“Treaty Rights and How they Apply to Lake Nipissing”

Lake Nipissing Summit, Canadore College,

April 3 & 4 2012Fred Bellefeuille Barrister &

Solicitor

Overview of Presentation• Why are there Indian Treaties in the first

place?• What does the Robinson Huron Treaty

say?• What was said at signing of the Treaty?• Why does the treaty right to fish

supersede Ontario fishing laws?• What does this all mean for Lake

Nipissing?

Why are there Indian Treaties?• British law recognized that acquiring land

required either: 1) terra nullius (New Land, uninhabited);2) Conquer Nations, or3) Treaty;

1) Land was not terra nullius, there were and still exists Indian Nations and tribes, systems of government, justice, etc;

Why are there Indian Treaties?2) Aboriginal Nations were not conquered; •1763 – Pontiac took 9 of 12 British forts, British did not want to risk all out war;•British response was the Royal Proclamation 1763 and promised to negotiate and enter into treaties to keep peace and acquire land.

Royal Proclamation 1763

• ….. and whereas it is just and reasonable and essential to the interest and the security of our colonies, that the several nations and tribes of Indians … should not be molested or disturbed in the possession of such parts of our domains as, not having been ceded to or purchased by us, are reserved to them as their hunting grounds…

3) Treaty

Robinson Huron Treaty of 1850

What does the RH Treaty say?Parties to Treaty:•Province of Canada;•Ojibwa Indians of Lake Huron;• “NINTH --Dokis and his Band, three miles square at Wanabeyakokaun, near Lake Nipissing and the island near the Fall of Okickandawt”.•“TENTH --Shabokishick and his Band, from their present planting grounds on Lake Nipissing to the Hudson Bay Company’s post, six miles in depth”.

What does the RH Treaty say?• “Chiefs and Principal men, on behalf of their

respective Tribes or Bands, do hereby fully, freely, and voluntarily … cede, … unto Her Majesty, … all their right, title, and interest to, and in the whole of, the territory described, save and except the reservations set forth in the schedule hereunto annexed”

• Surrendered over 6.3 million hectares of land;

What does the RH Treaty say?• Lands were reserved by the First Nations;• 21 reserves in total;• Among other rights, Fishing rights: “Further to allow the said Chiefs and their

tribes the full and free privilege to fish in the waters thereof (territory ceded), as they have heretofore been in the habit of doing.”

What was said at the time of Treaty?• W.B. Robinson in promoting the treaty to Indians

stated settlement would not be prejudicial “as they would afford a market for what ever they have to sell”;

• Anderson and Vidal when discussing the treaty with the Indians bought fish from the Ojibwe;

• J.W. Keating prospecting for the Crown: “they might from their sale and of their fish … derive a certain and comfortable subsistence”;

• All purchased “country food” from the Indians.

Why does the treaty right to fish supersede Ontario fishing laws?

Section 35 Constitution Act, 1982•(1)“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”•(2) Aboriginal peoples of Canada includes the Indian, Inuit and Metis people of Canada”

Why does the treaty right to fish supersede Ontario fishing laws?Laws In Canada•Constitution of Canada – “Supreme Law”;•Federal and Provincial Laws;•Regulations under the law;•Government Policy.

Why does the treaty right to fish supersede Ontario fishing laws?• Treaties including the RH Treaty are

paramount to Federal and Provincial law that interfere with them;

• Therefore, fishing rights within the RH Treaty are paramount to Federal and Provincial law that interfere with them;

• Limitations are conservation and safety.

What does this all mean for Lake Nipissing?• This reality has to be taken into account in

the overall management, planning and usage of lake Nipissing;

• Courts have been big on “reconciliation” between First Nation and other Canadians;

• Reconciliation is a important theme to the future of First Nations, other Canadians and our resource use.