Mushkegowuk launches lawsuit on treaty promises

Reprinted from Wawatay News
Wednesday August 7, 2013
Lenny Carpenter – Wawatay News

During a conference on Treaty 9 held in Kashechewan First Nation in 1987, respected Elder James Wesley of Attawapiskat recalled words of a man who was present when treaty commissioners met with First Nations in 1905.

“Henry Reuben says he was sitting there and saw them writing the important things,” Wesley is quoted as saying at the time. “There was someone there that did the writing. So this is what is lost. Maybe one day it will show up.”

Eight years later, the diaries of the three commissioners were discovered and, according to Mushkegowuk Council, verify what Elders have been saying all along: the commissioners made oral promises that are not reflected in the treaty.

The diaries serve as the key piece of evidence in a lawsuit being launched by Mushkegowuk against the Ontario and Canadian government.

A statement of claim sent to the Ontario Superior Court on July 4 by Mushkegowuk Council asserts that the governments of Ontario and Canada have “no power or right under Treaty 9 to unilaterally restrict or extinguish” the harvesting rights of the Mushkegowuk people by authorizing resource companies to develop on their traditional territory.

The claim states that the “oral assurances of continued and undiminished” trapping, hunting and fish rights made by the treaty commissioners were “critical” to First Nations deciding to agree to sign Treaty 9.

The diary of Ontario treaty commissioner Daniel G. MacMartin made several references that oral promises were made in 1905, in which the First Nations who signed “were allowed of as of yore to hunt and fish as they pleased.”

According to Mushkegowuk Grand Chief Stan Louttit, this means the First Nations who signed never agreed to “give up the land.”

“We’re excited about this,” he said at the James Bay Treaty – Treaty No. 9 Conference in Moose Factory on July 30. “This evidence is coming about, in terms of how the treaty was really presented, and how the treaty was really understood by our forefathers.”

When the Dominion of Canada and Ontario began drafting Treaty 9 in 1903, the intent was to secure the “extinguishment of the Indian title of lands” and transfer it to the Crown, said Louttit.

And while it is written in the Treaty that the First Nations have the “right to pursue their usual vocations of hunting, trapping and fishing throughout the tract (of land) surrendered…” the same clause seems to contradict itself, said Louttit.

The clause concludes: “excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.”

From the federal and provincial governments’ point of view, Louttit said, the clause gives them the legal authority to allow resource development on First Nations’ traditional territory.

However, Louttit said, the entire Treaty – let alone the clause – was not properly explained to the First Nations when it was signed.

The claim cites Section 35 of the Constitution Act (1982), where “oral treaty promises are legally binding terms of the Treaty.”

If the court rules in Mushkegowuk’s favour, Grand Chief Stan Louttit said it could not only force the government and resource companies to “consult” with First Nations, but to have their consent. This would allow communities to gain leverage in any negotiations and benefit substantially from any development on their territory.

“And not only for Mushkegowuk, but all Treaty 9 communities,” he said.

The plaintiff of the lawsuit is Peter Archibald of Taykwa Tagamou First Nation. Two mining companies have staked claims that overlap with Archibald’s traditional trapline, which he inherited from his father.

Taykwa Tagamou, formerly known as New Post, signed Treaty 9 in 1905 and MacMartin’s diary references oral promises made at that time.

The two mining companies – Northern Shield Resources, and Lake Shore Gold – are also defendants in the suit.

Louttit said Archibald’s example was chosen because it was a “clearcut” example of mining companies infringing on the traditional territory of a Treaty 9 community.

Since Mushkegowuk issued the statement of claim on July 4, the government has 60 days to file a statement of defense. From there, Mushkegowuk can file the formal documents to begin the lawsuit.

Cory Wanless, an attorney with Klippensteins Barristers and Solicitors, said once the process begins, it could take “five years or more” until a verdict is reached.

Exposing the aboriginal Industry

Repost from TheStarCanada spends billions on its native people, yet many aboriginals remain plagued by poverty and other social ills. Meanwhile, a handful of lawyers, band leaders and chiefs prosper.

A boy walks down a gravel road in Northern Ontario’s Kashechewan reserve, where residents were evacuated in 2005 due to the presence of E. Coli in the water supply. (Oct. 27, 2005)

CALGARY–One of the most pressing problems in Canada today is the terrible social conditions that exist in many aboriginal communities. It is well known that the rates of poverty, substance abuse and violence are much higher for the native population, and that health and educational levels remain far below the national average. Even more disturbing is the fact that the alarming statistics persist despite billions of dollars being spent on programs and services to alleviate these Third World conditions. Why has so much government funding had so little impact?

Fifteen years ago we decided to try to provide some answers to these perplexing questions. The result is Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation, a book that combines our own experiences with 10 years of additional research to investigate all aspects of aboriginal policy. It shows that the reason for the massive policy failure is that current initiatives are being formulated and implemented by a self-serving “industry” that works behind the scenes in aboriginal organizations.

Legal firms masterminding the residential schools settlement and anthropologists directing “traditional knowledge” studies, for example, have received hundreds of millions of dollars over the years. Some in this group of non-aboriginal lawyers and consultants have little incentive to solve aboriginal problems because they thrive on the continuation of aboriginal dependency and social dysfunction. The reality of the aboriginal industry is that grievances result in the dispersal of government funds, and so its members benefit from perpetuating, rather than alleviating, aboriginal deprivation.

The aboriginal industry maintains this state of affairs, in part, by advocating cultural traditionalism in the native population. No rational person believes that modern problems can be solved by reverting to the ways of our ancestors, as is assumed in aboriginal policy development. This does not mean that we are prevented from appreciating historical accomplishments, only that we are not obligated to accept all past beliefs and practices under the guise of “preserving our culture.” Valuing the plays of Shakespeare, for example, does not mean that we have to embrace the Divine Right of Kings, blood-letting or burning witches at the stake.

Aboriginal cultural features, however, are perceived as inexorable. It is assumed, for example, that since aboriginal peoples were once hunters and gatherers, they should continue to hunt and trap and gather berries so as to preserve their “spiritual relationship” to the land. Aboriginal languages that are spoken by only a few hundred people should be taught in the elementary grades, we are told, so that aboriginal “worldviews” can continue to find expression. This is not to deny that aboriginal people, like all Canadians, should have the right to pursue the beliefs and cultural practices that give them satisfaction; it is only to stress that this is a choice for individuals to make. The idea that aboriginal peoples are natural hunters, or that they have a predetermined spirituality, is actually a form of racial stereotyping that constrains future possibilities. Aboriginal people, like all other Canadians, can think for themselves.

Unproductive economic practices, tribal forms of political organization, superstitious “healing” initiatives, pre-literate languages and unscientific forms of “knowledge” are also encouraged because of the condescending assumption that this will raise aboriginal self-esteem and give native people the confidence to participate in modern society. But such initiatives will not provide aboriginal people with the skills, knowledge and discipline needed to participate in a wide range of socially necessary occupations. “Native studies” programs in Canadian universities, for example, teach that the myth that aboriginal peoples were placed in North America/Turtle Island by “the Creator” is just as valid as scientific theories about human migrations out of Africa. But if aboriginal people are not encouraged to approach this myth critically, as occurs with respect to, say, Christian myths such as Genesis, how will aboriginal people become contributors to the fields of archaeology, palæontology and biology? The blanket promotion of aboriginal “worldviews” and “ways of life,” therefore, can rationalize aboriginal isolation.

Recognizing the need for aboriginal people to participate in Canadian society, instead of being warehoused on unviable reserves, does not constitute a proposal for “assimilation.” Rather, it is a plea for integration whereby many aspects of aboriginal culture – humour, artistic sensibilities, noncoercive forms of child rearing and so on – will become part of the wider culture. At the same time, however, integration recognizes that certain aspects of aboriginal culture are inhibiting aboriginal survival today, and these characteristics, as well as unviable aboriginal reserves and remote communities, should be allowed to gradually “wither away” according to the decline in their expedience.

The aboriginal industry, however, favours segregation over integration. In order to prevent the recognition of this socially destructive policy direction, the aboriginal industry has developed some very effective tactics over the last 40 years. It viciously attacks the credibility of opponents, arguing that criticism of aboriginal policy is to denigrate aboriginal people themselves. “Racist,” “colonialist,” and “right-wing” are the most common insults hurled at those who dare to question the viability and effectiveness of land claims and self-government initiatives. Recently, organizations like the Assembly of Manitoba Chiefs have even argued that critics like us are guilty of “inciting hate,” and some members of the Canadian Political Science Association have asked if we should be charged under the Criminal Code. As a result of these tactics, most people who are uncomfortable with the obviously unworkable and irrational character of aboriginal policy are discouraged from raising their concerns publicly.

Because the negotiation of land claims and self-government agreements occurs behind closed doors or in remote areas of Canada, most people are unaware of the machinations driving current aboriginal policy initiatives. They assume that because a number of aboriginal leaders are supportive of the existing policy direction, this must be what most aboriginal people “want.” These leaders have been corrupted by the financial rewards offered by the aboriginal industry, and therefore are completely unrepresentative of the interests of “their people.” In fact, these leaders remain in positions of power because of native segregation and marginalization.

Many native leaders are anxious to build an “economic base” in their unviable communities because the aboriginal industry ensures that the leadership will profit from these initiatives. Native leaders obtain a range of benefits, from “honoraria” to sinecures as members on the boards of the organizations that are set up to administer the transfers of funds and provision of services. The aboriginal industry also needs the leadership to legitimate its proposals and ensure that community members are brought on side. The latter acquiesce under the misguided assumption that they will benefit.

The fundamental needs of indigenous people are common to everyone in the modern period: education, health care and housing. Provision of these services should be considered an obligation of the state and delivered with the consideration of the specific needs of aboriginal people. Although this proposal for reasserting government control over the delivery of programs and services to the native population will be interpreted by some as “colonialism,” no advocate for social justice is opposed to publicly funded education or health care for other Canadian citizens. In fact, the opposition is to offloading and contracting out – a circumstance that comes very close to what is actually occurring in aboriginal communities, with the resulting poor quality of care and low educational standards.

It is necessary for the current forms of cultural indoctrination that pass for education in native communities to be replaced by programs designed to address the failure of the system to provide education at the level enjoyed by all other Canadians. This has occurred, for instance, at the Grandview/Uuquinak’uuh Elementary School in East Vancouver, where dramatic improvements in educational achievement have been made, not by instituting “culturally sensitive” programs, but through a focus on literacy, academics and objective assessments. Health care should also be provided at the high scientific standard received by the non-native population. While housing in Canada is generated in the private sector according to profit motivation, native community housing is government funded. However, the delivery is through housing boards which have, as their primary function, native board control. This means that traditional customs determine distribution of housing and leadership administers building contracts. The result is that relatives and favoured friends are allocated houses before those in direct need and building contracts are awarded to native shadow companies that profit by sub-contracting to outside construction firms. These firms are then held up as examples of “successful” aboriginal businesses.

Exposing these deplorable circumstances in Disrobing the Aboriginal Industry has resulted in a polarized reaction. Some have heralded it as a courageous and truthful book, while others have either misrepresented its contents or attacked us personally. Although responding to the personal attacks has been an emotional strain and the “hate crime” allegation is disconcerting, we have come to realize that this is an inevitable process that we have to go through in order for real debate to take place about aboriginal policy in this country. Intimidation and smear tactics may have worked in the past, but they are beginning to wear thin. Now that it has been exposed that the Emperor has no clothes, his nudity cannot be denied indefinitely.


Reposted from

Toronto, ON (March 20, 2013)
On March 18, 2013, the Ontario Court of Appeal released its unanimous decision reversing the positive and powerful trial judgment of Justice Mary Sanderson in the Keewatin case from Treaty 3 territory. This disappointing result came less than two months after lengthy oral argument in late January.

In the clearest possible terms, the harvesting clause of Treaty 3 makes the taking up of traditional lands for mining, lumbering and other related purposes subject to the consent of the “Government of the Dominion of Canada.” The trial Judge ruled that the Treaty meant what it said. At least in the Keewatin part of Treaty 3, the Province of Ontario did not have the unilateral right to authorize resource development that would have a negative impact on Treaty harvesting rights. Federal consent was also required. Even though this trial result was very positive for First Nations, it is shocking to note that the federal government supported the appeal brought by the Ontario Ministry of Natural Resources. The federal litigation stance is inconsistent with the honour of the Crown.

While the trial judge was painstaking in her review of history in order to understand the Treaty, the Court of Appeal seemed to be on automatic pilot in its rush to put Ontario and Canadian business interests back in control. According to the high Court, the Treaty did not mean what it said. The St. Catherine’s Milling case, decided by the British Privy Council over one hundred years ago, determined once and for all that the Province controls lands and resources after a Treaty is signed. The Province assumed control of the Keewatin territory with the provincial boundary extension of 1912, regardless of the terms of the Treaty. Provincial management remains subject to the constitutional duty to consult and accommodate First Nation rights and interests. The Court of Appeal simply refused to think outside the box of the St. Catherine’s Milling case.

Ontario Regional Chief Stan Beardy remarked as follows: “On behalf of First Nations in Ontario, I wish to express my disappointment with the Keewatin decision of the Ontario Court of Appeal. This was a unique opportunity for the Canadian judicial system to support the true spirit and intent of important Treaty rights. Instead, the Court fell back on dubious and one-sided jurisprudence from over 100 years ago. It seems that nothing has changed in Canada. The Canadian governments and their courts are wrong if they think this kind of dismissal will put First Nations in their place and create certainty in the resource development sector. Nothing could be further from the truth. As long as the spirit and intent of the Treaties are disrespected, the only result will be uncertainty and unrest.”

The Regional Chief went on to say: “First Nations have a sacred Treaty relationship with the Crown. It is our obligation to defend the spirit and intent of the Treaties. Canadian courts have an obligation to consider both sides of the Treaty relationship when issues of interpretation and implementation arise. If reasonable reconciliation is not possible, ongoing and costly conflict at the grassroots level is inevitable.”

The First Nation parties in the Keewatin case have the right to seek leave to appeal from the Supreme Court of Canada. The Regional Chief and the Chiefs of Ontario will continue to support the First Nations in their decision-making process.

The Chiefs of Ontario is a political forum, and a secretariat for collective decision making, action, and advocacy for the 133 First Nation communities located within the boundaries of the province of Ontario, Canada.