Transcript Principles for Drafting an Anishinabek Nation Law on

“Treaty Rights and How they Apply to
Lake Nipissing”
Lake Nipissing Summit,
Canadore College,
April 3 & 4 2012
Fred Bellefeuille Barrister & Solicitor
Overview of Presentation
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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, or
3) 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.