’t trust the citizens of Ontario- the people who pay their salaries and who they work for- with this information.

Why are they surrendering up Crown land to this tiny, select group of Canadians without a fight, when there is so much evidence and so many good faith arguments upon which to mount a defence, not the least of which is that the Algonquins seem to have been dispossessed of these lands, by other Indians, for upwards of 200 years!

(In December, 2016 an Algonquin band from Maniwaki, Quebec sued Ottawa and Ontario, claiming aboriginal title and ownership of parts of Ottawa from LeBreton Flats to Parliament Hill (!)5 Again, the evidence above of complete, ancient and long-standing  Algonquin loss of possession and control of the entire Ottawa River valley- of Algonquin fearful-living in inland Quebec far away from such completely exposed (to the Iroquois) and dangerous places like LeBreton Flats and Parliament Hill-  should be used to mount the most vigorous and uncompromising defense of this reckless, irresponsible, grossly self-entitled and insulting attack against the Canadian people and our national capital- against our symbolic and substantive  heart of Crown sovereignty.)

Why do the citizens of Ontario have to rely on the internet offerings of dedicated amateurs like Roy Summers to hear the other side?

Mr. Summers’  work is a good example of the internet “flattening hierarchies everywhere they exist.”

We no longer live in a world in which the elites or accredited experts are able to dominate conversations about complex or contested matters. Politicians cannot rely on the aura of office to persuade, newspapers struggle to assert the superior integrity of their stories. It is not clear that this change is, overall, a boon for the public realm. But in areas where experts have a track record of getting it wrong, it is hard to see how it could be worse. (italics added) From The Sugar Conspiracy, by Ian Leslie.6

To paraphrase Mr. Leslie, (he was writing about the history of nutrition and the crushing of all scientific opposition by the sugar interests), if there ever was a case that an information democracy, even a very messy one, is preferable to an information oligarchy, then “the other side of the story”of this shameful surrender of vital Crown lands to these so-called ” Algonquins”, as set out by Mr. Summers on his website, is one.)

It’s another example of trahison des clercs.

This agreement, if it finally goes through (it has to be ratified by Parliament and the Legislature of Ontario), will profoundly and negatively diminish and erode Crown sovereignty over a vast swath of Eastern Ontario roughly comprised of all of Ontario east of a line running from just north of North Bay and then in a south and south-easterly direction to just north of Kingston, this huge chunk of Ontario, in the agreement, called the “Settlement Area.”

It will grant unprecedented, new, government-like rights to this tiny group of Ontarians over large parts of the Settlement Area – rights vastly disproportionate to their small numbers, to their need to possess them and to their will or ability to exercise them competently, responsibly, equitably and for the general welfare and benefit of all Ontarians, regardless of race or origin.

But of course that last point is the point. The Crown lands within the Settlement Area being surrendered to them (the “Settlement Lands”) – 117,500 acres in all, and with forestry, water and mining rights attached – will no longer be intended to be owned and managed by and for all Ontarians. They will no longer be intended to form part of our common land capital which all Ontarians – all Canadians – since before Confederation, have shared and been joint custodians and beneficiaries of.

These Settlement Lands – and the $300 million cash payment being made to this little group of mainly rural and small-town Canadians – are intended to be deducted or withdrawn from, or charged against, the shared resources, land and financial, owned and possessed by all Ontarians, regardless of race, and will be deeded over to them in perpetuity for their sole and exclusive property tax-free use and benefit.

But luckily, because it still has to be ratified, there’s still time for cooler, wiser (and politically much braver) heads to prevail. And even if it is ratified it would still be a mere agreement to agree. It is, as it says, “…a non-binding statement of the main elements of the settlement of the Algonquin Land Claims that will form the framework for future negotiations towards a Final Agreement.” As it also says, its purpose is to “clarify” Algonquin rights under section 35 of the constitution- rights that, after being “clarified,” will then be “recognized and affirmed” under section 35.

This is nonsense. There is no real “clarification” of rights happening here. What is happening here is the creation, from Haida Nation-inspired scratch, of massive, new, unprecedented, quasi-contractual, race-based  rights in favour of this small group of widely scattered Ontarians, in circumstances where, by and large, no such rights, clear or unclear, were ever possessed by them before.

The forced march continues  towards an unprecedented and harmful third, aboriginal fount of constitutional sovereignty (see “The Imperative of Sole Crown Authority” below) started by Haida Nation and, for non-treaty areas of Canada, continued by the Supreme Court of Canada in the Tsilhqot’in decision, and even more recently by B.C. adopting UNDRIP (and Ottawa having promised to do so), relentlessly  continues.

This “Agreement in Principle” gives much more to this small group of Ontarians than $300 million and suzerainty over 117,500 acres of Crown land. It also gives them consult and accommodate-like rights, privileges, powers and influence over hundreds of thousands of additional acres of Crown land, including virtually all the provincial parks in the Settlement Area, including Algonquin Park. It gives them the same consult and accommodate rights etc. to certain additional land in the Settlement Area called “Area of Algonquin interest,” being certain Crown lands “…that are of cultural and historical importance to the Algonquins….”

Solid Gold’s thousands of acres of mining-staked Crown lands were Indian self-styled “areas of Wahgoshig interest.” Recall how that worked out for Solid Gold. Recall how Ontario favoured Wahgoshig at every turn of the dispute and left Solid Gold’s interests to twist, twist slowly in the wind.

Recall the Frontenac Ventures  case, a situation involving some of these same Algonquins, or the Platinex and Caledonia cases. Recall those situations and all the other similarly lawless ones where the Ontario government and the OPP consistently turned their backs on and abandoned to their respective, humiliating fates the non-Indian victims involved. Eastern-Ontarians have no reason not to expect more of the same abandonment treatment from their political, bureaucratic and police elites in any dispute they may find themselves helplessly caught up in involving these new Algonquin rights and interests.

And there will be many disputes and conflicts.

Gravel pit owners in the Settlement Lands will eventually have to negotiate new leases with their new Algonquin landlords. Trapline holders and government land use permit holders in the Settlement Lands (for such things as hunt camps and remote wilderness location camps) will eventually have to negotiate new agreements with the Algonquins. Tourist camp operators with baitfish harvest areas or bear management areas in the Settlement Lands will eventually have to negotiate new arrangements with their new Algonquin landlords. Forestry licences on Settlement Lands, when they expire, will have to be re-negotiated with the Algonquins.

In fact, forestry operations anywhere in the entire Settlement Area will become subject to the obligation to “increase Algonquin participation in, and benefits from” the forestry industry generally. This is simple code for all non-Indian forestry operations in Eastern Ontario eventually having to enter into “sign or else,” danegeld-inspired impact benefit agreements with the Algonquins. In relation to all this, expect reports of the same kind of unreasonable demands being made against these vulnerable, helpless, non-Indian businesses as were made against Platinex and Solid Gold, and, as stated well above, thanks to Haida Nation, are now being regularly made by Indian bands against businesses large and small all across the country.

Despite rosy statements and legal assurances in the agreement to the contrary, expect non-Indians to experience  endless problems gaining access to and from their private properties over the 117,500 acres of Settlement Lands being deeded to the Algonquins, where, no doubt, the justification for the blockading and other acts of harassment and interference in question will be, as in the Frontenac Ventures  case,7 “adherence to Algonquin law,” which, the reader may recall, the Ontario Court of Appeal, in their decision in the case, declined to expressly say did not exist as a useable legal concept.

And again, expect the same head-in-the-sand passivity on the part of Ontario and the OPP – and the same two-tier justice on display – in any such situation.

Despite high-sounding words in the agreement to the effect that conservation is everyone’s highest priority, the agreement shockingly provides that the Algonquins will have the right to hunt and fish all year, for “Domestic Purposes,” throughout the entire Settlement Area, including in our provincial parks! – including in Algonquin Park! (We know how that all works out – illegal fish and game for sale on the side of the highway or in the reserve general store, right beside the illegal cigarettes, and the government too scared to do anything about it.)

Despairingly, it even gives the Algonquins the right to “Harvest” (the Orwellian verb the agreement uses to describe all form and manner of the killing of wildlife) moose in parts of Algonquin Park.

Inexplicably and irrationally, and comprising proof-positive that politics and political correctness, not conservation, are the highest priorities of Ontario, the agreement grants to the Algonquins the right to “jointly develop” with Ontario all future management plans for all the provincial parks in the Settlement Area, including Algonquin Park.

The Algonquins of Ontario are fine people. But the mere fact of their race gives them no more knowledge about managing the ecological integrity of any of our provincial parks than that possessed by any other average Ontarian. And like most of us, they are, in the absence of academic and technical training and degrees in such fields as chemistry, botany, zoology and forestry, totally unqualified to participate meaningfully in the management of our provincial parks, or any other such wilderness areas in the Settlement Area, including the Settlement Lands being deeded to them.

And this is the case despite the frequent references in the agreement to the bogus concept of “Algonquin Traditional Knowledge” (see Assimilation and Cultural Loss, above). It would be like a passenger in an airplane being invited up into the cockpit and being offered the controls to help the pilot fly the plane. A weirdly nice gesture perhaps, but not in anyone’s best interests.

The whole over-100 page agreement is like that: an out-of-touch, unreal, insanely complicated,  ruinously expensive and unaffordable,  duplicative, unnecessary exercise in antiquated, race-based thinking.

A haunting and sad-to-read part of the agreement is the Algonquin “Beneficiary” determination process established, involving an applicant Beneficiary, in order to qualify to receive benefits under the agreement, having to establish himself or herself to an “Enrolment Board” as being of “Direct Lineal Descent” to an “Algonquin Ancestor,” the latter defined in part as a person “born on or before July 15, 1897 and identified in an historic record or document dated on or before December 31st, 1911.”

In addition, the applicant will have to demonstrate that he or she was “part of an Algonquin Collective after July 15, 1897 and prior to June 15, 1991” and that he or she has a “present- day Cultural or Social Connection with an Algonquin Collective.”  With respect to this latter requirement, even if an Algonquin individual hasn’t lived in an “Algonquin Collective” for years, like the two thoroughly urbanized, illegally blockading, university teachers in the Frontenac Ventures Blockade case, who lived in Kingston, he or she can still satisfy this requirement if they can establish that they made “…regular visits to an Algonquin Collective during which social and cultural connections are maintainedfor example during vacations.”(!!)

Alternatively, if an applicant can’t establish the above (maybe he or she liked to vacation in Europe instead), as an alternative way of hitting the Beneficiary jackpot, he or she may become a Beneficiary pursuant to a process of “community acceptance” (a process yet to be determined, but one that will no doubt involve a large measure of brown-nosing, and yes, like it or not, foregoing London or Paris for a vacation or two back on the reserve).

This beneficiary determination process is haunting and sad-to-read because, when reading all the fine and exquisite details of this in-essence ancestor-dependent, racial parsing process, one can’t help but be reminded of the dark and evil mirror-opposite (in intent) of this type of thinking – the German race laws of the 1930’s – the Nuremberg Laws – where the definition of “Jews” was based on the religion of one’s grandparents- where the point of it all was not to determine beneficiaries of anything, but rather to determine appropriate “racial” candidates for the boxcar journey to the death camps.

As stated in the Introduction to this essay, that such a thought could even come to mind, and it does so naturally and logically here, the thing that causes that, in this case this purely race-based agreement, should be rejected by all right-thinking persons.

A most retrograde and illiberal agreement! A fundamentally unprincipled agreement-in-principle! An agreement that will impoverish and demoralize all the people of Ontario. An agreement that will constitute a huge, reckless and unaffordable revenue and sovereignty giveaway. An agreement that will only harmfully overindulge those few thousand Algonquin-Canadians affected (they will get their perpetual new benefits under this agreement while still keeping all their existing Indian Act rights and entitlements), and that will further retard, as a group, their integration into the Canadian mainstream.

To the extent that Algonquins are presently in a state of Indian Act-style dependency (this is not at all clear, their numbers being so small, and they, as a whole, being so inextricably integrated into urban-style south-eastern Ontario life),  this won’t help them get out of that at all. By further building up racial walls between them and the rest of Ontarians – by causing more civilizational partitioning – this agreement will only worsen that isolation and dependency.

And, as usual, only their elites, and the many, many non-Algonquin Indian Industry functionaries and technocrats that will be needed to be hired to carry out the Algonquins’ side of this fantastically complicated agreement, will benefit in any significant way.

The draft treaty should be rejected by our parliaments.

If and when that happens the litigation that started the treaty-making process in the first place will no doubt be resurrected by the Indians who started it, and the legal pleadings in the case will most certainly be amended to claim, based on the Tsilhqot’in decision, aboriginal title over the whole Settlement Area.

The litigation should be allowed to run its course, up to and including a trial. The Indian plaintiffs should be forced to prove their case, and all at their own expense. Ontario should fight the case hard and not pay any of their legal expenses along the way.

Instead of the whole process playing out in elitist secrecy like it has to date, Ontario should publicize its aggressively defensive position, and explain their sovereignty-guarding rationale behind it. For a change, proponents of race-based, benignly segregationist litigation projects like this, and like the Parliament Hill land claim referred to above, should be thrown on the moral defensive where they belong – should  be publicly exposed, challenged and upbraided.

For a change, proponents of a united, racism-free Canada, through their government and as individuals, should dig their heels in and fight for the right.

If the Gambler, or William Wuttunee, or any non-Indian equivalent of them, like Gandhi, Nelson Mandela, Martin Luther King or Amartya Sen, could be asked what they thought of it they’d probably reply:

Children of the God – all of you, red and white – it’s the 21st century. That treaty-business – which perhaps made some sense long, long ago – this ridiculous “aboriginal title” business – UNDRIP-all make no sense in our modern world. Stop building racial walls between us! Tear them down! Let’s all go forward together – and also with the yellow and brown-skinned peoples who have now come to our blessed lands- and all live in harmony and equality together. It is best.

  1. Preliminary Draft Comprehensive Land Claim Agreement-In Principle Among: The Algonquins of Ontario and Ontario and Canada.
  2. FromThe Conflict of European and Eastern Algonkian Cultures: 1504-1700, above
  3. Historical Atlas of Canada- Canada’s History Illustrated With Original Maps, (edited by Derek Hayes, Douglas & McIntyre Ltd. 2002
  4. George Irving Quimby, Indian Life in the Upper Great Lakes,University of Chicago Press, 1960
  5. Algonquin band’s lawsuit declares ownership of Parliament Hill amid stalled land claim talks, National Post, December 8, 2016
  6. At www.the guardian.com, April 7, 2016
  7. Frontenac Ventures, 2006 82 O.R. (3rd) 721.

By: Peter Best