Reviewed by Greg Marquis, Department of History and Politics, University of New Brunswick Saint John. Email: gmarquis [at] unbsj.ca.
In 1994 the Supreme Court of Canada, in R. v. HOWARD, decided that seven First Nations had knowingly surrendered their traditional right to fish for food when they had agreed to the Williams Treaties several decades earlier. The major result of the Supreme Court ruling was that members of the Hiawatha First Nation, and six other First Nations covered by the 1923 treaties, lost the right to hunt and fish outside of reserve lands.
Peggy J. Blair, a lawyer specializing in aboriginal law, has produced an important study of the historical context surrounding both the treaties and what she sees as a misguided response by the Canadian courts. The monograph is part of the University of British Columbia’s growing Law and Society series, edited by W. Wesley Pue. It is highly recommended not only for students of Canadian and First Nations history, but also anyone involved in litigation and advocacy on First Nations issues. Blair argues that the courts’ reasoning was based on a tradition of “assimilationist pressures and dominant cultural biases” (p.ix) and that there is little evidence to suggest that the bands involved had given up their traditional rights to fish and hunt outside of reserve territory. This interpretation, given the force of law as of 1994, makes the Williams Treaties First Nations’ experience unique in Canada.
The Williams Treaties of 1923 covered a 10,000 square mile section of south-central Ontario (equivalent in size to Massachusetts) and included territory containing the Ontario communities of North Bay, Barrie, Gravenhurst, Orillia, Parry Sound, Petawawa Markham, Pickering and Coburg. The southern limits of the treaty area were the north shore of Lake Ontario between Brampton and Trenton; the northern limits were the Ottawa and French rivers. This was the last major treaty negotiation between the federal government and Indian nations in the post-Confederation period. At present this area contains a wide variety of economic activity and land uses, ranging from central cities, manufacturing and suburbs to farms, ‘cottage country, ’Algonquin Provincial Park and Lake Simcoe.
The act that triggered the Supreme Court case was the prosecution of a member of the Mississauga First Nation at Rice Lake for catching pickerel on the Otanabee River outside of fishing season. An appeal to the Ontario Court of Appeal confirmed the Crown’s argument that the Rice Lake band in 1923 had surrendered their right to fish outside of reserve lands for a monetary payment. The dispute centred on two opposing views of native land use; that of First Nations and of governments and [*995] many courts As the author details, after the mid 19th century the Ontario government moved away from a focus on protecting the traditional aboriginal lifestyle to limiting First Nations hunting, trapping and fishing in order to expedite white settlement. Over the decades, the provincial authorities, who regulate hunting and fishing, tried with mixed success to limit aboriginal harvesting outside of the boundaries of reserves (many of which themselves are a fraction of their original size, owing to federal government decisions).
Blair provides considerable detail on the history of the Mississauga (who were part of the Anishnabe) and Chippewa, particularly the importance of fishing to their subsistence and culture. Of central importance were ‘fishing islands’ located on rivers and lakes. The author marshals evidence from land surrender agreements in other parts of the province to suggest that protection of traditional fishing areas was an expected part of any transfer. Yet, the new policy of ‘legalized encroachment’ starting in the 1850s involved attempts to limit native access to resources in the interest of ‘civilization. A discourse of ‘laziness’ and ‘waste’ was used by supporters of sport and commercial fishing to justify the criminalization of Indian harvesting methods, such as netting and spearing. James Cockburn, the acting attorney general of Canada West (Ontario) in the 1860s, offered a legal opinion that would prove influential: the Royal Proclamation of 1763 applied only to land, not waterways, and the Indians of Ontario, treaties notwithstanding, possessed no special fishing rights.
In Chapter 4, which covers the first thirty years after Confederation, Blair discusses the federal-provincial jurisdictional disputes surrounding native fishing in Ontario. Although the policy was unconstitutional, the federal government permitted Ontario to control First Nations’ fishing and hunting. In the late 1890s and early 1900s, provincial fish and game regulations grew stricter, although aboriginal people continued to defy the law and oral tradition held that hunting and fishing rights had never been surrendered. Legal advocacy, in Ontario and beyond, was hampered by changes to the federal Indian Act in 1910 which made it difficult to engage lawyers.
In 1921 the federal government approached the provincial authorities on the matter of unextinguished aboriginal title involving several southern Ontario Mississauga and Chippewa bands remaining outside of the treaty process. The treaty commissioners explained to the residents of reserves at Georgina Island, Rama, Christian Island, Rice Lake, Scugog, Mud Lake and Alnwick that “the territory in question was formerly the Hunting Ground of this tribe” (p.130). Blair speculates that the hasty manner by which the 1923 treaties were signed may have been related to efforts on the part of Canadian Indians that year to take their case to the League of Nations in Geneva and to British officials in London. No transcripts of the treaty talks exist; thus the issue of whether the negotiations actually proposed taking away fishing and hunting rights beyond reserve lands is unresolved. The commission was authorized to spend roughly $25 per capita to extinguish aboriginal title.
Years later, the government of Ontario used the so-called ‘basket clause’ of the [*996] treaties, which appeared to give the province wide jurisdiction over “all other lands” (p.155) with which the bands had been involved, to advance the claim that hunting and fishing, starting in 1923, were restricted to reserves. Yet as the book discusses, Indians in the treaty areas not only continued to harvest game and fish but also claimed a treaty right to do so. This attitude continued among northern Ontario First Nations when they adhered to Treaty Number 9 in 1929. During the 1930s the Ontario courts backed provincial policy prohibiting aboriginal fishing in waters adjacent to reserves. As Blair points out, six of the seven reserves in question have no bodies of water in their territory, which meant that fishing could only take place off reserve, in the Otonabee River.
The province continued to charge Williams Treaties band members for hunting and fishing illegally, despite the latter’s protest that they were protected by treaty rights. By the 1970s and 1980s, however, courts were becoming more sophisticated and sympathetic in their treatment of native issues. A provincial court of appeal case in 1981 involving the Mud lake Chippewa ruled that oral promises by the Crown could be considered party of a treaty. A year later, the ‘existing’ aboriginal and treaty rights of Canada’s aboriginal peoples were recognized in the new Constitution Act. Yet, advances in aboriginal rights were accompanied by setbacks.
Despite the more liberal climate of the 1980s, the Ontario Ministry of Natural Resources tested the Williams Treaties by charging George Henry Howard of Rice Lake, Peterborough County, in 1984. The expert witness for the defence testified that the Mississauga and Chippewa of 1923 would have never willingly ceded their traditional rights. A key witness for the Crown was a Hiawatha band member who had been born in 1913 and who personally remembered seven of the treaty signatories. All of them were literate, three or four were businessmen, and one was a civil servant. This evidence suggested that band leaders in the 1920s would have been fully aware of what was at stake in the negotiations. The judge ruled against the defendant – but not on the basis of the treaty. Instead, he held that federal fisheries regulations had extinguished the right to fish beyond reserve boundaries. After two unsuccessful appeals, Howard took his case to the Supreme Court of Canada. Following their defeat there, the bands were forced to enter into narrowly-defined harvesting agreements with the Ontario government, which would have permitted some fishing in waters adjacent to reserves. The agreements were cancelled in 1995 by the newly-elected provincial government of Mike Harris (Harris was premier during the protest at Ipperwash Provincial Park which resulted in the death of Native protestor Dudley George).
In recent years, Canada’s First Nations organizations, including those of off-reserve and non-Status Indians, have attempted to assert claims to traditional hunting territories. In recent decades, the courts have sided with aboriginal defendants who claim a right to hunt off reserve lands (Manore 2000: 209). Land claims settlements have also recognized traditional rights to hunt and fish for food both within traditional territories, and the territories of neighbouring First Nations, where permission is granted. The inconsistent nature of the Canadian [*997] courts towards issues of vital interest to aboriginals is the focus of Blair’s final chapter, which will be of most interest to legal scholars. She highlights the often contradictory principles enunciated through Supreme Court rulings, such as recognition of “the cultural significance of a land base to contemporary First Nations (p.201), on one hand, and failure to recognize this lack of appreciation by judges in past decisions on the other. Under the common law approach, Blair suggests, the ambiguities and ‘grey areas’ of the historical record are often ignored or misunderstood, or made to serve the interests of the Crown. Key evidence here is the failure of the 1923 treaty commissioners to appreciate the reliance of aboriginals on hunting, trapping and fishing. The book concludes with an interesting discussion of how American ‘Indian law’ differs from Canada’s on the issue of treaty rights, using the example of the Mille Lacs band of Chippewa in Minnesota. In the United States, aboriginal rights are not viewed as granted through treaties from the sovereign power. The Supreme Court has ruled that a treaty is a grant of rights from Native Americans. Thus any rights not enumerated in a treaty remain unextinguished. In contrast to the HOWARD case where the Canadian government chose not to intervene, the Mille Lacs case that proceeded to the United States Supreme Court in the 1990s involved intervention by the American federal government in defence of Chippewa treaty rights. Blair criticizes not only a particularly “aggressive” provincial government, but also a long-standing policy of Canada’s federal government in maintaining ‘selective memories’ of past negotiations and treaties, and deliberately attempting to escape its responsibilities to aboriginal people. She also faults the Supreme Court’s unwillingness or inability to appreciate fully the culture and history of Canada’s First Nations.
Manore, Jean L. 2000. “Indian Reserves v. Indian Lands: Reserves, Crown Lands and Natural Resource Use in Northwestern Ontario.” In Edgar-André Montigny and Anne Lorene Chambers (eds). ONTARIO SINCE CONFEDERATION: A READER. Toronto: University of Toronto Press, 195-213.
R v. HOWARD  2 S.C.R. 2999.
© Copyright 2008 by the author, Greg Marquis.
Lament For a First Nation: The Williams Treaties of Southern Ontario (Law and Society)