No Place for Fairness: Indigenous Land Rights and Policy in the Bear Island Case and Beyond 9780773576599

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No Place for Fairness

McGill-Queen’s Native and Northern Series (In memory of Bruce G. Trigger) sarah carter and arthur j. ray, editors 1 When the Whalers Were Up North Inuit Memories from the Eastern Arctic Dorothy Harley Eber 2 The Challenge of Arctic Shipping Science, Environmental Assessment, and Human Values Edited by David L. VanderZwaag and Cynthia Lamson 3 Lost Harvests Prairie Indian Reserve Farmers and Government Policy Sarah Carter 4 Native Liberty, Crown Sovereignty The Existing Aboriginal Right of Self-Government in Canada Bruce Clark 5 Unravelling the Franklin Mystery Inuit Testimony David C. Woodman 6 Otter Skins, Boston Ships, and China Goods The Maritime Fur Trade of the Northwest Coast, 1785–1841 James R. Gibson 7 From Wooden Ploughs to Welfare The Story of the Western Reserves Helen Buckley 8 In Business for Ourselves Northern Entrepreneurs Wanda A. Wuttunee 9 For an Amerindian Autohistory An Essay on the Foundations of a Social Ethic Georges E. Sioui 10 Strangers Among Us David Woodman 11 When the North Was Red Aboriginal Education in Soviet Siberia Dennis A. Bartels and Alice L. Bartels

12 From Talking Chiefs to a Native Corporate Elite The Birth of Class and Nationalism among Canadian Inuit Marybelle Mitchell 13 Cold Comfort My Love Affair with the Arctic Graham W. Rowley 14 The True Spirit and Original Intent of Treaty 7 Treaty 7 Elders and Tribal Council with Walter Hildebrandt, Dorothy First Rider, and Sarah Carter 15 This Distant and Unsurveyed Country A Woman’s Winter at Baffin Island, 1857–1858 W. Gillies Ross 16 Images of Justice Dorothy Harley Eber 17 Capturing Women The Manipulation of Cultural Imagery in Canada’s Prairie West Sarah A. Carter 18 Social and Environmental Impacts of the James Bay Hydroelectric Project Edited by James F. Hornig 19 Saqiyuq Stories from the Lives of Three Inuit Women Nancy Wachowich in collaboration with Apphia Agalakti Awa, Rhoda Kaukjak Katsak, and Sandra Pikujak Katsak 20 Justice in Paradise Bruce Clark 21 Aboriginal Rights and Self-Government The Canadian and Mexican Experience in North American Perspective Edited by Curtis Cook and Juan D. Lindau

22 Harvest of Souls The Jesuit Missions and Colonialism in North America, 1632–1650 Carole Blackburn 23 Bounty and Benevolence A History of Saskatchewan Treaties Arthur J. Ray, Jim Miller, and Frank Tough 24 The People of Denendeh Ethnohistory of the Indians of Canada’s Northwest Territories June Helm 25 The Marshall Decision and Native Rights Ken Coates 26 The Flying Tiger Women Shamans and Storytellers of the Amur Kira Van Deusen 27 Alone in Silence European Women in the Canadian North before 1940 Barbara E. Kelcey 28 The Arctic Voyages of Martin Frobisher An Elizabethan Adventure Robert McGhee 29 Northern Experience and the Myths of Canadian Culture Renée Hulan 30 The White Man’s Gonna Getcha The Colonial Challenge to the Crees in Quebec Toby Morantz 31 The Heavens Are Changing Nineteenth-Century Protestant Missions and Tsimshian Christianity Susan Neylan 32 Arctic Migrants/Arctic Villagers The Transformation of Inuit Settlement in the Central Arctic David Damas

33 Arctic Justice On Trial for Murder – Pond Inlet, 1923 Shelagh D. Grant 34 Eighteenth-Century Naturalists of Hudson Bay Stuart Houston, Tim Ball, and Mary Houston 35 The American Empire and the Fourth World Anthony J. Hall 36 Uqalurait An Oral History of Nunavut Compiled and edited by John Bennett and Susan Rowley 37 Living Rhythms Lessons in Aboriginal Economic Resilience and Vision Wanda Wuttunee 38 The Making of an Explorer George Hubert Wilkins and the Canadian Arctic Expedition, 1913–1916 Stuart E. Jenness 39 Chee Chee A Study of Aboriginal Suicide Alvin Evans 40 Strange Things Done Murder in Yukon History Ken S. Coates and William R. Morrison 41 Healing through Art Ritualized Space and Cree Identity Nadia Ferrara 42 Coyote and Raven Go Canoeing Coming Home to the Village Peter Cole 43 Something New in the Air The Story of First Peoples Television Broadcasting in Canada Lorna Roth

44 Listening to Old Woman Speak Natives and Alternatives in Canadian Literature Laura Smyth Groening 45 Robert and Francis Flaherty A Documentary Life, 1883–1922 Robert J. Christopher 46 Talking in Context Language and Identity in Kwakwaka’wakw Society Anne Marie Goodfellow 47 Tecumseh’s Bones Guy St-Denis 48 Constructing Colonial Discourse Captain Cook at Nootka Sound Noel Elizabeth Currie 49 The Hollow Tree Fighting Addiction with Traditional Healing Herb Nabigon 50 The Return of Caribou to Ungava A.T. Bergerud, Stuart Luttich, and Lodewijk Camps 51 Firekeepers of the Twenty-First Century First Nations Women Chiefs Cora J. Voyageur

52 Isuma Inuit Video Art Michael Robert Evans 53 Outside Looking In Viewing First Nations Peoples in Canadian Dramatic Television Series Mary Jane Miller 54 Kiviuq An Inuit Hero and His Siberian Cousins Kira Van Deusen 55 Native Peoples and Water Rights Irrigation, Dams, and the Law in Western Canada Kenichi Matsui 56 The Rediscovered Self Indigenous Identity and Cultural Justice Ronald Niezen 57 As affecting the fate of my absent husband Selected Letters of Lady Franklin Concerning the Search for the Lost Franklin Expedition, 1848–1860 Edited by Erika Behrisch Elce 58 No Place for Fairness Indigenous Land Rights and Policy in the Bear Island Case and Beyond David T. McNab

No Place for Fairness Indigenous Land Rights and Policy in the Bear Island Case and Beyond

David T. McNab

McG I LL -Q U E E N’S

U N I VE R S ITY

Montreal & Kingston

•

London

•

PR E SS

Ithaca

© McGill-Queen’s University Press 2009 isbn 978-0-7735-3587-9 (cloth) isbn 978-0-7735-3588-6 (paper) Legal deposit fourth quarter 2009 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program (bpidp) for our publishing activities. Parts of chapter 2 were previously published in McNab, Circles of Time, 45–75; parts of chapter 5 appeared in McNab, Blockades and Resistance, 31–53, both published by Wilfrid Laurier Press. They are reprinted here by permission.

Library and Archives Canada Cataloguing in Publication McNab, David, 1947– No place for fairness : indigenous land rights and policy in the Bear Island case and beyond / David T. McNab. (McGill-Queen’s Native and northern series; 58) Includes bibliographical references and index. isbn 978-0-7735-3587-9 (bnd) isbn 978-0-7735-3588-6 (pbk) 1. Native peoples–Ontario–Claims. 2. Native peoples–Land tenure--Ontario. 3. Native peoples–Ontario–Government relations. 4. Indian land transfers–Ontario. I. Title. II. Series: McGill-Queen's native and northern series; 58 e92.m36 2009

346.71304'3208997

c2009-902325-3

This book was designed and typeset by studio oneonone in Sabon 10.2/13.5

Contents

Preface / ix Introduction / 3 1 Meeting Places and Negotiations, 1763–1850s / 10 2 First Nations and British Imperial “Civilization” Policy

in the Early Nineteenth Century / 20 3 Stories of Teme-Augama Anishnabai Land Rights and the

Robinson Huron Treaty of 1850 and Its Aftermath / 39 4 “Don’t fix it”: Reflections on Ontario Aboriginal Policy

and Processes, 1976–1984 / 55 5 The Bear Island Trial, the Steele Judgement, and the

First Settlement Offer, 1982–1986 / 75 6 Bear Island and Land Rights under a Liberal Majority,

1986–1988 / 90 7 The Temagami Blockade of 1988 / 111

8 The 1989 Blockades and the 1990 Treaty of Co-Existence / 134 9 Oka and the Blockades in Northern Ontario, Summer 1990 / 152 10 Reflections since the 1990s / 168

Retrospect: Towards a Place for Fairness / 188 Acronyms / 193 Notes / 195 Bibliography / 221 Index / 233

Preface

This work is comprised of stories and storytelling primarily about the indigenous places of Bear Island and Toronto.1 It is also includes personal reflections on the Teme-Augama Anishnabai (taa, also known in their language as the People of the Deep Water) land rights issues in the context of the recording of Ontario’s aboriginal “problem-solving” processes in the late twentieth century on Turtle Island. These stories come from my reflections on events between 1979 and 1991, as well as from my private appointment books, diaries, datebooks, and journals. The specific idea for these stories also owes its beginning to my earlier book, Circles of Time.2 The aboriginal people known as the People of the Plains made ledger drawings when they were imprisoned in the 1870s at Fort Marion in St Augustine, Florida. I saw these ledger drawings when I visited this place in October 1994. As an act of imagination, my dreaming about them became clearer as I began to write. The Plains Indians’ drawings went on tour as a travelling exhibition in 1996–97. Their last stop was in Toronto from 14 November 1997 to 4 January 1998. I saw the drawings when the show opened, on 14 November.3 It was after that time, in late 1997, that I began to look at my own “ledger books,” which I had drawn from 1979 to 1991. I began to draw again and began to see that these socalled Indian issues were essentially issues created by “non-aboriginal people” about indigenous stories, which are independent histories and belong to Indigenous people. There are people who contributed to the making of this work whether they realized it or not. John S. Long thoughtfully contributed the title as well as many excellent ideas since we first met at Moose Factory Island more than

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a quarter century ago. I would like to thank my former History professors who were always so generous in sharing their ideas, including Welf Heick and the late Charles Paape at Waterloo Lutheran University and Goldwin French and the late Tom Willey at McMaster University. Paape, then the head of the History Department at Waterloo Lutheran University when I was an undergraduate in the late 1960s, stressed how important it was to be a public historian in the late twentieth century, having been one himself for a time during the Second World War. My “Doktorvater” at the University of Lancaster, Dr John Macdonald Mackenzie, now Professor of Imperial History Emeritus at that university, allowed me the freedom to develop my interests in British Imperial and aboriginal history, stressing the significance of indigenous resistance movements. I would also like to thank Dr Dean M. Jacobs and the citizens of Bkejwanong for always supporting me for more than twenty-five years. No one could ever have asked for more. Also a credit is owed to the Mi’kmaq people on the island of Newfoundland – the Federation of Newfoundland Indians (fni) – for introducing me to the subject of land and treaty rights in 1978 and also allowing me to work with them on their issues of land and status rights since then. Only recently (2008), have the fni finally won their struggle to be recognized as one of the original peoples of Newfoundland, which they were effectively denied soon after that province’s entry into Confederation in 1949. Finally, and most significantly, I would like to thank my family, without whom this book would never have been written or published. As Momaday wrote: “The events of one’s life take place, take place.”4 And so it has been with me; on 20 February 2007, while visiting Mayan sites in El Salvador, Honduras, and Guatemala, I suffered a stroke near Escuintla (west of Guatemala City) while photographing the Agua Volcano. Ute Lischke, my wife, saved my life, getting me to Hospital Genesis in that village in time, where my Mayan doctors cared for me. After getting back to Toronto, Ute, Jeffrey, and Paul-Emile saved me again from the horrors of the Ontario Heath Care system. Chi Meegwetch! Near the banks of the Bear River, Ontario 28 October 2008

No Place for Fairness

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Introduction

A word of caution is in order at the outset about the scope of this study. Thomas King has written in his Massey Lectures that the “truth about stories” is “that’s all we really are.”1 These are my stories. The author is biased. He is Metis. And “we are still here.”2 Metis, then and now, are mediators, facilitators, interpreters on these indigenous issues.3 They, as I have written elsewhere,4 are also negotiators on their own behalf. As people in between, they have also been forgotten until recently. Since the author worked for the Ontario provincial government from 1979 to 1991 (and thereafter for First Nations), he knows from his own experience about the “inside” of the history of many of the stories, which he recorded and which are discussed herein. As such, this study is not intended to be a definitive scholarly and independent analysis of these events. This analysis will only come when all of the documentation is available from all sources, including government records (many of which are not now available) and all of the oral traditions of the taa to which I do not have access. Hopefully, this work will add some small amount of knowledge and understanding to the events from the perspective of someone who had a small role to play in them, primarily as a recorder of events while working inside the Ontario bureaucracy at this time. Professor John S. Long, currently at Nipissing University and a reviewer of this manuscript, captured the essence of my story when wrote that We learn of ministers and their senior officials resisting real efforts to resolve problems, and senior officials and field staff who resist government attempts at resolution. The author describes how entities like the Indian Commission of Ontario and the Native Affairs Directorate were

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largely delaying tactics and “mailboxes” under successive governments of various stripes. From the Davis Tories through the Peterson Liberals to Rae and the ndp, and then the Harris Tories, we see variations on this theme. Under Ian Scott, some progress was made, although his efforts were thwarted from within (and by his own competing responsibilities and pet projects); his officials were astounded that he wanted to make a settlement offer to the Teme-Augama Anishnabai after the latter lost their court case. Rae’s government was a disaster; a symbolic political accord (watered down by government lawyers) was signed, essentially no issues were settled (unless the ground had already been smoothed, and even this was no guarantee) and aboriginal people were shut out of constitutional processes. The Harris government dissolved the Indian Commission and brought us the death of Dudley George, as the opp deviated from its earlier and later peaceful role, under direction (the author suggests) from Harris’s office. This is a story about the dangers of bringing aboriginal peoples’ political rights into the Euro-Canadian legal system, especially without a good legal team. The author shows that a legalistic approach by government is wholly inadequate; more important things like fairness are paramount. Field personnel who simply believe that everyone should be treated equally can prevent problem resolution and stir up a racial backlash. Chapter ten brings us to the Ipperwash Inquiry and its recommendations.5 So much for progress over the last four decades or so. As we struggle collectively to address such indigenous issues in the early twenty-first century, it is hoped that we can see the failings of the immediate past in a clearer light. It is no longer possible to deny their reality and put them on a Victorian shelf of curios, as one federal official stated in the late 1980s, for another generation to resolve. The issues are not “theirs,” but ours, as Canadians. The primary focus of this study is then on the Ontario government, its policies on “white issues” rather than “Indian issues.” Traditionally, non-indigenous scholars, commentators, and many government officials have seen these issues as “Indian” ones. For the perspectives of the taa, or any other First Nations, to which I was not privy at that time, or subsequently, readers will have to look elsewhere for their stories, whether in writing or in their oral traditions. Begun shortly after Christmas 1997, this study has had a fairly long history in itself. The initial reviewers in the late 1990s refused to believe

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that racism itself existed in the Ontario or the federal government on this issue. The final report of the Ipperwash Inquiry dispelled that curious notion only recently (2007). This book also complements my Circles of Time: Aboriginal Land Rights and Resistance in Ontario (1999), in which I focused on selected stories of First Nation communities and their negotiations with non-aboriginal governments on various issues. Circles of Time was essentially an external analysis of relationships between First Nations and non-aboriginal governments in Ontario – the outside landscape. In contradistinction, this study focuses on the inner workings of Ontario’s aboriginal policies in the late twentieth century, and specifically on taa land rights issues. This study is also based on the philosophical underpinnings of Circles of Time rather than on a linear approach usually adopted by traditional European-based knowledge systems. The concept of circles of time is a representation of aboriginal history that is not bounded by time but by specific places.6 One of the longest and most vexing land rights issue is that of the Temagami land rights issues (commonly called or misrepresented as a “claim” of indigenous people on governments), or the Bear Island case as it is sometimes called. This work is a study of the history, litigation, and negotiations of the Bear Island issues based on my work as a public historian in the 1980s and 1990s. Bear Island has received scant attention from Canadian scholarship largely because it has been viewed as a “failed claim.” It is hoped that we can learn from the lessons of the Bear Island issues and, in future, find new, nonconflictual ways to resolve such issues. The people of Bear Island have had an inordinate effect on non-aboriginal people and governments with respect to indigenous land policies since the Robinson Huron Treaty was agreed upon in the mid-nineteenth century. Former Chief Gary Potts drove this message home to me one late August evening in 1999 at the summer gathering place of the taa on the shores of the northeast arm of Lake Temagami. He stated that the taa, through their indigenous knowledge, had lit a piece of birch bark by recalling their oral traditions and stories about their tribal motherland. In doing so, the lit piece of birch bark had turned into a conflagration on their aboriginal title and land and treaty rights issues and had shaped Ontario’s and Canada’s aboriginal policies. As such, aboriginal land policy was an aboriginal initiative and something not shaped or guided by politicians or bureaucrats in Ottawa or Toronto, who had very limited knowledge either about aboriginal people or their places. They knew very little about Bear Island until these land rights issues were initiated by the taa.

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Where are we now? On 18 December 2002, the taa and the Ontario Native Affairs Secretariat announced that a “milestone” had been “reached in [the] Temagami Land Claim Settlement.” A settlement agreement had been signed by the negotiators among the Temagami First Nation and the federal and provincial governments. Part of the press release, which was posted on the Ontario Native Affairs Secretariat Web Site, outlined the basis for the agreement as follows: toronto – Negotiators for the Ernie Eves government, the Temagami First Nation and the Teme-Augama Anishnabai have reached agreement on the elements to settle the Temagami land claim, David Young, Attorney General and Minister Responsible for Native Affairs, announced today. The key elements include 127 square miles of land for the creation of a reserve and an economic development package worth approximately $4 million, including a land component. Ontario will also pay $20 million in financial compensation … Chief Alex Paul Sr. of the Temagami First Nation is pleased that consensus has been reached on what will be included in the final agreement. “We have come a long way in our 125-year struggle for justice,” said Paul. “Like our ancestors, we have sought to secure a future where our people can thrive for generations to come. Today’s achievement marks a new beginning for us; it is the beginning of our future.” “This agreement is a major milestone in the evolution on Daki Menan,” said Chief Doug McKenzie of the Teme-Augama Anishnabai. “It marks the beginning of a new relationship between the Teme-Augama Anishnabai and all who now share the benefits from our homelands. Chi-Miigwich Creator.” Ontario and the Temagami aboriginal community have agreed to ensure the protection of the Temagami shoreline by the creation of a waterway park, or by another appropriate legal designation. Shoreline areas designated as having high mineral potential will not be included in the park and will still be available for mineral exploration. The proposed reserve will be located within 149 square miles of land set aside for settlement purposes by the Ministry of Natural Resources in 1996.7 Since 2002, negotiators from all three parties have been working away at the drafting of a legal text for a final settlement agreement that, it was hoped, would be completed by December 2006, but that has yet to happen.

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The final step will be ratification of that agreement by the taa and then by Ontario and Canada perhaps in 2009 or within the next few years. The basic package remains the same as in 2002, as reported on 24 May 2006:”The key main elements negotiated remain the creation of a reserve comprising of up to 130 square miles of land; the creation of a waterway park on most of the mainland shoreline of Lake Temagami; a community site planning process; the provision of $20 million financial compensation; and an economic development package worth about $4 million. These key components of a settlement remain intact. There has been no significant change to the proposed settlement agreement.”8 Why did it take so long (now more than 159 years) for the taa to reach a preliminary agreement on the Temagami land rights issues? Why were the taa treated in such a racist fashion and persecuted in their own homeland, N’Daki Menan, by the provincial government and its officials? The answer lies, in part, in the history of Ontario indigenous policy. The primary focus of this work is to explain how a contradictory imperial policy of protection and assimilation became translated into process on the ground and how the Teme-Augama Anishinabe successfully resist this intrusion onto their tribal motherland and their way of life. The taa maintained their continuity, resisted, and survived through their oral traditions by remembering who they were and where they were going. It has been a long and hard-fought battle just to survive as a people. They succeeded in negotiating a settlement agreement from the provincial government. While the taa, with the current settlement agreement, have seemingly lost their aboriginal title to N’Daki Menan, they have at the same time kept their aboriginal rights to much of their homeland and now effectively have treaty rights over the remainder outside of their proposed reserve of approximately 127 square miles. This fact is a significant commentary on the government processes for aboriginal land rights as well as how the Canadian legal system has attempted to address these rights since the Calder decision of the Supreme Court of Canada in 1973, which recognized aboriginal title for the first time. The federal or the provincial governments have separate land rights processes for specific claims (those arising out of breaches of treaty rights or related administrative errors of government) or for comprehensive claims (those areas where no treaty has been made). Such a schemata does not cover all issues and many of them bounce back and forth between the two. The primary political consideration is only the magnitude of the settlement in relationship

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to its acceptance. If an issue does not impact on white people; it is acceptable. Otherwise it remains a Victorian curio. In fact, aboriginal land rights do not really fit into neat policy categories devised by non-aboriginal governments, which helps to understand why those policies do not work in a non-aboriginal policy context. In part, this is an explanation of why it has taken so long to resolve the land rights issues of the taa. This work is also about empires and resistance to them – to non-conquest.9 Since the mid-twentieth century, when the British Empire began to begin its long process of decolonization in Indian and Africa, it has been assumed that this empire did not exist elsewhere, especially in the colonial nation-states that had developed as offshoots – as little empires – in places like Canada, Australia, and New Zealand. For indigenous peoples in these imperial contexts, their struggle and resistance continue to this day. Many indigenous people, even in imperial contexts, were not conquered. This study is an act of storytelling about the resistance of aboriginal people to imperialism – to the nation-states of Canada and specifically to Ontario as it relates to aboriginal land and treaty rights, including all forms of resource gathering and harvesting. Government policy has been defined as “any course of action adopted as advantageous or expedient.” Policy is also multidimensional and multifaceted, as J.W. Cell has aptly noted, “as being something rather less fixed, something rather more historical.” As a result, it is clear that at any moment in time there is “not so much policy as policy formation, an unsettled and changing set of responses by government to the continual interaction among men [and women], forces, ideas, and institutions.”10 What is important about aboriginal policy then is its actual practice on the ground and how it directly affects the lives of aboriginal peoples and their communities. The rest is mere propaganda that is generally used to justify actions of the nation-state both before and after the results of the policy or its formulation. Indigenous people and their places are more significant in the long-term view than the policies formulated by empires and nation-states. It is this definition that will be used in this work. aboriginal policy – or more aptly in this context, processes – must be viewed at least as much from the diverse perspectives of indigenous people and places rather than from that of non-indigenous governments.11 Chapters 1–3 show how the taa land rights were subverted by the imperial aboriginal policies of the British imperial government through the Royal Proclamation of 1783 and the process set up under it, which led to the Robinson Huron Treaty of 1850. Through a calculated “error” of the local

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Indian Department, the taa were effectively denied their aboriginal title and then their treaty rights after 1850. By denying that the taa had signed this treaty, policy (and the process set up under it) became a form of institutional racism. The very existence of the taa in the late nineteenth and twentieth centuries was negated, and thereafter there was no place for fairness. Chapter 4 explores why the Bear Island claim became the focus of the provincial government and what happened as a result in terms of policy. Chapter 5 explains how the taa land rights became the focus of a trial and paradoxically the subject of negotiations. In chapter 6, tells how the provincial government transformed its attitude to the Bear Island land rights as a consequence of both the continuing litigation and the negotiations from 1987–90. The Temagami blockades are the subject of chapters 7 and 8. These acts of resistance – essentially “actions of peace”12 – had a huge long-term impact on future blockades such as those in Oka, Northern Ontario (1990), Ipperwash (1995), and Caledonia (2005 to the present). Chapter 9 is self-explanatory: “Oka and Blockades in Northern Ontario, Summer 1990.” In chapter 10, the great dearth of provincial aboriginal policy is highlighted; its failure has left a profound and sad legacy for aboriginal people in the early twenty-first century. The retrospect reflects on the impact that the people of Bear Island have had, out of keeping with their numbers, on non-aboriginal people and their governments since the mid-nineteenth century. It is hoped that this story will lead towards a place where there is fairness. As we struggle collectively to address such indigenous issues in the early twenty-first century, it is hoped that we can see the failings of the immediate past in a clearer light. It is no longer possible to deny their reality and put them on a Victorian shelf of curios for another generation to resolve.

1

Meeting Places and Negotiations, 1763–1850s

Almost three decades ago, I was drawn to Walpole Island – a very powerful and sacred place located in Lake St Clair. It is the Third Stopping Place in Midewewin history.1 The Midewewin is the medicine society of the Anishnabai (“the Original People”). A Midewewin Elder, Edward BentonBanai, has described how this island was created according to the legends of the Anishnabai: Only a few of the people, mostly elders, were able to keep the Sacred Fire alive. But the prophecies said that “a boy would be born to show the Anishnabek back to the sacred ways.” It was prophesied that he would show the way to “the stepping stones to the future of the Anishinabe people.” That boy did come among the people. He had a dream of stones that led across the water. The Mide people paid attention to this dream and led the people back to the river to the North. The river turned into a lake, and at a place where the river was formed again, they rested awhile on an island. This island is known today as Walpole Island.2 Islands like Walpole and Bear Island in Lake Temagami are sacred places, where the elements of air, water, and fire are powerful spiritual forces and influence all levels of experience – international, national, and individual. Aspects of these islands have too long been ignored as primary elements of aboriginal history – of oral traditions embedded as family histories. Non-aboriginal people who trespass on such islands often suffer the

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consequences of their actions.3 Islands are also multidimensional “borders” that exist between places and countries, cultures and peoples. The histories of these islands as sacred places can be found within circles of indigenous time and within their spirit and natural world of being. In Canada, most aboriginal lands either include, or are adjacent to, a body of water. Water is integral to aboriginal creation stories. Water is also spiritual, because it is the lifeblood of Mother Earth: without water, Mother Earth and aboriginal peoples cannot survive. For aboriginal peoples water is not negotiable: it can be shared but never sold. It is critical to our understanding the character of aboriginal history and aboriginal sovereignty.

The Two Row Wampum It was not until 30 September 1986 that representatives of the Ontario Government chose to come meet the Teme-Augama Anishnabai (the Deep Water People) (taa) at Bear Island as part of the treaty-making process. Why did it take 136 years? The answer to this question makes up a large part of the story of the taa’s struggle for rights to their land. The first government official to know the taa was Metis (meaning mixed and connoting a person of mixed indigenous and usually French or British descent)- George Ironside Jr (c. 1800–63), the superintendent of Indian Affairs at Manitowaning on Manitoulin Island in Lake Huron in the mid-1850s.4 His mother was Vocemassusia (Isabella, a Relative of the Prophet5), and his wife was Anishnabai, too.6 His father had been the Indian superintendent at Amherstburg (in what is now Southwestern Ontario). At least since the 1840s, each year, the taa travelled from their homeland, N’Daki Menan, located north of North Bay, to Manitoulin Island in late summer to pick up their presents, such as clothing, beads, provisions, and ammunition and to trade. Presents were those goods given out by the British to the aboriginal peoples as forms of payment. Ironside knew the taa’s language and culture, although he was a newcomer to Manitoulin Island. The presents and provisions he gave were distributed under the framework of Kaswentha (Gus-Wen-Tah, the “river of life”), also known as the Two Row Wampum, made under the Covenant Chain of Silver. The Two Row Wampum represented the relationship between the English imperial government and the aboriginal Nations: namely, peace, respect, and trust. This Wampum was first entered into with

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the Dutch at the Treaty of Albany in 1664. It was further established with the Anishnabai at the Treaty of Niagara in 1764 with the Crown’s representative Sir William Johnson. The Two Row Wampum has been defined as a “bed of white wampum shell beads symbolizing the sacredness and purity of the treaty agreement between the two sides”: Two parallel rows of purple wampum beads that extend down the length of the belt represent the separate paths travelled by the two sides on the same river. Each side travels in its own vessel: the Indians in a birch bark canoe, representing their laws, customs, and ways, and the whites in a ship, representing their laws, customs, and ways. In presenting the Gus-Wen-Tah to solemnize their treaties with the Western colonial powers, the Iroquois would explain its basic underlying vision of law and peace between different peoples as follows: “We shall each travel the river together, side by side, but in our own boat. Neither of us will steer the other’s vessel.”7 This Wampum Belt was initially given by the English to the Haudenosaunee to cement the treaty entered into at Albany in 1664. The Haudenosaunee people were the “grandfathers” to the First Nations of the Western Confederacy.8 The Two Row Wampum also figured in Pontiac’s War and the treaty made after it (the Treaty of Niagara of 1764). This war, which began in May 1763, was fought by the First Nations under the leadership of Pontiac against the British imperial government to protect the nations’ traditional territories and cultures from “frauds and abuses.”9 It was, in fact, an indigenous resistance movement. In this war the First Nations were not conquered. For example, the military historian, Ian K. Steele reaches the following conclusion in Warpaths: A diverse group of tribes, without the coherence of the successful Six Nations, Cherokee, or Creek confederations, had not been conquered; however, Amerindians had inflicted as many as two thousand casualties without any effective retaliation, a coup reminiscent of earlier massacres. The British army could not hope to conquer the Amerindians, given fiscal restraints and a peacetime army of only seventy-five hundred men. In the peace settlement, Amerindians appeared to recover the

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world they had lost; their presents were resumed, their lands were protected by the [Royal] proclamation of [1763].10 A year after the war, Sir William Johnson indicated to the British imperial government, which feared the military power of the Six Nations, that it might wish to come to terms with them in a treaty, specifically the Two Row Wampum.11 On 27 April 1764 he wrote to his superior, Thomas Gage: … [Although] I was somewhat [doubtful] of the sincerity of the Western Nations, & considered their promises in a great measure as arising from the want of Trade, for [your] aversion of these Nations cannot be removed but by time, & a treatment which we could not give them since their desire for peace, neither have they met with a Sufficient check, yet I was in hopes from [what] I had heard for some time past that on finding their disappointment of French Succours, they had coolly deliberated on the ill consequences which must attend a continuance of the War, & in consequence thereof had been sincere in their declarations, but they are a fickle People easily persuaded, & I am apprehensive [they] have still many dangerous people amongst them, who imagining, we are making no offensive preparations, have spirited them up to renew hostilities with the same or such like delusive arguments before made use of.12 Furthermore, Johnson had made it clear that the major issues to be negotiated under the Two Row Wampum included trade and commerce between the nations as well as the land and its uses.13 The Royal Proclamation of 1763 was promulgated by King George III in response to this indigenous resistance movement and the Treaty of Peace that was made thereafter. However, the Proclamation was an imperial document that did not take into consideration the aboriginal treaty-making process, specifically the offering of the Two Row Wampum. Instead, it unilaterally established the administrative framework for the newly established British colonies in Quebec and North America. Although the Proclamation also recognized and reaffirmed the already established “Indian territory,” it limited territorial expansion and established British imperial rules regarding the treaty-making process under the Two Row Wampum. Although the First Nations had negotiated in good faith, the British had set the terms, thus limiting the boundaries of negotiations over land rights. This founding

14

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No Place for Fairness

document of Canada is still appended to Canada’s Constitution Act (1982). It deserves, as such, to be quoted at length below, as it relates to indigenous people, their territories, and their trade: And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds,—We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief in any our Colonies of Quebec, East Florida, or West Florida, do presume, upon any pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions: as also that no Governor or Commander in Chief in any of our Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them. And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid. And We do strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained. And, We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within Countries above described, or upon any other Lands which, not having been ceded

1763–1850s

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to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements. And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians; In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement; but that, if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively with which they shall lie; and in case they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose; And we do, by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the governor or Commander in Chief of any of our Colonies respectively where such Person shall reside, and also give Security to observe such Regulations as We shall at any Time think fit, by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade …14 The Proclamation reaffirmed the boundaries of “Indian Territory” as well as how the land would be used by the First Nations and their peoples. All of these territories and land rights were to be their “absolute property.”15 As well, rules and regulations were established for trade between aboriginals and non-aboriginals. The Proclamation recognized the great significance of aboriginal trade and the existing trading system: And we do, by the Advice of our Privy Council, declare and enjoin, that

16

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the Trade with the said Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the governor or Commander in Chief of any of our Colonies respectively where such Person shall reside, and also give Security to observe such Regulations as We shall at any Time think fit, by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade …16 The diplomatic initiatives that came from Pontiac under the Two Row Wampum led directly to the Royal Proclamation of 1763. The rights in this Proclamation were reaffirmed one year later in the Grand Council of Nations held at Niagara in 1764.17 The Grand Council met at the “crooked place” on the Niagara River in July 1764. It was there that many nations, including the taa, met Johnson and other officials of the Crown. It is noted that Johnson gave the Anishnabai Nations “the great Covenant Chain” at the “General Meeting with all the Western Indians in their Camp.” He spoke to them as follows: … there now only remains for us to exchange the great Belt of the Covenant Chain that we may not forget our mutual Engagements. I now therefore present you the great Belt by which I bind all your Western Nations together with the English, and I desire you will take fast Hold of the same, and never let it slip, to which end I desire that after you have [shown] this Belt to all Nations you will fix one end of it with the Chipaweighs [Chippewa, Ojibwa Nation] at St Mary’s. Whilst the other end remains at my House. And moreover I desire that you will never listen to any News which comes to any other Quarter. If you do, it may shake the Belt. But keep your Eyes upon me, & I shall be always ready to hear your Complaints, procure you Justice, or rectify any mistaken Prejudices. If you will strictly observe this, you will enjoy the [favour] of the English, a plentiful Trade, and you will become a happy People. On the contrary, if you listen to any People whatsoever, who do not like the English you will lose all these Blessings, and be reduced to Beggary & Want … I Exhort you then to preserve my Words in your Hearts, to look upon this Belt as the Chain which binds you to the English, and never let it slip out of your Hands.19 An unidentified Ojibwa Chief replied as follows: “I am of Opinion that it is

1763–1850s

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best to keep the Belt of the Covenant Chain at Michilimackinac, as it is the Centre, where all our People may see it. I exhort you to hold fast by it, to remember what has been said, and to abide by your Engagements.” And it was reported that “Sir William Johnson then gave Medals to the Chiefs, and exhorted them to look at them often in order to remind them of their [engagements].”20 On 5 August 1764, Johnson reported to his superior, Thomas Gage, that a treaty had been made: “It is impossible from my present hurry for me to descend to farther particulars, on my Arrival at home I shall Send you a Copy of the [Treaties] & [etc.] for your farther information.”21 This treaty is still known today as the “Niagara Treaty Conference Twenty-Four Nations Belt.”22 The Anishnabai perspective on the significance and the meaning of the treaty remains in their oral traditions. The “Niagara Congress,” as they came to call it, was a meeting of twenty-four First Nations – members of the Great Lake Confederacy, which included the Teme-Augama Anishnabai – with the Crown’s representatives. It lasted more than a month and more than two thousand people attended. With the “Great Lakes Confederacy” of the Western Nations, Johnson entered into a new relationship on behalf of the Crown, making promises that were recorded both on the Twenty-Four Nations Belt and in the written treaty. This Belt was given to the Ojibways at Sault Ste Marie for safekeeping and eventually found its way to Manitoulin Island by the mid-1800s. The promises encoded in the belt were recited each year at the gathering of the Nations with the Crown’s representatives. And for many years thereafter, the British Crown kept the promise of the annual presents. The value of the presents was not only material goods, but as symbols of the relationship of sharing and respect between the Crown and its allies. While the annual presents and the Covenant Chain itself were important in material ways, and the wampum belts preserve the memory of specific historic events, to the First Nations it is not the specific event that is of paramount importance, but the relationship that was created and continues to exist.23 The First Nations have a clear remembrance of it: While the treaties are like stones marking a spot in time, the relationship between the Nations is like two equals, respecting each of their differences but supporting each other for a common position on peace, order and justice for all. The brotherhood created by the Twenty-Four Nations

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Belt represents a relationship of both sharing and respect. The sharing is reciprocal: as the First Nations shared land and the knowledge in the past, now that situation is reversed, the generosity of spirit and action is expected to continue. The respect is also reciprocal: respect for each other’s rights, existence, laws and vision of the future. The 1764 Twenty-Four Nations Belt marked an important place in time for without the help of the different nations coming together in unity it is doubtful that there would be a Canada today. The British made many promises to the Twenty-Four Nations. It is now up to the leaders to do and all descendants of those Twenty-Four Nations to make sure that those promises are kept.24 The power of this oral tradition has survived to this day among the Anishinabeg. However, this history, which exists both orally and in written documents, has not been recognized by non-aboriginal governments but, in fact, has been forgotten.

The War of 1812 and Its Aftermath Even though the First Nations honoured their alliance with the British Empire during the American Revolution and the War of 1812. This relationship began to change after the war. The British were convinced that the United States would never again attack the colony of Upper Canada, so it was felt there was less necessity for an aboriginal army along the border of the colony. Thus, the British decided then that they no longer had to incur favour with the First Nations since their “military services” were no longer required. Beginning in the 1830s, the British Government began to cut costs by downloading its responsibilities to the colony of Upper Canada. At first, only “resident British Indians” who lived in Upper Canada were to receive distribution of the annual presents. Those living in the United States, despite how loyal they may have been, were no longer entitled to these goods. Then, in the 1840s, the quality and the quantity of the presents declined rapidly. This British imperial decision did not have the support of the colonial legislature. In 1846, the Legislative Assembly petitioned Queen Victoria “to prevent the discontinuance of presents to the aborigines of British North America and their descendants.” Colonial reluctance may have slowed things down, but by 1851 the Secretary of State for War and

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the Colonies stated that by 1856 the British imperial government would no longer be issuing or paying for presents. The last presents were to have been given out in 1855. This action was vigorously denounced by First Nations in 1858–60 and was a focal point of resistance when Prince Edward, Queen Victoria’s son, visited Canada in summer 1860.25 Crown representatives of the British (and after that, the local representatives of the colonial government’s Indian Department) continued to record the giving out of presents to the taa of Bear Island – right up to 1855. This means that the taa, their community, their names, and their homeland were known to the British negotiators of the Robinson Treaties. From this time onwards, there were some opportunities but in the end there was simply no place for fairness.

2

First Nations and the British “Civilization” Policy in the Early Nineteenth Century

Between 1815 and 1850, more than one million British and US emigrants arrived in Upper Canada. Sponsored by the British imperial government, this wave of immigration was intended to provide settlers for the colony, which had been safeguarded from the Americans by the First Nations in the War of 1812. During that conflict, Shawnee Chief Tecumseh was killed at the Battle of the Longwoods (in Upper Canada) on 5 October 1813.1 After the war, the warriors of the First Nations, according to their oral traditions, received medals from the Crown for their service, while the incoming settlers were granted unceded aboriginal lands (including some lands that were part of the Indian territory and for which there was no treaty contrary to the Royal Proclamation of 1763). Both oral traditions and the written record confirm this giving away of aboriginal land. But the First Nations did not forget the solemn promises the Crown made to them in the treatymaking process protocols that began with the Two Row Wampum, and their communities began to resist governments and the settlers who attempted to take away their lands and waters.2 During this period of migration, in the late 1820s and 1830s, under the governors of Upper Canada – Sir John Colborne and then Sir Francis Bond Head – the British imperial government began in earnest to implement its policy of “civilization” for the “wild Indians.” This policy had three distinct prongs: (1) assimilation through education and miscegenation; (2) protection of aboriginal peoples from extermination, provisions for which were unenforceable and unenforced; and (3) centralization, by which aboriginal peoples were deprived of their territories and placed on comparatively small, “postage-stamp”-sized reserves. This segregation was made possible

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through treaty-making documents such as the “Schedule of Reservations,” which was appended to the Robinson Huron Treaty and the Robinson Superior Treaty of 1850. This policy of “civilization” has continued down to this day and its results are with us still. Consider the wreckage from the residential schools system and the ongoing economic poverty and despair, the alcohol and substance abuse, and the tragic suicides that plague aboriginal communities. Attempts to “civilize” aboriginal communities of Upper Canada were tried by the German Moravian missionaries in the 1790s, but they recognized that their attempt had failed by the outbreak of the War of 1812. The British government’s policy had been used in Lower Canada, possibly prior to but definitely following the war. The British imperial government had first applied the policy to the “more settled” aboriginal people of Lower Canada who had been under the influence of the Catholic clergy since the seventeenth century.3 By 1829, the policy was deemed a “success” in Lower Canada and Lieutenant Governor Sir John Colborne4 ordered that it be applied to the “wild Indians” of Upper Canada, who were also referred to as “nomadic savages.”5 The British imperial “civilization” policy was intensified with by the withdrawal of the British imperial presence in British North America in the 1840s. In addition, with immigration came the struggle for self-government in the colonies. The British government granted responsible government to the settlers of Upper and Lower Canada in 1849, gradually withdrawing its protection of the First Nations. For the indigenous peoples, this was what I have referred to the “dark side of responsible government.”6 In 1860, the British handed over imperial responsibilities to the local Department of Crown Lands, of which the Indian Department had become a part. In so doing, a conflict of interest was built into the apparatus of settler governments in British North America, because the latter had conflicting responsibilities both for lands and for “Indians” and their unceded lands and reserves. Simply put, when lands were required for settlement they were taken away from First Nations either by treaty or otherwise and with little or no compensation. The British North America Act of 1867, by which the Confederation of Canada was achieved, completed the job by placing authority for “Indians, and lands reserved for the Indians” in the hands of the federal government. When the Indian Act was consolidated in 1876, it effectively displaced the relationship between the Crown and the First Nations that had existed under the Covenant Chain of Silver and reinforced under the

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Treaty of Niagara in 1764. In the 1840s, when the Teme-Augama Anishnabai resisted the takeover of their territories by private individuals and mining companies during the copper boom of that period, the government responded according to the policy of “civilization.” It was a policy that marked a significant change in the treaty-making process and that encouraged colonization and assimilation.

Merivale and the Origins of the “Amalgamation” Policy The British imperial “civilization” (later “amalgamation”) policy was crucial to the colonization of aboriginal peoples in Canada and elsewhere in the empire. By the mid-nineteenth century, the British imperial government was formally reviewing its solemn promises of land rights to aboriginal peoples and its policy commitments to uphold these promises, as outlined in the context of the Royal Proclamation of 1763. One such commentator on British policy was Herman Merivale (1806–74), who was the most important civil servant at the Colonial Office between 1847 and 1860, a period of enormous transition. Merivale is important because he understood the plight of the aboriginal peoples in the colonies and fought for a policy that would respect their way of life while at the same time benefit the interests of the British. Nevertheless, he also became the “enemy” of First Nations and the Metis Nation in particular. It was Merivale who did his utmost to discredit my great-great-great-grandfather, William Kennedy (1814–90), and Kennedy’s nephew, Alexander Kennedy Isbister (1822–88), when Merivale was at the Colonial Office.8 In his Lectures on Colonization and Colonies, first published in 1841, Merivale describes how the aboriginal people in the usa and the Canadian colonies were “settled” – or, more to the point, how their lands were taken without their consent. In this manner, the Cherokees, Choctaws, and Creeks were settled by the United States on lands within the states of Georgia and Alabama; the remnant of the Delawares, of the Six Nations, and other tribes famous in early colonial history, in New York, Ohio, and elsewhere: and a similar policy has been adopted by ourselves in the case of another part of the Six Nations, the Mohawks, and Chippeways, in Upper Canada: the Algonquins and Nipissings, placed in the same country in 1763; the natives of Cape Breton; and in many other instances.9

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Merivale’s note on the Royal Proclamation of 1763 is significant. It accurately describes that proclamation as a “treaty” without any qualification: The treaty by which this was affected is a remarkable instance of the mischievous manner in which even the best intentions towards the Indians have been carried into execution. After declaring in the most solemn language the perpetuity of the cession of the lands, it ends with the saving clause, “unless the Indians shall be inclined to part with them.” By virtue of this proviso, every art has been introduced to obtain their consent to the usurpations made upon them: bit by bit they have been deprived of their magnificent hunting-grounds, which are now altogether possessed by whites. (Returns from Canada, 1839, p. 66)10 In his analysis, Merivale went on to put forward the historical theory, which was readily accepted by many British imperial commentators. Since aboriginal people are becoming extinct anyway, the British may as well do as they please. … the hunting tribes which first became known to Europeans were the mere fragments of a great family of the human species, losing, in every successive generation, something of the qualities which had distinguished their predecessors, diminishing in numbers and resources, and on their way toward extinction; and there are some who hold the same opinion respecting all the races commonly called savage.11 He also wrote that this was not always true of “savage races.” The recent histories of the Red River settlement, the “Chippaways of St Clair in Upper Canada,” and the “Micmac Indians of the Gaspe” were clear evidence to the contrary.12 For Merivale, the most important consequence of the granting of colonial self-government in the British colonies was that it created complex problems for the Colonial Office concerning the future of the aboriginal population. He acknowledged the devastation wrought on aboriginal peoples on Turtle Island. In so doing, he advocated more direct English intervention in colonies as a means of protecting aboriginal peoples from the incoming settlers and the local colonial governments. He was aware of these particular effects: “The wretched details of the ferocity and treachery which have marked the conduct of the civilized men, too often of civilized governments, in their relations with savages, either in past times, or during the

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present age, were rich almost beyond precedent in such enormities.” In his Lectures, Merivale was much more interested in finding a solution to these problems. If this process were to be stopped, then policy and actions by non-aboriginal governments were immediate and necessary. For him, the essence of such actions included “the duty and right policy of colonists and colonial government towards the native inhabitants of the regions which they occupy.”13 Merivale commented on the devastating consequences of English conduct towards aboriginal people. He believed that to exaggerate the effects of contact was … a painful, and I am sure an unnecessary task. The general features of the subject are by this time sufficiently known, and perhaps regarded with sufficient abhorrence: it remains for us now to act; and with a view to that purpose, it is perhaps desirable that we should not cease to dwell so exclusively on the dark side of the picture, as many have hitherto done; still more, that we should not rest contented with vague and general desires of good, or imagine that the evil influences at work are to be counteracted by great undirected efforts – by proclaiming principles – by organizing societies – by pouring forth the lavish contributions of national generosity, without examining for ourselves the channels into which they are to flow. All this is little better than idle philanthropy; or, it should rather be said, than the mere fulfilment of certain ceremonies, by which the mind relieves itself of the sense of a debt.14 It was not a question of just evoking guilt. In contradistinction, what was needed were “practical and dispassionate views” and actions requiring an enormous amount of “patience,” “faith,” “zeal,” “firmness,” and, lastly, “contentment in small successes and imperfect agents.” Merivale was accused by some of his English contemporaries of being far too pessimistic about the future of aboriginal peoples, but his honesty made him shy away from facile solutions.15 Merivale had second thoughts about the efficacy of solutions that advocated a change in the “system” by which aboriginal peoples were governed. The errors made in the past, he argued cogently, were not due to “conception” by any metropolitan government but rather a general lack of understanding of the consequences. He believed that the focus should be on the process rather than on policy. “Execution” of policy by the imperial government was the factor that had been most often ignored. He perceived

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that “laws and regulations” were almost always unenforceable. As a result, British imperial aboriginal policy was effectively shaped by process since the initiatives for change came primarily from the aboriginal people themselves. The actions of the “trader, the backwoodsman, the pirate, the bush ranger” were far more important elements for the development of a relationship between aboriginal people and Europeans than were laws. Laws reflected the society that established them and were of limited value as a means of social control between two or more different cultures. Laws and religion were not of much use after the “natives” had lost their “natural tendencies and capacities” and “ancestral habits” through contact. British imperial policy had, he argued, to take this fact into consideration in its initial policy formulation, but by the mid 1800s this action had not been taken. An opportunity had been lost to protect First Nations. Policy, then, was in direct conflict with the historical process, and perforce, by its sheer ubiquity, aboriginal resistance to the takeover of their lands continued unabated. The lack of protection has become a cornerstone of First Nation resistance ever since. What came to be referred to as the “native question”16 was thus seen in the mid-nineteenth century to be really a British problem. If the attempts at “reform and amelioration” were not originally “thwarted by the perverse wickedness of those outcasts of [Anglo] society,” then the first settlers would arrive and a similar effect would occur. The only realistic response by the imperial government would be the restraining “arm of power.” The imperial government should act systematically with “tact, prudence, and firmness” with the ultimate objective being the “protection” of aboriginal people from the white settlers. This action necessitated the civilizing of the aboriginal peoples. By this means, Merivale hoped it would be possible to reduce the worst effects of contact between the colonizers and the colonized. Ultimately, he believed that the only solution was the “euthanasia of savage communities,” by which the Native peoples would suffer a gradual erosion of their culture through a process of “amalgamation.” Merivale went on to argue that the power of the imperial government could be used effectively to protect First Nations from massacre or extinction by “the appointment in every colony of a department of the civil service for that especial purpose, with one exclusively devoted to it.”17 The idea, although not original, had never before been tried in the English colonies, although the Spanish colonies in South America had tried such an institution. Merivale was aware of the office of the deputy superintendent of Indian Affairs in the American colonies, an office that had been established and

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No Place for Fairness

extended to Quebec and Acadia after the conquest in 1758–60. He recognized how powerless the deputy superintendent had been in protecting the aboriginal peoples in the past and wanted to make the office a more formal and larger branch of the imperial government in order for it to be more effective in its role of protection. Merivale judged the Indian Department in the British colonies to be a failure. He wrote that there had long been “a considerable and expensive Indian department, with superintendents, secretaries, and interpreters; but the mismanagement of the affairs of that colony, as regards the natives, seems to have rendered them of little service, except to superintend the mischievous practice of the annual delivery of presents.” He did not approve of the department because it was run by white settlers who had little sympathy for the well-being and protection of aboriginal peoples and who were primarily concerned with the economic development of their colony. If the settlers obtained the power to protect aboriginal people, then their future would become even more perilous. (This was an accurate forecast of what was to happen both before and after the Robinson Treaties of 1850, especially when it came to the Teme-Augama Anishnabai land rights issues.) The history of aboriginal–European contact was critical to Merivale’s interpretation of the “native question.” He understood that conflicts of interest had to be avoided. In 1841, he advocated removing responsibility for the protection of aboriginal people “altogether from the colonial legislature.” This protection should be in the “hands of the central executive,” he wrote, which would then delegate its power to a special imperial department. The most important advantage of this system would be its impartiality, as Merivale put it, to “arbitrate dispassionately between classes.” The one disadvantage would be distance, i.e., the problem of obtaining accurate information from each colony in order to make a judgement when conflicts arose. In the end, however, Merivale believed the “able execution of native policy depended far more on individual tact, zeal, courage, and humanity” in making decisions than the “goodness” of any “systematic arrangement.” By this tacit admission, he was stating that European imperial structures had failed and were ill-suited to the dynamic processes underway in the meeting grounds of North America.18 At the Colonial Office, Merivale followed this precept by relying to a large extent upon the experience of colonial governors for accurate information. One prominent example was Sir Edmund Walker Head, in office in the mid- to late 1850s.19 The link between Merivale and Head, “the scholarly governor,”20 was real and tangible. They were both published

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scholars, shared common interests, and were friends. Moreover, Merivale briefed Head before he went out to the British colonies. He also exchanged a private correspondence with Head and prodded him to implement the practical results of self-government through a federation of the English North American colonies. This would be achieved, it must be added, at the expense of First Nations’ sovereignty and the dissolution of their land and treaty rights.21 From Merivale’s perspective, the officers of this imperial department would be responsible for the “detection and prosecution of offences” committed against the “native” and the “regulation of contracts” between “master and servant.” Instead of passing fixed laws regulating labour, Merivale argued that better protection would be provided if each case was examined individually by an officer from the department. In cases involving transient labour, the officers would also have the right to “control the summary power” that, for example, travellers could use against “native” labourers. The development of such a department and the delegation of specific duties to these officers raised the crucial question of enforcement. Merivale was acutely aware of the problems involved in applying the laws of one culture to another. His scheme would not succeed without resolving the legal difficulties that would confront the officers. Merivale believed that aboriginal peoples needed the protection of English law because it was the only way to check the actions of the European settlers, traders, and merchants. English law was, however, a distinct product of English culture, and “natives” in each colony would be placed at a distinct disadvantage if placed under its direct jurisdiction. They would, he argued, be “ignorant of it and would be tried for crimes of which they are not aware.”22 Merivale recognized these problems and believed it would remain an insoluble dilemma while “natives” remained in their “uninstructed state.” A gradual policy of amelioration, primarily through education would therefore have to follow protection; only then would cultural and economic conflicts in English colonies be reduced. On the question of amelioration, Merivale was greatly influenced by Governor George Grey of South Australia and his solution of immediate “amalgamation.” Grey argued that both “natives” and settlers should be put under English law from the initial period of contact. If “natives” did not interfere with white settlers, then they should be left alone and allowed to retain their own customs and laws. However, Merivale recognized the limitations of Grey’s plan. It did not take into account cultural differences among such diverse peoples as American Indians, Australian Aborigines,

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Maori, or Africans. He concluded that no one solution or policy was practicable for all regions of the British Empire. Instead, he argued, both central control and flexibility were needed. “Officers” in the “native department” should possess this legal power until the aboriginal peoples became “mature” enough to understand the laws and culture of English society. The consequences of a lack of flexibility were obvious, “a constant danger, either of the reduction of the native to actual slavery, or of the uncertain, and therefore mischievous interference of the authorities to prevent hardship in particular cases.”23 Merivale’s scheme was essentially a primitive type of trusteeship with officers functioning as imperial ombudsmen. These imperial officers would also have power to deal with those who lived closest to the First Nations – the European traders, merchants, and settlers. These “lawless aliens” possessed an “enormous power” for evil, committing such offences as selling alcohol. In New Zealand, one possibility that had been put forward to deal with the “buccaneers” and their raids was to give the Royal Navy “certain legal powers” that would make them into a kind of “locomotive tribunal, to take cognizance of offences committed by English subjects against natives on the high seas and in the islands.”24 In 1841, Merivale considered this idea to be only a temporary measure that could deal with the consequences of contact but not with its causes. (The idea of an independent tribunal has merit and has been pursued by subsequent governments in New Zealand-the Waitangi Tribunal – and also in a limited form in Canada.)25 As a political economist, Merivale wrote that the use and ownership of land was the most significant problem. Aboriginal people had different economies and ideas than European when it came to property. They, for example, generally shared their property within their extended families. Unlike most nineteenth-century Europeans, who led a sedentary existence on the farm or in a town, aboriginal people moved about on their seasonal round of activities within their territories. These economic and cultural differences created disadvantages for them when a reserve policy was implemented. To Merivale, it was quite clear that “fixing a body of people, generally harassed by defeats and wanderings, and in a condition most unfavourable to speedy improvement and in the midst of a country in process of rapid settlement” would fail because the “establishments of the whites soon press on the limits of the Indian ground; generally long before the Indians, kept, by the policy hitherto observed by American governments, in a state of insulation from the whites, have learnt to improve it.”26

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The real issue was what the imperial government should do in order to control the white settlers.27 Despite its apparent good intentions, the consequences of implementing reserves as part of the “civilization” policy were disastrous for both the settlers and aboriginal people. In doing so, European settlers saw valuable agricultural being land left idle. For aboriginal people, it meant restricting their rich and diversified economic base, which included, among other things, hunting, trapping, fishing, gathering, and trading. The only solution was to create more reserves in “some distant territory” that was yet unsettled. This arrangement would only last, however, until the settlers moved into that particular area, and then the same process would start over again. A reserve policy was therefore only a temporary measure and obviously did little to solve cultural and economic conflicts arising from prolonged contact. For the First Nations, migration from their traditional hunting lands had already resulted in a “loss of [their] capital and comfort.”28 The loss of their economic base was ruinous for the aboriginal people as they became entrapped in a kind of social and economic limbo, losing their original skills and at the same time finding it almost impossible, in the competition with white farmers, to adapt to an agricultural economy. Confusion and loss of purpose caused the “last and greatest of all these causes of degeneracy … insecurity, the despair of permanence, the conviction of approaching annihilation.”29 It is no wonder, then, that Merivale recorded that the “native” exhibited a kind of “sullen apathy.”30 Merivale’s analysis of the disadvantages of a reserve policy was quite prescient. At the Colonial Office, however, he was unable to do much to prevent their being created in the colonies of British North America and South Africa. In 1841, Merivale foresaw only three alternatives for the “ultimate destiny” of aboriginal peoples. The first was the most obvious and had already occurred in the Spanish imperial colonies: their extermination. The second was their “insulation,” essentially setting up reserves. The third, “amalgamation with the colonists,” was the one he preferred at that time.31 He did not distinguish between immediate and gradual “amalgamation.” Both “reason” and “experience,” he argued, made assimilation “impossible.” The Spanish and Portuguese experience had revealed the “ill success” of previous attempts. This “civilizing process” was “slow” and “uncertain.” The consequences of such a solution would also be unsatisfactory for the development of aboriginal people and colonists. In the end, for Merivale

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and his contemporaries, it was an issue of racism, since aboriginal people were, in their view, “savages,” and nothing could change this perspective. Religious and educational instruction for “savages” might succeed in making them “more innocent” but at the same time Merivale observed that it would hinder their intellectual development. The ultimate effect would be to render the apparently “civilized savage” into a person who was “feeble and dependent.” As far as the colonists were concerned, the project of “civilization” created undue hardship because it would take too long to obtain any concrete results, and the cultural and economic differences were simply too great. Thus, in Merivale’s view, there was only one practical solution to the “native question”: “amalgamation.” Compared with extermination and “civilization” it was the “very keystone, the leading principle, of all sound theory on the subject – that native races must in every instance either perish, or be amalgamated with the general population of their country.” By “amalgamation,” Merivale wrote that the “union of natives with settlers in the same community, as master and servant, as fellow labourers, as fellow citizens, and, if possible, as connected by intermarriage.”32 And, in fact, this form of policy – “amalgamation” – became Canada’s regional aboriginal policy after the mid-nineteenth century rather than a policy of “civilization.” It has remained as Canada’s policy towards aboriginal people to this date. To be successful, this alternative had to be an “immediate and an individual process – immediate, if not in act, at least in contemplation.”33 The emphasis had to be on the present, not on the future, and aboriginal people had to be regarded from the outset as “potential citizens.” Although Merivale admitted that “amalgamation” seemed to be “somewhat wild and chimerical,” he believed that it was better to confront the problem directly with “prudence” and to act quickly rather than to delay. He regarded the process of acculturation as irreversible and “amalgamation” was therefore the “only possible Euthanasia of savage communities.”34 He did not believe that aboriginal people could return to their traditional way of life.35 One of the important elements in the “amalgamation” scheme was missionary instruction, and it had made little or no impact upon aboriginal people since its introduction in 1841. Nevertheless, Merivale concluded that there was hope for change in the future, and he based this judgement on one of the most notable exceptions, the success of missionaries in the Pacific islands. The reasons for Merivale’s changing attitude to the “native question” between 1837 and 1874 cannot be understood apart from his

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experiences as an administrator at the Colonial Office. Enmeshed in midVictorian liberal imperialism, he failed to comprehend fully the essence of aboriginal spirituality, resistance, continuity, and survival. Merivale’s greatest failure was his inability to develop a comprehensive “native” policy or a process that would control the activities of the European settlers. Even more importantly, his attempts to implement and administer such a policy were wholly inadequate. Merivale, shortly after his appointment to the Colonial Office in 1847, recognized that in each region of the British Empire the “native question” was unique. The massive task of developing “native” policies, without adequate resources to assess each situation and to implement a course of action, was far beyond the capacities of the Colonial Office. Merivale and his colleagues in London had to rely upon the ideas and actions of colonial governors like Sir Edmund Walker Head. In addition, by the early 1850s, colonial self-government had been granted to the colonies and, as a consequence, administrative control over aboriginal people gradually passed from the Colonial Office to the local colonial government.36 Despite being aware of this situation, Merivale did virtually nothing in the 1850s to alleviate the situation while he was at the Colonial Office. The contradiction between Merivale’s ideas as a commentator and his actions as an administrator were already present in his Lectures with respect to aboriginal land policy. He argued that the colonies should have control over their own land because “if we recognize the principle that colonists should govern themselves, except in those particulars where the exercise of self-government would necessarily clash with the imperial sovereignty, this is one of the functions which should seem in theory more peculiarly fit to be exercised by the colonial, not the imperial, authorities.”37 Merivale did not reconcile the difference between settlers using the land for agricultural purposes and aboriginal title and treaty rights. The tragic outcome of this neglect for the aboriginal people was the loss of their treaty lands.38 His argument was that before the nineteenth century the problem had not arisen because there had been “systematic regulation” in the “disposal of lands,” there had been plenty of land for all to use for agriculture, hunting and trapping, and the “danger from Indians” kept the settlers from straying too far into the wilderness. However, in the nineteenth century, it became necessary for the colonies to develop economically and to become self-sufficient in land, capital, and labour. The latter two were the most important elements because “land and capital are both useless unless labour

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can be commanded.”39 However, if one posited, as Merivale and many of his contemporaries did, that the aboriginal peoples were, in fact, “savages,” then there was no skilled labour to be commanded. What flowed from this argument was that the colonial settlers and their governments could, and did, take over aboriginal territories and reserve lands at will and without the consent of the First Nations who owned the lands.40 Merivale’s views were critical in the development of the imperial government’s aboriginal “amalgamation” policy in British North America in the mid-nineteenth century and thereafter. His ideas have been carried on in the development of Canada’s aboriginal policies since then. However, when the colonies were granted self-government, things changed dramatically. By 1860, the responsibility for determining these issues had been transferred from the imperial government to the local colonial governments. Colonial control over aboriginal issues was reinforced several years later with the ratification of Confederation in 1867.41

The Implementation of the “Amalgamation” Policies The local colonial governments never consulted the aboriginal people about the implementation of the “amalgamation” policies, let alone discussed an implementation process with them. The local governments simply imposed the policies unilaterally and arbitrarily. While this policy was primarily designed with a hard edge to assimilate the aboriginal peoples, it also promised monies for European-style education and training and for potential economic initiatives. These included, for example, commercial agricultural opportunities. The British imperial government agreed to pay for the costs of implementing this policy – the monies were to come from the British Treasury – as initially designed by its representatives.42 That support, however, ended in 1860 at the same time as the English troops were withdrawn from the British North American colonies. Protection as part of the policy of “amalgamation” became a dead letter. Another less desirable component of the “amalgamation” policies was a conscious plan of removal, developed by Lieutenant Governor Sir Francis Bond Head in the mid-1830s.43 The idea was to remove and centralize aboriginal people into two geographical areas along the Great Lakes, primarily on Manitoulin Island and Walpole Island (later at many other places). Once the First Nations had been centralized, they could better be amalgamated and assimilated, according to the government view. It led, in

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fact, to dislocation and dispossession for many aboriginal peoples, as occurred after the Robinson Huron Treaty of 1850 was negotiated and signed, including even the taa, who were clearly not party to that treaty or any other. As a result, there came to be once again no place for fairness even with a treaty. The British imperial government fervently hoped that this strategy would, in the long term, reduce government expenditures. This was not the first time, nor the last, that a government would attempt to develop its aboriginal policy “on the cheap” to the detriment of its commitments to the First Nations.44 This was strenuously resisted by the First Nations.45 Initially, these “amalgamation” policies were not predicated on the taking of aboriginal monies or on the surrender of aboriginal reserve lands or territories, at least initially, in order to pay for the implementation of them. Rather, the monies were to come from British Treasury. However, when this financial support ended in 1860, it was necessary to begin selling aboriginal reserve lands (either with or without a surrender) as a way to pay for the costs – in effect, the aboriginal people were to pay for their own assimilation. This is well described and documented by the historian John S. Milloy, who has argued that the policy was intended to lead to the “creation of civilized, Christianized, and self-governing native communities seated securely on reserves protected by the British Imperial government.”46 In the end, when the British imperial government relinquished its powers over aboriginal matters through its granting of self-government to the white settlers, the ideal of protection was abandoned and forgotten by the settlers’ governments. Only the objective of assimilation remained.47 By the mid-nineteenth century, the British “civilization” policy was in tatters, relying as it did primarily on ad hoc support from the colonial governors. It became one of “amalgamation.” Yet the Indian Department, confronted by wholesale squatting and trespass by settlers on aboriginal lands, tried to continue its implementation by the forcible taking of “land surrenders.” This aggressive new approach was codified in the first Indian Act of 1857 and then institutionalized in the federal Indian Act of 1876 and its successors. Milloy has remarked that the import of this new approach was not lost on the aboriginal leadership, who rejected it and bluntly stated that it was an attempt “to break them to pieces.”48 One example of an enforced “land surrender” took place as early as 1830. On 12 April 1830, George Ironside Sr (c. 1761–1831),49 a Metis, then the Indian superintendent at Amherstburg, was informed by Chief Superintendent of Indian Affairs James Givins that the lieutenant governor

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had directed him to secure the immediate removal of the Chippewa Nations from the St Clair and the Anderdon (Huron) Reserves and to move the aboriginal peoples in them to the River aux Sable Reserve. George Ironside, Sr’s son was to figure largely in the taa’s land rights issues in the mid-nineteenth century and thereafter.) The government’s purpose of this “voluntary” removal was stated as being for their “civilization”: “It will be impossible to accomplish the object … while they continue on the St Clair and have frequent intercourse with the Traders on the opposite shore. You will persuade the chiefs to take up their residence near the Canada Company tract, and will assure them that they shall be placed on good land.”50 On 5 May 1830 Ironside Sr reported that he had used “every exertion to persuade” the chiefs to agree to their removal to River aux Sable, including in his argument that this would lead to their “future happiness and comfort.” However, Ironside Sr failed to gain their consent. They flatly refused to leave their homes.51 On 3 June 1830, Ironside Sr reported that he had failed again to obtain their consent, no matter what he said or promised to them. The Chippewa told him that they would accept the farming utensils “but would not accept the Houses and teacher.” Ironside Sr continued by stating, and overestimating the power of the chiefs: The principal Chief on the Island – by name – Peshegechegarshqum, seems to me to be the great promoter of these perverse views among the Indians. He has much influence, pretended and believed by them to possess supernatural powers and has as I am aware on former occasions opposed any changes in the [ways] or customs of the Indians, I am therefore inclined to think that he has been the principal guide of these rejecting these last offers … I also suspect that some of the settlers in the neighbourhood have been tampering with them. They no doubt see that now the Indians placed under Superintendence they would lose much of the profitable traffic they now carry on with them. [It was in his opinion that] … if the houses proposed were erected on the Island at the Chenail Ecarte without any further consultation with them I still believe that they would soon attract tenants – that many of the Indians who are merely led away by the influence of others, would soon avail themselves of the advantages … and that the view of these superior privileges and comfort would gradually bring over the others at least a great proportion of them.52

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Ironside Sr reported that a council was held at Amherstburg on 10 June 1830 by the chiefs of the Rivers St Clair and Chenail Ecarte Reserve, at which event he was given three signed petitions by the chiefs and told to give them to Lieutenant Governor Sir John Colborne. Ironside Sr continued that the chiefs “the Chippewas of Chenail Ecarte and St Clair Reserves should receive a title to the quantity of land specified in their petition or goods to the amount of 149/2/4 cy. [currency] as shall seem best to His Excellency.”53 However, this comment contradicts the 1835 speech of the Walpole Island First Nation hereditary chief to William Jones, then the Indian superintendent at Sarnia. The Indian Department continued in its attempts to secure a surrender of the land but was met with resistance. This was the framework of deception and corruption that George Ironside Jr entered into when he succeeded his Metis father in the Indian Department, following his father’s death in 1831. Ironside Jr would become the Indian Agent at Manitowaning and be the one responsible for administering the Robinson Treaties of 1850 up until his death in 1862. He was directly responsible for perpetrating the fraud that the Teme-Augama Anishnabai had been a signing party to the Robinson Huron Treaty of 1850 and that they had accepted monies under it. Stealing monies was not an unusual practice in the Indian Department at that time. Samuel Peters Jarvis, along with William Jones, James Winniett, John W. Keating, J.B. Clench, Solomon Chesley, and George Vardon,54 gained well-deserved and infamous reputations for doing so. These men were repeatedly under investigation by the Crown for their stealing of monies from aboriginal land sales. Jarvis, then Keating, then Clench, and then Vardon were each investigated by the government. As a result, as Rhonda Telford argues: they were all terminated together on June 30, 1845. William Jones and James Winniett were removed from their positions as Agents at the Sarnia and Six Nations Reserves respectively. Jarvis was removed for appropriating the funds of several First Nations and his office was abolished. The head of the Indian Department was now the Civil Secretary and the system of Indian Agents was replaced with that of Visiting Superintendents. However, long-time personnel in new or similar capacities continued to take advantage of their positions. George Vardon, a clerk and former Acting Civil Secretary was suspended and allowed to resign in 1851 after being caught stealing Aboriginal funds and S.Y. Chesley, the

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Indian Agent at St Regis and later Departmental accountant, had several conflicts of interest with his numerous leases of Aboriginal lands in the St Regis Reserve. J.B. Clench, Visiting Superintendent in the Western District would shortly be investigated and terminated in 1854 for defalcations of his own, rivalling even those of Jarvis. The Crown successfully sued his estate for the amount of monies stolen. Keating, unfortunately, was no exception.55 The Indian Department, then, failed to observe treaty promises to protect reserve lands and territories. Instead, it continued to use the Indian Act sell off aboriginal lands as “wild,” vacant, or unimproved lands, illegally taking part or all of reserve lands that were promised to First Nations at treaty negotiations and using them for other private or public purposes. There was a distinct illegal trade in reserve lands established in the Indian Department by the mid-nineteenth century. It was a practice that would be repeated in a rather dramatic fashion during the survey of the reservations that had been geographically excepted from the areas covered by the Robinson Huron Treaty in 1850. Needless to say, these corrupt practices negatively affected the subsequent negotiations between the Teme-Augama Anishnabai and the provincial government, which had taken over the business of land redistribution at Confederation, if not before. In spite of this imperial policy framework and the inroads that it was ever so gradually making, it faced considerable resistance on Turtle Island. Fortunately warned by prophecies, First Nations knew what was coming, adopted many strategies to resist and initiated defensive strategies to counteract it. The aboriginal objectives were, as always, to maintain their economic independence and political sovereignty. This was based for the most part on indigenous knowledge – a detailed understanding of Mother Earth and how she operated on a seasonal basis. Thus there was diversity and bounty for each First Nation within its own territory. For example at Bawating (“the place of the rapids” – present-day Sault Ste Marie), the Anishinabe harvested an abundance of resources: … beaver and migratory wildfowl constituted important food sources. The Native people grew corn, but harvested it green, trapped and snared rabbits and smaller fur-bearing animals, collected berries, and may have gathered some wild rice, although the latter was not an important resource in this region. Virginia deer, though present in the Upper Peninsula of Michigan, were late migrants to the Canadian shore of the St

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Mary’s channel, arriving only after the disappearance of caribou in the late nineteenth century, and so likely did not constitute important prey for Ojibwa hunters north of Lakes Huron and Superior. Each segment of the Ojibwa economic cycle provided a surplus to tide a family group over part of the next phase. Meant and fish could be dried or smoked, and berries, corn, and maple sugar preserved.56 The glue that linked all of these resources together was trade. (And the Metis were prominent independent traders as well as facilitators, interpreters, translators, diplomats, and negotiators on their own behalf and those of their communities. They were international people.) Aboriginal trading patterns among First Nation’s territories have existed for thousands of years. They exponentially increase the value of the products traded across the meeting grounds. In the 1790s John Tanner (c. 1780–1846), the Falcon, noticed how sophisticated this trade was since it also included indigenous knowledge – in his A Narrative of the Captivity and Adventures of John Tanner57 – of life among the Anishinabe and the Cree in the Old Northwest.58 Integral to a First Nation’s territory was a balance of water and land including places of fire-meeting grounds and sacred places that could mediate between water and land. These special places were islands.59 Along the shores of Lakes Huron and Superior were located thousands of islands, some of which remain sacred places to this day. Manitoulin Island is perhaps the most well-known, but others are of equal significance. Bear Island, although inland from the Great Lakes, was also significant. These areas were also of strategic significance. No First Nation could countenance the taking of any part of its territory: All group territories had an offshore island which was used for burial and ceremonial occasions usually a high bluff as a lookout station, numerous entrances into the interior for dispersal of population, and sufficient diversity of inland resources to allow a group to withstand a siege of its coast. Ojibwa thinking on these matters was strategically oriented to a high degree and exhibited marked attention to geographical and topographical detail.60 It was for this reason that water and islands were non-negotiable in the treaty-making process, including the Robinson Treaties. The primary British imperial, and local, reasons for the taking of the

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Robinson Treaties included the British imperial policies of “amalgamation” and the white settler’s perspective of these lands and waters as “wilderness” and thus also a white resource frontier in which the natural resources were there to be exploited to produce material wealth for the colonial economy. The government objective was to remove aboriginal people from their homelands and treaty lands and to place them on reserves. The two primary components were mining and white settlement. These interests collided on the aboriginal homelands when the British imperial principle of protection of aboriginal people was eroded by the immediate exigency of the interests of the white settlement and resource frontier.61 In 1861, eleven years after the Robinson Treaties were taken, Merivale described the process in the second edition of his Lectures, after having viewed the results first hand, as permanent undersecretary at the Colonial Office: The subject, in short, is one which has been dealt with by perpetual compromises between principle and immediate exigency. Such compromises are incidental to constitutional government. We are accustomed to them: there is something in them congenial to our national character, as well as accommodated to our institutions; and on the whole, we may reasonably doubt whether the world is not better managed by means of them than through the severe application of principles. But, unfortunately, in the special subject before us, the uncertainty created by such compromises is a greater evil than errors of principle.62 Merivale’s description of the vacillation of Canada’s aboriginal policy between principle and immediate exigency is a significant observation about the failure of the British imperial and then Canada’s aboriginal policies thereafter.63 The dynamic of the greed of the resource frontier, especially regarding the mineral wealth in what became northern Ontario, led directly to the making of the Robinson Treaties of 1850. The taa became caught up in these white problems of policy and the processes of settlement and resource development during the copper mining boom of the 1840s on the north shores of Lakes Huron and Superior. Gradually, in the late nineteenth century, there became no place for fairness for the taa.

3

Stories of Teme-Augama Anishnabai Land Rights and the Robinson Huron Treaty of 1850 and Its Aftermath

The relationship between the taa – which includes members of the Temagami First Nation, Metis, as well as individuals who are regarded by the federal government as “non-status Indians” but who are affiliated with the Temagami First Nation – and the Ontario Government has been characterized by the government’s stubborn refusal to recognize the taa and their ancestral homeland, N’Daki Menan. For more than 159 years, Ontario has refused to acknowledge the taa’s title and rights to their territory. In 1970, after more than forty years of fruitless negotiations, the government declared Bear Island, less than one square mile in size, as taa reserve land. To add insult to injury, the government required that the taa purchase this land using their own monies. If they refused to do so, the taa faced eviction as squatters. In 1973, the taa responded by placing land cautions on 110 townships in the Temagami area as a way to reclaim the four thousand square miles of N’Daki Menan. Cautions were usually used for competing mining claims, but for some reason (unknown even to himself) the regional registrar of titles accepted the registration of the taa cautions. A legal caution prevents first registration of titles by the Crown and thereby effectively puts a cloud on the title of the lands preventing or inhibiting economic development such as mining and any new land sales. This area, situated inland from the main aboriginal “highways” along the Great Lakes and connecting waterways, was not well known to European visitors in the mid-nineteenth century and was relatively isolated from encounters with the white settlers and their activities.1 Except for some logging activities beginning in

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the 1860s, N’Daki Menan was almost untouched by large-scale economic development until the early 1900s.2 The laying of cautions in 1973 was followed by more than twenty years of litigation as the provincial government tried to block this action and take back the land. This came to be known as the Bear Island case, which was only to be decided by a Supreme Court of Canada (scc) decision in 1991. The taa cautions did stop economic development in the Temagami area – until they were lifted by a court action initiated by the ndp Government of Bob Rae in 1993 and then finished off by the Harris Government early in 1996.3 Although the legalities of the Bear Island case were concluded in 1991, the taa’s title and land rights to the four thousand square miles of N’Daki Menan have never been resolved. Settlement negotiations on these questions are still in progress with a possibility of a final agreement being ratified in 2009. Although these rights are still under negotiation and debate, the historical facts are clear and are tied to the Robinson Huron Treaty. The aboriginal reserves noted in the “Schedule of Reservations” in the Robinson Huron Treaty document were reserves taken from the area covered by the treaty rather than being created by the treaty and thus are unceded aboriginal title lands. The taa territory was not on this “Schedule” and the taa were not covered by the treaty. They are part of the “Indian Territory”; therefore their lands continue to be unceded lands and should be recognized as such. The taa were not represented at the Robinson Huron Treaty, which has always been consistent with the taa oral traditions, nor can it be established that they were even present at the signing of the treaty or when payments were first made. Lastly, they were not represented at the treaty negotiations of 1850 nor in the events that followed at Manitowaning on Manitoulin Island.4 The Bear Island case rested, as defined by the Canadian justice system, on the premise of the taa presence in their homeland both prior to and after the issuance of the Royal Proclamation of 1763. Since 1991, there have been negotiations on the taa land rights issue. This was acknowledged both by the Supreme Court of Canada and, at least by implication, by the Ontario Government through the Treaty of Co-Existence that was signed between the provincial government and the taa in 1990. This treaty was acknowledged and agreed upon in principle by the Teme-Augama Anishnabai and the province in the bilateral memorandum of understanding signed on Earth Day in April 1990.

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Yet there has been no statement of respect or direct declaration by Ontario of the existence of the taa title and land rights. The basis for the ongoing negotiations is the scc judgement, which states that, although the taa was a party to the adhesion to the Robinson Huron Treaty (which it signed in the late nineteenth century), none of the treaty rights were provided to the taa in 1850, or thereafter, except for some annuity payments made to individuals, beginning in 1883 and continuing until 1973.5 Nor has the federal government recognized their rights. In fact, the federal government continues to deny the history of the taa and has not recognized their rights in the litigation. This is ironic since the federal government inherited the treaty-making process as well as the responsibilities of the British imperial government as a trustee and alleged protector of the First Nations. By the late 1840s, the taa as a community was known to George Ironside Jr, the superintendent of Indian Affairs at Manitowaning.6 Unbeknownst to the taa, they had come to be known as the Temagami Band. By organizing First Nations into “bands,” officials gave First Nations a “white” identity and category. The word has its meaning and derivation from those aboriginal families who had been involved in the fur trade and who came to trade at the Hudson Bay Company’s posts. The imperial and provincial governments came to know these families as “trading post bands” and identified them according to the name of the post. The taa were called the “Temagami Band” after the name of the Hudson Bay Company’s post of that name on Bear Island.7 The local government officials, Thomas Gummersal Anderson and then Ironside Jr, recognized that the taa were an organized and a separate group of families by the time of the Robinson Huron Treaty.8 Members of the taa would travel from their homeland to Manitoulin Island in late summer to pick up their presents, ammunition, and provisions as well as to trade. After the presents were distributed, official government lists were prepared that named the “Indians” who had been given presents. The taa were not on the present list for 1846, but they did come in August 1850, before the treaty negotiations. After the treaty was entered into by the British imperial crown at Sault Ste Marie, the taa stopped coming to Manitoulin Island to receive their presents.9 It appears that it was not worthwhile for them to come because they were away hunting. With the exception of Ironside Jr and Anderson, government officials really did not know much about the Teme-Augama Anishnabai, much less

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their history and their oral traditions. The Vidal-Anderson Report of 1849 noted the presence of Lake Temagami in the interior but did not mention the taa. The Indian Department officials did not venture into the interior north of the Great Lakes. The people of Long Lake boycotted the Robinson Superior Treaty for fear of prosecution. Instead, the Indian Department relied on the knowledge of the peoples along the shores of Lakes Huron and Superior about those living inland. As a result, the taa had few dealings with the British imperial or the local colonial governments until the early 1880s.10 Temagami came to the attention of the government when the colony of Upper Canada wished to acquire aboriginal lands as cheaply as possible. This became local government policy by 1798.11 It established a double standard for the payment of aboriginal lands – one price at less than fair value for aboriginal people and another – at fair market value for nonaboriginal people. By the 1840s, the local government’s self-interest was focused on the high mineral potential of the area (much further south near Sault Ste Marie and environs), especially the large copper deposits that had been discovered there.12 There were only five or six families living in the taa community at this time. In spite of being recognized as a separate group, officials considered them to be inland “stragglers” and of no importance. The government would continue to treat them in the same fashion for the next one hundred years.13

Robinson Huron Treaty of 1850 In 1850, there was no evidence to suggest that the taa were aware that a treaty was to be negotiated at Garden River, near Sault Ste Marie. They were not invited to attend or even informed about the treaty negotiations, although others were given such notice. James Morrison, a historian and an expert witness in the Temagami court case, has observed in his study of the Robinson Huron Treaty (written for the Royal Commission on Aboriginal Peoples in 1996) that absentees had been noted. Absentees. With respect to the bands on Lake Huron, Messrs Vidal and Anderson had reported the existence in 1849 of an inland group “about Green Lake [not the taa].” Like the Long Lake band north of Lake Superior, their territories appear to have straddled the height of land.14 Representatives of this band, however, did not participate in the treaty

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– nor is there evidence that they were invited. The absentees also included the Teme-Augama Anishnabai, or Temagami band, from north of Lake Nipissing. Almost fifty years later, Chief Dokis – one of the treaty signatories – explained to Ontario government representatives that Temagami chief Nebenegwune did not go to Sault Ste Marie because he hadn’t been invited.15 This would be consistent with a late decision by Dokis and other French River and Lake Nipissing chiefs to attend the treaty themselves.16 This interpretation of the evidence is also consistent with the taa oral tradition that they did not attend the negotiations, sign, or otherwise participate in the making of the Robinson Huron Treaty. In either scenario, it is clear that the taa were not at the treaty negotiations and its signing at Garden River nor were they at Manitowaning to receive their payments. Perhaps, even if they did know about the treaty, like the Pic River First Nation in the Robinson Superior Treaty area, the taa feared a trap and refused to attend, thereby deliberately choosing not to be a party to it.17 This fear was not imaginary. Just a year earlier, in December 1849, the imperial government had sent the Royal Canadian Rifles from Toronto to Sault Ste Marie to quell the Mica Bay resistance organized to stop mining companies from moving onto unceded aboriginal lands. The government blamed the resistance on the “rascally whites” who were led by the Métis Allan Macdonell,18 a former law partner of Sir Allan Napier MacNab,19 and a mining entrepreneur who was assisting the Ojibwa and the Métis in getting their land back. Chiefs Nebenagoching and Shinguacouse were later arrested and taken to Montreal, where they were put into jail to await trial.20 They were released early in 1850 after the imperial government decided to appoint William Benjamin Robinson as its treaty negotiator.21 The provincial government’s intention was to get a “surrender” of all the valuable mining areas on the north shores of Lakes Huron and Superior from the First Nations. On 11 January 1850, Superintendent General of Indian Affairs Robert Bruce instructed William Benjamin Robinson that the government “will speedily take measures to adjust the claims of the Indians for compensation on their renouncing all claims to the occupation of all lands in the vicinity of Lakes Huron and Superior,” part of which lands “have been occupied for mining purposes.” Subsequently, the governor general of the Canadas, Lord Elgin, authorized Robinson “on the part of the Government to nego[t]iate with the several Tribes for the adjustment

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of their claims to the lands in the vicinity of Lakes Superior and Huron or of such portions of them as may be required for mining purposes.”22 Robinson made two trips to accomplish his instructions. The first was to Garden River in the spring of 1850. But he failed to meet with all of the chiefs or headmen who were away at that time on their seasonal rounds; at that time of the year they were hunting. He certainly did not meet with Peter Nabonaigonai, then the headman of the taa. Six of the chiefs he met signed an agreement to meet again with him in August–September of that year. The taa did not sign the agreement to meet with Robinson later that summer.23 Robinson and other prominent representatives of the Crown met with the chiefs of Lakes Huron and Superior at a Council Fire at Garden River in late August – early September as planned. Providing a commanding British imperial presence, Elgin and Bruce were also present at the beginning of the treaty negotiations. Before the negotiations began, Robinson had told Lord Elgin of his “intentions as to the Treaty, which he [Lord Elgin] approved of.” In addition, Elgin, on 1 September, told Chief Peau de Chat of Fort William that he had “left full power” of the British imperial Crown with Robinson to negotiate a treaty (note: “a” treaty, meaning one treaty and not two treaties) in order “to settle this matter & he & the other chiefs were satisfied.” On 3 September, Elgin again met with the First Nations at Garden River and Robinson recorded in his diary that “they had all perfect confidence in ‘Mr. Robinson’ and would settle their difference with him.” Lord Elgin departed and left Robinson to negotiate the treaties, conveying his full authority to Robinson to enter negotiations and sign the treaties on behalf of Queen Victoria.24 It should be noted that it was the initial government intention to negotiate only one treaty for Lakes Huron and Superior bands, but the resistance of the First Nations led to two treaties, namely, the Robinson Superior Treaty and the Robinson Huron Treaty. Thus, it was that Robinson entered negotiations for the Robinson Superior Treaty, signed on 7 September, and the Robinson Huron Treaty, signed two days later on 9 September. On the 7th, Robinson told Chief Shinguacouse, one of the Lake Huron chiefs from Garden River, that “the majority of the Chiefs were in favour of my proposition … that those who choosed [chose] might sign it. I wd [would] not press anyone to sign. Those who signed wd [would] get the money for their tribes & those who did not sign wd [would] get none.” Since the taa were not present, they could not

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have signed the Robinson Huron Treaty. Nor did anyone sign on their behalf. Neither did they receive the cash payments given out by Robinson at Garden River. The treaties were “ratified and confirmed” by an order-incouncil of 29 November 1850. Since these treaties were controversial, especially after the Mica Bay resistance and the imprisonment of two prominent aboriginal leaders by the imperial government, the government was under close scrutiny for how it treated “Indians” and had to take great care with the treaties. The signing was a media event. Journalists from as far away as New York came to the Sault and Garden River to witness the proceedings, publishing their accounts in the major North American newspapers.25 The Robinson Huron Treaty was written in Victorian English legalese. Its contents were contrary to what the First Nations understood they were signing, which was a treaty of coexistence flowing from the Covenant Chain and the Treaty of Niagara. Instead, the Robinson Huron Treaty stated: That for, and in consideration of the sum of two thousand pounds of good and lawful money of Upper Canada, to them in hand paid … the said Chiefs and principal men, on behalf of their respective Tribes or Bands, do hereby fully, freely, and voluntarily surrender, cede, grant and convey unto Her Majesty, her heirs and successors for ever, all their right, title, and interest to, and in the whole of, the territory above described … The last paragraph of the Treaty stated that “in consequence of the Indians inhabiting French River and Lake Nipissing having become parties to this treaty, the further sum of one hundred and sixty pounds Provincial Currency shall be paid in addition to the two thousand pounds above mentioned.”26 The “Bands” inhabiting the French River and Lake Nipissing included those who were represented by the Tagawenini, Maisquozo, Dokis, and Shaboishick. The taa were not identified as being represented by one or more of these “Bands.”27 Yet, in the vouchers distributed to the “Bands” for their land, government officials identified the taa in voucher number 11, which contained the name “Nebinagonai” and showed that they had received an initial cash payment of $25. This amount was identical to the amount given to the other chiefs who signed the treaty. Apparently, it was paid at Manitowaning on Manitoulin Island, four days after the treaty was signed. But in actuality the monies were not paid. This paper, stating that

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monies were paid, was a forgery. Seven years after the treaty was entered into, Ironside Jr, still the Indian superintendent at Manitowaning and who had been responsible for the payments, admitted that the taa had not been paid.28 In actual fact, the taa had never come to receive their presents or to trade in September 1850. At the same time, it is also clear that a taa reserve was not listed on the “Schedule of Reservations,” which were excepted from the area covered by the treaty. The next five years of documentation shows no evidence that specifically links the taa to the reserves at Lake Nipissing or at Wanapitei, which are reserves 10 and 11, respectively, in that schedule. Once a party to the treaty, the signatories were to have been given an initial cash payment followed by a specified annuity payment. They would retain their unceded aboriginal title and land rights, their reserves, as well as their hunting (and by implication, the commercial activity of trapping and trading) and fishing rights within the area covered by the treaty. The taa received none of these rights. With a few exceptions noted above, these rights are still outstanding to this day.29 After the treaty was signed, Ironside Jr was instructed by Robinson to prepare a census and complete the government records of who was entitled to share in the treaty as well as to prepare a complete census of all those aboriginal people who had participated. This fact is referred to by Robinson in his official report to government and dated 24 September 1850. Robinson stated that he took a “census of the Lake Huron Indians at the time they were receiving their presents at Manitoulin.”30 But, by his own admission in 1857, Ironside Jr’s census was incomplete. The taa were not on that census, since they had not been at the treaty negotiations nor did they receive the first payments under it. This incompleteness is likely the reason why the census was not attached to Robinson’s 1850 report. Furthermore, the census was never completed by Ironside Jr prior to his death in 1863 nor by anyone else in the years that followed. By the early 1870s, it was clear that no complete government census had ever existed for the aboriginal peoples living on the north shore of Lakes Huron and Superior.31 Although there is an explanation why the taa never came to Manitowaning, their names subsequently appeared on the lists and vouchers prepared by Ironside Jr and showed that the taa had been paid by him.32 Seven years after the treaty was signed, Ironside Jr was still the Indian superintendent at Manitowaning and was responsible for the annual payments. In a letter dated 2 February 1857 to his superior, Richard T. Pennefather, the superintendent of Indian Affairs in Toronto, he explains what had happened at Manitowaning in September 1850:

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I would beg leave to state to you that having been informed by the Chief that many of the people justly entitled to share in the annuities arising from the sale of their Lands were not included in the List taken of the Indians at the time of the [Robinson Huron] Treaty in 1850 and that great complaints were being made by the parties so left out. I in consequence, communicated the circumstances to Colonel Bruce and his reply was that the List could not then, be altered but that after the fourth years’ payment a new one might be made out when the matter complained of could be remedied. This recommendation should have been carried into effect in 1856, but notwithstanding ample notice of it had been given to the Indians (for I had spoken to them frequently on this subject) we failed in completing this census, only however, in so far as two of the Bands [the taa being one; the Green Lake being the other] are concerned the Chiefs of which not having attended with the rest to give in the names of those of their respective Bands to be added to the new List. It was in order to guard against anything like fraud on the part of the representatives of the different bands in giving in the names, that I deemed it advisable for all the Chiefs interested in the Annuity to be present as checks on each other on the renewal of the List. The meeting of the Chiefs took place at Manitowaning shortly after the issuing of Presents [likely in September 1850],33 and it was then agreed upon that a reasonable time should be allowed for the absent parties [the taa and the “Green Lake Indians”] who reside about and beyond Lake Nipissing to come and supply the information required of them with a view to the completing of the List. And having therefore sent to the two Chiefs [not identified in the original document, eg., taa and Green Lake] before mentioned to repair to Manitowaning as soon as possible, I waited for them until the actual time for parties from that part of the Country coming in for the purposes of Trade. As, however, they did not make their appearance at the time expected it was considered advisable to wait no longer for them and I then proceeded at once, to make up the List preparatory to giving out the money. Entering the two unrepresented Bands [as identified] above without adding to their numbers. I should mention here that the Chiefs of the Sault & Garden River Indians did not attend the meeting,34 as, in the month of June last [1856], I took their numbers, having come up there for that express purpose.

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I thought it right to make the foregoing Statement that you may know the principal cause of the delay in reference to the payments to the Indians of the money brought up by Mr. Turner. Six Bands of the Lake Huron Indians have recd [received] their money and I am now paying [annuities] the Indians in this quarter.35 The letter concerns two events. The first is the Robinson Huron Treaty, taken at Sault Ste Marie, and the events immediately thereafter at Manitowaning. The second is the difficulties and the grievances of the First Nations in the mid-1850s over the payment of their annuities since the signing of the treaty. The Robinson Huron Treaty links the two events. But perhaps to salve his guilty conscience or perhaps because his past was catching up to him,36 Ironside Jr had to tell the story about what had happened. Ironside Jr was trying to address the issues for which he was partly responsible seven years previously.37 Ironside Jr had written the taa name “Nebenagonai,” followed by “(Head man),” on the 1850 paylist of “Chief Tahgaiwenene, Dokis and Nebenaigonai’s Band as given at the Treaty in 1850.” This list included the names of twenty-four individuals. This was done in the expectation, so he later stated, that the taa would come in to trade at Manitowaning. But the taa did not come; they were away hunting early in the fall, and Ironside Jr did not change the written record. He left their names on the government documents as if they had come to trade and had received their annuity payments, and he pocketed the proceeds. In debt as a result of his unwise speculation in the copper boom of the late 1840s on the Detroit Stock Exchange, Ironside Jr used the money to pay off some of his debts (he also sold off some of his properties). He fabricated the taa participation in the treaty, betraying them, and it led directly, based on this falsehood, to the government’s official history of the treaty.38 Subsequently, Ironside’s writings on the treaty payments became government propaganda that contradicted, and then overwhelmed, the taa’s oral tradition about the treaty. It led directly to their loss of the court case when the scc accepted this fabrication as historical fact in its 1991 judgement. Ironside and Robinson were clearly papering over and tidying up after the treaty was made, even though the taa had not been present at the time.39 My interpretation of the written record is entirely consistent with and also complements the taa oral tradition of the Robinson Huron Treaty.40 In 1859, Pennefather also discovered that Ironside Jr had not submitted the proper vouchers for the annuity payments for 1858 and 1859 and had not accounted for large payments made in cash to the First Nations

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on Lake Huron.41 But nothing was done at that time, or later, in 1996 when the Temagami hired me as an historical consultant and I conducted research that led to this discovery of the written records in the Ironside papers in the Detroit Public Library five years after the litigation had ended in the Supreme Court of Canada. In 1862, Ironside Jr came under fire for his role in the negotiation, with William McDougall and William Spragge, of the Manitoulin Island Treaty of 1862. By the early 1860s, Ironside had fallen into disfavour with First Nations on the North shore of Georgian Bay.42 Thereafter, Ironside became a focal point, among others, for increased aboriginal resistance on Manitoulin Island over annuities and land and fisheries issues. Douglas Leighton, a historian of the Indian Department, has observed that these incidents affected Ironside’s health and “he died suddenly on 14 July 1863, probably of a heart attack.”43 Local indigenous people seem to have known what Ironside was doing.44 But, like his father before him, Ironside Jr controlled the written treaty history of the taa through his pen and through his status as a Metis and power as a government official. Ironside Jr was at least partly responsible for more than 159 years of racism and persecution of the taa by government officials and the Canadian justice system. The objective was the same as British imperial and later Canadian indigenous policy, to explain away and then systematically eliminate what one could or did not wish to understand. The result was to make invisible what one did not want to see; to render invisible what was starkly visible in the end. From the mid-1850s to the late 1870s there is a lacuna of written documentation in Indian Affairs records on the relations between the Crown and the taa. In the late nineteenth century, some aboriginal people may have come to Manitowaning and collected monies from government officials. However, the taa, according to their oral traditions, did not receive any money from Ironside.45 By the late 1800s, the federal Department of Indian Affairs did not know whether the taa had participated in the treaty or not. The TemeAugama Anishnabai had not been given a reserve, and it appeared as though they had been forgotten. Any other information the government may have had about the taa or their territory prior to the 1880s was destroyed when the Indian agent’s house and all of the local records within it burned to the ground. (It was the taa oral tradition that did not die and that continued to serve as a witness to these historical events.)46 In 1877, the taa took the initiative to rectify these errors. Their

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spokesman discussed with local Indian Agent Charles Skene47 the matter of their title to their lands. He asked why the taa, unlike their neighbours, had no treaty and no reserve under the Robinson Huron Treaty of 1850. The spokesman informed Skene that the taa had never signed a treaty and had never received any treaty benefits, including the reaffirmation of their hunting, fishing, and trapping rights, annuity payments, or a reserve. After determining the truth of these statements, Skene wrote to the Department of Indian Affairs in Ottawa. Sometime later he was instructed to discuss the possibility of a treaty with the taa and to prepare a map showing the extent of their lands. In a subsequent letter to Ottawa, Skene wrote and asked that some party be sent to meet the Band in Council at lake Temogaming, where the Band is located. That the said party be empowered to come to terms with the Band to offer a certain sum down (say $15000 or $20000). Part of this, say one third, to be paid at once to the Band. The other part, two thirds, to be placed at interest for them … [I]n addition … the Band [is] to be paid an Annuity on the same Amount as the Bands named in the Robinson Huron Treaty, also that a Reserve of _________ acres be marked out for the Band, and the Band [is] to have the privilege of selecting the site of the Reserve. However, the federal Department of Indian Affairs did not respond to Skene’s suggestion. At the time, the superintendent general of Indian Affairs, Sir John A. Macdonald, was also the prime minister of Canada.48 Macdonald told Skene to let the matter “rest” with him (apparently, until Macdonald returned from Europe and recuperated from one of his celebrated drinking bouts). Skene, in the interim, asked Chief Tonene what his “conditions” would be for the prospective treaty. Based on their oral tradition, Chief Tonene wrote to Skene: We hardly have any idea of such bargains, but what I would say is this. Would [you] be so kind as to let us have some money, for instance Four dollars per head of living Souls for our hunting Grounds – maybe we might surrender it – of course, not to receive that money only one year but every year as long as you dispose of our Hunting Grounds. We would like to receive that same Amount every year for the Surrender of our Land. But still besides we would like to have a Reserve for ourselves.49

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Skene recommended to Ottawa that the taa be enrolled in the Robinson Huron Treaty. This process was unilateral and completed without any consultation with the taa. In anticipation of their having entered into a treaty and receiving all the benefits of it, they began to receive annuities in 1883. (It is important to note that back payments for lost annuities were never paid for the period from 1850 to 1883. Today, with interest, an estimate of the value of these payments, with compound interest, would amount to well over $25 million.)50 In the meantime, Lawrence Vankoughnet, the penny-pinching deputy superintendent general of Indian Affairs, advised Macdonald that the taa already resided “within the limits of the Robinson Treaty; and inasmuch as they have declared their willingness to come into the Treaty on being included in the annuity paylists this would appear to be the easiest way of settling the matter.” The department, as always, took the “easiest way” out. It reasoned that since the taa resided within the area covered by the treaty, no treaty was required to be entered with them.51 This was a circular argument flawed by disinformation, specious reasoning, and fabricated written evidence. Once again, the taa lost control of their land rights. It was not until 1885 that the federal government sent a survey party to the Temagami area. The taa selected the land and waters at the south end of Lake Temagami, reputed to be about one hundred square miles. But the reserve was never surveyed and a survey plan never prepared, although the surveyors sketched the area and sent it to Ottawa. After promising a reserve to the taa, Ottawa contacted the provincial government. Ottawa thought that the province held these lands, subject to the outstanding aboriginal title and rights, under section 109 of the British North America Act. Ontario would have to consent to the request to set aside one hundred square miles for a reserve – an area filled with large stands of ancient red and white pine as well as significant mineral deposits. Ottawa had not consulted with provincial officials to determine whether the lands were available to become reserve lands before sending the federal survey party to determine the location of lands for the taa reserve.52 Steadfastly and intractably, the provincial government refused to give over the rights to the land. Queen’s Park anticipated receiving royalties from logging companies for the cutting of the valuable red and white pine. It was in the 1880s that the taa began to be driven off their ancestral lands both by governments and commercial interests. First came the timber

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industry, which, through its powerful lobbying of the province, led to the denial of the proposed reserve. By the early twentieth century, the one hundred square miles of richness and bounty of most of the taa homeland had been virtually logged over into a wasteland.53 When tourism began in the early twentieth century, the effect was felt on the taa primarily through the infrastructure that came with it, especially the railway and the roads. On 9 December 1913, two deputy ministers of the Tory federal and provincial governments met in Ottawa. Their intention was to “resolve all outstanding matters” on aboriginal issues between the two governments. Temagami, as always, was on their list. Ontario Deputy Minister of Lands, Forests and Mines Aubrey White was an Irish immigrant who subsequently became the commissioner of Crown Lands (the deputy minister of Crown Lands in the late nineteenth and early twentieth centuries), the very person who had refused to grant the taa a reserve more than twenty-five years before in the 1880s and 1890s.54 For the federal government, the representative was Deputy Superintendent General of Indian Affairs Duncan Campbell Scott, who had just been promoted to that position earlier that year by the new Tory Government in Ottawa. A well-known Canadian poet and writer as well as a Metis person himself,55 Scott had become a career bureaucrat and by 1913 had been in the government for thirty-five years. To say the very least, he had a chequered history on aboriginal issues.56 At the meeting, Scott acceded to White’s initiative to let “Temagami … stand as it is.”57 In spite of the meeting’s purpose and despite the actions taken on the other issues, nothing was done to resolve the Temagami issue. There matters have remained to this day. In the meantime, the taa waterways – Lake Temagami and interconnecting rivers and lakes – were being taken over by non-aboriginal tourists and entrepreneurs, especially after the First World War. By then, wealthy Americans and Southern Ontarians had bought cottages and taken up the related activities of hunting and fishing. As the “Deep Water Peoples’” lands were despoiled and sold off, they were herded and pushed back onto part of Bear Island.58 In the 1920s, the province began charging the taa community rent for living on their own land. During the Great Depression of the 1930s, they were forced by Ontario to either buy their own land on Bear Island or face eviction for “squatting” on “Crown” lands. This persecution continued even after Bear Island became federal government lands in 1943.59 Negotiations began in the 1930s, and more than a decade later in the 1940s, an agreement was reached that Bear Island would become the taa

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reserve. To make this happen, the federal government, using aboriginal monies from the general budget (rather than the trust funds monies of the taa) of the Indian Affairs Branch of the Department of Mines and Resources, was forced to buy most of Bear Island from Ontario at fair market value, which was set by the province at $3,000 or about $5 an acre. Given that the actual fair market value was closer to $1 an acre for land in Northern Ontario at that time, this was an exorbitant sum to pay for one’s own land.60 But the discussions on establishing Bear Island as a reserve foundered when the province insisted that the subsurface rights to Bear Island (presumably the province was aware that the entire Temagami area was of high mineral potential) not be included in any transfer of the lands. It was not until 1970, after another quarter of a century had passed,61 that Bear Island would finally be transferred to Ottawa to become reserve land.62 At this point, local provincial officials tried to remove the taa from their rest of their island. To facilitate this, the taa, including Philip Potts (father of former Chief Gary Potts63), were charged for illegally trapping outside of their registered traplines, which had been imposed in the early 1950s. Provincial regulations were seen to be paramount and were overriding aboriginal title and rights. (I discuss this more fully in the next chapter.) In 1973, the taa filed their cautions under the Ontario Land Titles Act for the approximately four thousand square miles of N’Daki Menan. This action effectively froze non-aboriginal economic development within the land claim area for twenty-five years, and in 1978 the litigation process began.64 The Ontario Tory Government wondered what to do. An initial thought was to try to buy off the taa with a $1 million offer that came without a land component. The taa were never made aware of this possibility. Queen’s Park approached Ottawa and held some bilateral and secret discussions in 1974–75, but no formal offer was ever made to the taa. It would not have been successful because land was not on the table. Instead, Tory politicians met in Cabinet at Queen’s Park in autumn 1976. Consistent with their previous actions over the past nine decades, they decided to go on the offensive. The new Ministry of Natural Resources (created in 1972) to replace the Department of Lands and Forests, which had tried to chase the taa of Bear Island for “squatting”) advised the Tory cabinet that, based on the (fabricated) written records left by Ironside Jr, the best course of action would be to go to court.65 It is curious that this decision was made without reference to any historical or other research. Subsequently, in 1978, after commenc-

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ing a legal action, the province hired, on contract, Len Ugarenko, an ma student at York University who was then conducting research on the “Beaver Indians” under the supervision of Professors Skip Ray and Conrad Heidenreich. Ugarenko was assigned to the Temagami case in that year and his research on Temagami and the Robinson Huron Treaty was that used by the province in the discoveries and at trial. After 1978 the Ontario Government proceeded to sue the taa for their own lands and attempt to secure a declaration from the courts that would prove once and for all that these lands were Crown lands.66 And so the issue ended up in the courts, and there was no place left for fairness.

4

“Don’t fix it”: Reflections on Ontario Aboriginal Policy and Processes, 1976–1984

Ontario’s cabinet decision in 1976 to litigate the Teme-Augama Anishnabai’s aboriginal title claim to four thousand square miles in and around Lake Temagami put Ontario into the “land claims” business for the very first time. To accomplish its objective, the Ontario Government established the Office of Indian Land Claims on 1 March 1976 as part of the Ontario Ministry of Natural Resources, headquartered, in the “main office,” the Whitney Block at Queen’s Park next to the Ontario legislature. This action was clearly ambiguous if the purpose was to actually resolve and to reach settlement agreements on aboriginal land and treaty issues. As we have already seen, on the basis of the history of between the government and the Teme-Augama Anishnabai, the province’s sole aim was to eliminate such claims and protect Ontario Crown lands through litigation and legal precedents. It was believed by non-indigenous governments that such claims would cease to exist if they were deemed by the Canadian courts to have no basis in law. There was certainly no place for fairness in this approach. Two other things flowed from this 1976 turning point: first, the Bear Island case initiated the government’s long and expensive journey into litigation, which would last twenty years (up to 1996); second, the province, for the first time, began developing a policy and a process for addressing First Nations’ (but not the Metis) land rights through either negotiation or litigation. Once the doors were opened, more than thirty land claims were put forward for cabinet direction on settlement negotiations. In addition to the litigation of the taa land rights that took off in 1976, the other significant claim was at Manitoulin Island, which involved issues regarding unsold surrendered reserve lands; these negotiations began in 1988, and a

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settlement occurred in 1990. The first two formal settlement offers to the taa were made in 1986 and in 1989, respectively. Then, on 23 April 1990, a treaty of coexistence was signed with the taa that led to a third settlement offer in 1993. This third offer was rejected by the taa in 1995, which led to a settlement agreement in principle that was reached on 18 December 2002. It is expected that a final agreement will be ratified by the taa perhaps in late 2009 or in 2010. It has been a journey of more than thirty-five years. As we will see in this chapter, not only did the Bear Island case entail lengthy litigation but it also had far-reaching consequences for the provincial government. It was to become a zero-sum game for Ontario. The setting up of the Office of Indian Land Claims allowed the Ontario Tory Government to establish a bureaucratic mechanism that would function effectively as a “post office” to assist in answering the public’s mail and to deflect criticism for non-action on substantive issues such as aboriginal title, unsold reserve lands, treaty rights, aboriginal governance, and economic development initiatives. This politically successful form of delay is often used when a government wishes not to address an issue, taking on instead an attitude of “If the wheel ain’t broke, don’t try to fix it.”1 This attitude was, at least in part, a reflection of the Tories’ long political run in governing Ontario. During the 1980s, there was a provincial policy vacuum on aboriginal issues that failed to recognize section 35 of the Constitution Act (1982), its definition of aboriginal peoples, and their “existing Aboriginal and treaty rights.” There were five futile years of aboriginal constitutional discussions (1982–87) that were followed by significant failures such as the Meech Lake and the Charlottetown Accords in 1990 and 1992, respectively. These accords failed to recognize the inherent right of aboriginal people to self-governance and their title rights in Canada’s constitution.2 The purpose of this chapter is to explore the context of aboriginal land rights’ processes in Ontario, with specific reference to how Teme-Augama Anishnabai land rights influenced the provincial government and its development of the Office of Indian Land Claims, which later became the Office of Indian Resource Policy (1978–88).3 This policy context will explain why it has taken so long to resolve the taa land rights case.

Impact of the Bear Island Cautions By the 1970s, the Tories had been in power in Ontario for close to thirty years – ever since Colonel George Drew had won the 1943 election. Drew’s

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wartime victory was not a majority, however. For two years his government was propped up by the Co-operative Commonwealth Federation (ccf), the forerunner of the New Democratic Party. In the 1960s, the province, under the premiership of John Robarts (1961–71), was still attempting to negotiate what land it would provide the Teme-Augama Anishnabai for their reserve on Bear Island in Lake Temagami; this one square mile would not be formally transferred until 1970. When the provincial government decided to back a plan for a four-seasons recreation development site within the soul of the taa lands at Maple Mountain in the early 1970s, the taa resisted. Although their reserve was to be on Bear Island, their territory – spiritually, historically, and traditionally – extended into Northeastern Ontario and included Maple Mountain, covering four thousand square miles. In August 1973, under the Ontario Mining Act, the taa filed land cautions on about 110 townships in and around Lake Temagami. The local Ontario registrar of titles accepted these cautions, which effectively stated that the taa held the underlying interest in these lands and that Ontario could not dispose of them. The cautions remained in place until early 1996. The taa had been emboldened by the 1973 Calder case, which had just been handed down by the Supreme Court of Canada. Although Calder was defeated on a legal technicality, this judgement on aboriginal title rights in British Columbia effectively acknowledged that aboriginal title had a basis in Canadian law.4 Initially, the province made an offer to the federal government to get the cautions removed. After a brief investigation, the Ontario Government sent a civil servant (Mary Mogford, who was subsequently the first female deputy minister of Natural Resources) to Ottawa with an offer of $1 million to the federal government to buy off the taa and their claim. But no formal offer was ever made to the taa; in fact, the taa had not been told of the prospective federal-provincial negotiations or of the offer. The federal government said no (because they argued it was solely a provincial matter of land and natural resources) and this offer, made a few years after the cautions were registered, was never formally presented to the taa. After the provincial elections of 1975 and 1977, the Tory Government of Bill Davis (who had succeeded Robarts in 1971) was again reduced to a minority in the Ontario legislature. Davis was dependent on the ndp for his next four years in office, and the ndp wrung some concessions out of Davis in exchange for propping up his government. One of these demands was the establishment of the Royal Commission on the Northern Environment (rcne), which was modelled on the Mackenzie Valley Pipeline Inquiry of

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1974–77. The first commissioner of the rcne inquiry was Justice Patrick Hartt of the Supreme Court of Ontario, who subsequently became the first Indian Commissioner of Ontario (ico). The rcne’s issues were primarily related to environmental and treaty rights in Northern Ontario, with its overarching concern being the impact on the environment from clear-cut logging and the dumping of pollutants, especially mercury, into Northern Ontario rivers and lakes by pulp and paper companies. By the 1970s there had been little or no environmental planning for Northern Ontario. To remedy this policy and planning vacuum, the province established the rcne to sort out the environmental, and related, issues in Northern Ontario. The inquiry’s focus was on Reed Paper Company in Dryden, Ontario, and the presence of mercury within the EnglishWabigoon river system in the northwestern area of the province. The livelihood of aboriginal peoples and their economic future were at stake. The release of the Berger Report on the Mackenzie Valley Pipeline Inquiry in 1977 emphasized the importance of addressing aboriginal land issues before environmental or any other planning for development could take place. This gave fuel to the rcne mandate and led to the formation of the ico. Another demand the ndp made of Davis was to begin to tackle “land claims.” Most of these claims were, at that time, in Northern Ontario. Conventional government wisdom of the day rather naively thought that, since there was plenty of land and these land claim areas were far away from the urban non-aboriginal peoples in Southern Ontario, the claims could be accepted by the provincial government. Besides, it was argued, this issue was really a federal one since it was about “Indians,” who were then perceived to be “wards” of the federal government and not even seen to be citizens of Ontario by provincial officials.5 The largest and the foremost of these “claims” was referred to as the Temagami land claim, ignoring the taa’s name for their territory, N’Daki Menan. The Tories’ objective was to wage war on and to defeat the Temagami claim. In autumn 1976, before the creation of the rcne and the handing down of the Berger Report, the Tories decided not to negotiate the Temagami land claim. When the federal government turned down their offer, the Ontario cabinet decided to sue the taa for their own lands in order to remove the cautions by legal means. Provincial politician and their senior civil servants considered that it was worth going to court to remove the cautions and free up the four thousand square miles of land, which were rich in timber and minerals for resource and economic development.

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To accomplish this task, the Office of Indian Land Claims was established under the aegis of the Ministry of Natural Resources (which was formerly the Ontario Department of Lands and Forests before it was reorganized in 1972 after Bill Davis became premier). For a time, in the 1950s and 1960s, Lands and Forests had taken a lead role in aboriginal issues. This came about under the initiatives of the Scottish fur trader Campbell “Cam” Currie6 (1917–81), a former employee of the Hudson’s Bay Company. His focus had been primarily, but not exclusively, the development of the registered trapline system in the late 1940s and, subsequently, the federal–provincial resource development agreement in Northern Ontario. The trapline system led in the long term to the loss of aboriginal traplines and provided little or no protection for them because of a lack of enforcement by provincial officials.7 Currie, who in the 1970s was the (Ontario Ministry of Natural Resources) omnr’s resource development coordinator, had been attempting to assist aboriginal peoples in the north.8 Much good will had been generated by Currie’s initiatives, primarily in providing ministry funding for trapping and other economic activities related to the resource development agreement. However, the bitter legacy of the previous bureaucrats – Aubrey White and his successor Frank A. MacDougall (1896–1975) – remained with the First Nations.9 When the Department of Lands and Forests was renamed the Ministry of Natural Resources, Currie had much less influence.10 By the late 1970s, the reins of power at the bureaucratic level were firmly in the hands of the new professional elite of biologists and foresters, educated and trained in Southern Ontario universities, especially at the University of Toronto.11 This conscious plan to professionalize the department had long been the dream of McDougall, who was the deputy minister of Lands and Forests from 1941 to 1966.12 Up until that time, the department had simply filled its positions by political patronage, as did the other provincial departments. The provincial Tories created the Office of Indian Land Claims especially to fight the taa in the courts and to protect the province’s Crown lands. In 1976, the Tories appointed E.G. (Ted) Wilson, a forester, as director of the office. It would have been better if the government had appointed Currie, who had a good reputation with aboriginal communities. The office’s responsibilities involved land claims research, specific policy development on aboriginal land and treaty rights issues, assisting in the fishing negotiations, and involvement with the litigation on the Temagami claim, which was always given the highest priority.

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Wilson was of pioneer Scottish Presbyterian descent.13 The family homestead was in Burleigh Township, originally near Apsley, in Eastern Ontario. His great-grandparents, Robert and Mary Jane McCauley, owned McCauley’s Hotel, located halfway between Burleigh Falls and Apsley. This hotel’s reputation was that it was a “Temperance house in a day of hard drinking.”14 A graduate of the School of Forestry of the University of Toronto, Wilson joined the Ontario Department of Lands and Forests in 1958. As a silviculturist, his first posting was to the District Office of White River, a small town north of Sault Ste Marie. Often seen to be affable by outsiders, to his professional colleagues he was also a consummate perfectionist. A conservative in outlook, if not in politics, he followed closely the party line laid down by the Tories on aboriginal issues. He often stated very proudly that his brother held a registered trapline near Eel’s Creek in Burleigh Township and that he would also trap there. He always said that it gave him a special insight into the aboriginal peoples and their way of life.15 I joined Wilson in the Office on 2 January 1979.16 Wilson got the job primarily for his writing skills and also perhaps for his political views, which were closely aligned with the Tories. Having little experience of working with aboriginal peoples (which was typical for most senior management persons in the omnr at that time), he also had an inconsistent track record as a senior manager within the ministry. Apparently, he had riled field staff wherever he went largely as a result of his controlling and perfectionist style of micromanagement. Although professional staff were gradually taking over most of the managerial responsibilities at head office and in the field, the omnr was still in a transition phase, and not all the staff, Wilson included, had the requisite skills for building relationships with field staff let alone aboriginal communities.17 Wilson’s first job was to prepare a Cabinet submission recommending that the provincial government litigate the Temagami land claim. This position was entirely consistent with that taken by the province since the 1880s. Not surprisingly, to his credit, Wilson accomplished this initial task on schedule and doubtless this “success” lengthened his assignment from six months to sixteen years.

Political Smoke and Mirrors The political strategy of the Davis Government on aboriginal issues had long been one of deflection. And it was effective. To avoid the heat put on

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them by the aboriginal people themselves, the Tories used political smoke and mirrors. It was an overly simplified, cosmetic approach but it worked. Nor was it new. The Tories under John Robarts had used it effectively in the mid-1960s when they created an advisory committee on aboriginal issues and appointed prominent status or registered Indians to sit on it – for example, Toronto Maple Leaf Captain George Armstrong and Chief Lorenzo Big Canoe of the Chippewas of Georgina Island.18 On the surface, the Tories wanted to be seen as doing something on these issues, while behind the scenes, nothing was actually happening.19 In addition, the Tories (at the behest of the ndp) created the Royal Commission on the Northern Environment and, with the federal government, established the Indian Commission of Ontario (formerly the federal Indian Claims Commission established in 1974).20 The result of this process was that political power remained firmly in the control of the omnr senior bureaucrats and their political masters. The very first meeting of the senior committee, the Interministerial Committee on Native Affairs was chaired by Deputy Provincial Secretary of Resource Development General Bill Anderson, a Canadian tank commander in the Second World War; I attended that initial 1981 meeting. This committee mirrored the Cabinet Committee on Native Affairs. By ghettoizing the committee from other committees the government could be seen to be doing something, while in fact, doing nothing. All decisions were made by Cabinet directly. No one contradicted the chair of the Interministerial Committee when he remarked that “our Indians” were merely “wards of the state.” The focus of the debate was whether First Nations citizens were “citizens plus,” as recommended by the Hawthorn Report of 1964–66, thirteen years previously, or merely “wards.” The feeling was one that, in fact, aboriginal people were merely “citizens” of the province of Ontario, like anyone else, and if they were “citizens plus,” they were only so as a result of federal actions and responsibilities on aboriginal land and treaty rights, among other issues.21 By design, the Tories put few resources into aboriginal issues. For example, three years after its establishment, the Office of Indian Land Claims remained minuscule with two full-time staff and one researcher on contract. There was a very direct correlation between dollars, staff, and priorities. Wilson even brought in field staff, who had no professional training or any other experience in the area, to do historical research on two land claims. In 1978, the Office of Indian Land Claims took on additional responsibilities for treaty rights and was renamed the Office of Indian Resource

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Policy (oirp). The only example of the development of policy was the 1979 interim enforcement guidelines on hunting and fishing. This interim approach was only changed as a result of the Supreme Court of Canada’s Sparrow decision in 1990, which recognized aboriginal fishing rights. Instead of developing policy on aboriginal hunting and fishing, general guidelines were put into place to assist omnr staff in the field if they arrested and charged First Nations (not Metis) people hunting or fishing and only within their treaty areas. The omnr staff at that time only recognized aboriginal hunting or fishing if it was done on-reserve and over which presumably they had no jurisdiction because reserve lands were not Ontario’s Crown lands. Until 1978, the omnr considered the Office of Indian Land Claims as no more than a stop-gap measure to meet an immediate need in the context of the Temagami land claim. Once that litigation was sorted out by the courts, it was assumed that Wilson would be reassigned to another position. The staff employed in 1976–77 were either hired on contract, which had been found by Wilson to meet his immediate needs for research purposes, or seconded from field staff for similar purposes. Thus, he had hired Sally Cole, then a graduate student in anthropology at the University of Toronto, and Len Ugarenko, a graduate student with an ma in historical geography from York University. Early in 1978, the oirp was put on a firmer footing and Wilson able to secure permission to fill a permanent position for a land claims researcher, as the Temagami case was now seen as lasting much longer in the courts than had been estimated. As well, other claims were making their way to the oirp for resolution. The ministry advertised for its first full-time research position in spring 1978. Wilson had promised Ugarenko, the incumbent land claims researcher who was then currently under contract, this full-time position even before it had been advertised. But Wilson advertised the position widely, right across Canada, instead of having it posted internally and restricted to ministry personnel. Since there were no other strong candidates with such research experience working in the ministry at that time, there was no doubt that Ugarenko would have been successful in this job competition. Instead, quixotically, I ended up getting the job – I read the advertisement in the Toronto edition of the Globe and Mail on the back stoop of my rear porch at #3 West Valley Road in Corner Brook, Newfoundland. With a huge dose of naivety and wanting to escape from Memorial University, I applied and got the job. I gathered from what Wilson told me during the interview process that I was successful because I was trained as a historian

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and was the only candidate with a doctorate in history who had applied. Wilson, ever since he had become director, had actively sought out three people for advice on aboriginal issues: Cam Currie; his close friend at the rom in ethnology, Ed Rogers; and Rogers’s colleague Basil Johnston. To give Wilson credit, he chose Rogers to sit as the external person on the hiring committee for the position Wilson awarded me. And Rogers was a good choice. He later told me that he had wanted to hire an anthropologist for the position and that I was not his first choice for the job, but Wilson had insisted on having a historian. The government wished, I expect, to appoint someone who could qualify as an expert witness on aboriginal issues in the courts. I was hired in August, moved from Newfoundland, and began my government fieldwork on 2 January 1979, a job that would last for almost thirteen years. And it was in this way that I began a long friendship with Ed Rogers that only ended when he passed away in 1988. Although Ugarenko did not get the job, Wilson soon found additional funding and hired him in a permanent capacity. Probably to maintain consistency in the research preparations leading up to the examination for discovery and the trial, Ugarenko continued to keep the oirp’s most significant file of Bear Island, which he retained until he was promoted as a policy advisor to the Office of Native Affairs Policy in 1981.

The Role of a Pubic Historian at the OIRP My first land claim assignment was to have been a “winner,” that is, it was seen to be a valid claim that would be accepted by the Ontario Government for negotiation. It was the Assabaska land claim in the treaty #3 area of Northwestern Ontario.22 After some minimal research by omnr field staff, Wilson had decided that this claim was one the oirp could pursue through negotiations. This action was intended to show that the province was addressing land claims and would also deflect any criticism of the provincial government’s decision to sue the taa. The second file I was given was the Grand Council Treaty #3’s Headland to Headland water boundaries issue (a straight line between headlands, which included the land and waters as well as islands that covered these boundaries on the sixty-six Indian reserves in Northwestern Ontario), which Wilson had made perfectly clear was to be a “no.” Wilson’s perspective was that, for each case I was assigned, the written “historical facts” I prepared would support the results, which he had already decided.

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Although he never dictated the facts themselves, he always dismissed those that contradicted his interpretation or his position. He appeared never to listen to my arguments in favour of a case, or, even if he did, perhaps he chose not to understand. It seemed clear to me that he had his marching orders from senior omnr management and his Tory minister. In Wilson’s view, the historian’s role was to provide the “objective historical facts” drawn from the (non-aboriginal) written record. Thus, there would be a professionally sanctioned “scientific rationale” for his interpretation. Historians were not to make interpretations or to draw conclusions. This “scientific” view of history, derived from the Ontario public and high school system, was (and is) a popular and naive perspective. It was a dominant way in which history was seen by politicians and civil servants alike in the provincial and the federal governments. I expect that it still is the view within governments. This view, is of course, not confined to governments or the civil service; it is also held by other professionals. On this basis, the outcomes for files then in the office were determined as follows: Assabaska was to be a “yes”; the Brunswick House Land Claim (treaty #9), which was also my file, was to be a “no”; Temagami was already a “no”; and the Grand Council Treaty #3’s Headland to Headland claim was also to be a “no.” These tactics not only allowed the government to stall and obfuscate its decision-making by studying issues to death, they also delayed the day of recognizing (and the reckoning of) aboriginal land and treaty rights seemingly forever. Even the positive initial responses to some small claims move through the government processes at a less than snail’s pace, taking one to two decades or more to resolve. For example, one of the very first specific claims for only four hundred acres of land in Enniskillen Township in southwestern Ontario put forward in 1977 remains only partly resolved in 2009, more than three decades later. The only affirmative response I witnessed was the Assabaska claim, which had been presented to the federal and provincial governments in 1977. But even that was only settled twenty-two years later in 1999. The Brunswick House claim, submitted in 1976, was the subject of a settlement agreement eighteen years later in 1994, and the Grand Council Treaty #3’s Headland to Headland water boundaries issues has been mired in fitful litigation since the 1980s. From the Tory point of view, this approach of deflection was a singular success. In the 1970s, aboriginal issues never became politically volatile, quite in sharp contrast to the Temagami blockades that were to take place in 1988–89 when the Liberals were in power. This Tory strategy, however,

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continued the myth into the 1980s that it was alright to do nothing about aboriginal claims. The Tories have continued to take the same position up to this day. Michael Harris deviated sharply from this approach in 1995, and it led directly to the death of Dudley George at Ipperwash in Southwestern Ontario. Bear Island, however, would soon test this laissez-faire attitude.

The Bear Island Court Case Although I was not responsible for doing the research on the Bear Island case in the late 1970s or early 1980s, I kept raising the taa land rights issues while I was working for the Office of Indian Resource Policy. I indicated repeatedly that, when the taa asserted that, according to their oral tradition, they were not present at the negotiation of the Robinson Treaty of 1850 and did not participate in it, they must be believed as being correct. I was not seen as being helpful for providing a contrary interpretation to the Crown’s historical and legal arguments. As a result, although I was an expert witness twice during the Bear Island trial at the Supreme Court of Ontario, I never had carriage of this file when I was with the omnr. I was called upon twice, when the trial was in process in the Supreme Court of Ontario, to testify on matters of little or no consequence to the final decision and about evidence that cut both ways. I am still not at all sure why I was called as a witness for the Crown. I was not an expert on the history of the Temagami area or on the taa. Most of my research for the provincial government had to that date (1982–84) been on the treaty #3 land and resource issues. I had no professional publications on the subject at all or on the Robinson Treaties of 1850. My testimony concerned the uses of the land made by non-aboriginal people and non-aboriginal governments since 1867. That history is conflicting and cuts across both sides of the issue of the uses of the land by non-aboriginal people. What was really damaging to the taa case was the refusal of Justice Steele to accept Jim Morrison’s testimony and the fact that the taa legal counsel mishandled the case, including his experts and the oral tradition evidence from the taa elders. This was acknowledged by the taa, who fired their legal counsel after the Steele judgement was handed down on 11 December 1984. My testimony on how non-aboriginals have used Temagami – its land and resources – since 1867 was peripheral at best and was not cited in the judgement handed down by Justice Steele. It had no impact

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whatsoever on his ruling. The written records showed, erroneously as it turned out, that the taa were placed on the government’s paylists as having received payment for at least five years (and from the 1880s until 1979, when taa citizens refused payments thereafter). During the trial, although the taa oral tradition was admitted as evidence by Justice Donald Steele, he simply chose not to believe it because the written record seemed to contradict it. For my part, this aspect of the case “haunted” me from 1979 to 1996, when I discovered the truth that the taa oral tradition had been accurate whereas the written records had been falsified by Ironside and the Indian Department. This was one of my primary motivations for writing this book. The Temagami claim was always the first priority of the Office of Indian Resource Policy, and Wilson held this file close to his vest. As might be expected, decisions concerning Temagami were always made at the highest level of government, and the case was always seen as a political issue. When I joined the Native Affairs Directorate in 1987, the Temagami case was on appeal. Settlement offers were made by the Liberals under Ian Scott in 1986, 1989, and 1990. When the blockades occurred in spring 1988, the executive director of the Ontario Native Affairs Directorate held the Temagami file and reported directly to Minister Ian Scott and Premier David Peterson. The omnr always approached Temagami as if there was a racial war going on between themselves and the “Indians” of Bear Island.23 The oirp was always in the middle of this war because it held responsibility for resolving or perpetuating the basic historical injustice confronting the people of Bear Island: their belief based on their oral traditions that they had not been at the Robinson Huron Treaty negotiations and had not been a party to the treaty.24 In 1977–79 Ugarenko was working with Professor Charles Bishop, a US anthropologist then teaching at the State University of New York. During his sabbatical in 1977–78, Bishop was paid a great deal of money to produce a report on the Temagami land claim and to testify as an expert in the litigation. I read Bishop’s bulky report of hundreds of pages late in January 1979. There was only one paragraph in it on the issue of whether the taa had been present at the negotiations and had signed the Robinson Huron Treaty. Given that only one paragraph was germane to the primary issue before the Supreme Court of Ontario, at more than $75,000 (in US funds), this was fairly expensive research. Nevertheless, Bishop accurately

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documented the fact that the taa had been an organized group or “band” prior to 1850. But his report did not address the main issue in the litigation, that is, why the taa had never participated or signed a treaty. The legal counsel of the Ministry of the Attorney General (ag) who had been assigned to the file were forced in the examination for discovery to use Ugarenko as their expert witness rather than Bishop. Bishop was called as an expert by the Crown in the trial and proved to be, according to my recollections of the comments made the Crown’s lawyer’s both an unreliable and often contradictory witness for them. However, to his credit, Bishop stood by his report, which was contradictory given the character of the written records and what was known about them at the time.25 The province never asked Bishop, an anthropologist, to do fieldwork or otherwise research the taa oral traditions. The Supreme Court of Ontario eventually ruled that the taa were an organized society and held aboriginal title prior to 1850, that they had effectively adhered to the Robinson Huron Treaty in 1879 or thereabouts, and had never (and to date still have not) received all the benefits of it. In spite of not having an influential outcome in the court proceedings, Bishop was effectively blacklisted by First Nations in Ontario from any future fieldwork in Ontario for having acted as an expert witness for the Crown but against them. Most of his “friends” in the academic community testified on the “other side” in the litigation and expressed their concern about him. His report has never been published or otherwise made available by the provincial government or by Bishop himself. In spring 1979, aboriginal rights to hunting and fishing, which were part and parcel of aboriginal title, became joined with the taa issues before the Supreme Court of Ontario. Wilson was instructed by Minister James A.C. Auld, a long-time serving Cabinet minister under both Robarts and Davis, to develop an interim omnr response to aboriginal and treaty rights issues. This response – in the form of interim guidelines to be used by omnr staff when they found aboriginal people to be hunting and fishing without licences – was to deflect criticism from the omnr and to provide a proper atmosphere and a prelude to the negotiation of the Ontario Fishing Agreement for First Nations in 1979–80. These interim guidelines were to become a contradiction to the provincial government’s approach to Temagami. Wilson prepared a Cabinet submission on the interim guidelines. It was to go to Cabinet Office by Monday evening at the latest and be discussed

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on Wednesday by the full Cabinet. This submission reflected the way in which most government policy and processes on indigenous issues were made “on the fly” as crisis management. Before the interim guidelines, the omnr effectively prosecuted every “Indian” or Metis person who did not obey the provincial game and fish laws, irrespective of their aboriginal or treaty rights. Now, for the very first time, the ministry would have interim enforcement guidelines for aboriginal and treaty rights. The conservation officers were to be instructed, on a case-by-case basis, to respect the rights of registered or status Indians (but not Metis or non-status Indians) offreserve (only) within their respective treaty areas. This meant that conservation officers had the discretion not to charge “Indians” hunting, trapping, or fishing within their own treaty area (but not in a different one). These interim measures were adopted three years before aboriginal and treaty rights became part of the Canadian Constitution in 1982. These interim guidelines were developed and accepted by the provincial Cabinet within one week. However, it should be emphasized that these guidelines were not policy. They were intended to be discretionary instructions to the omnr conservation officers, who were charged with enforcing Ontario legislation and regulations such as the Game and Fish Act and the Ontario Fisheries Regulations under the federal Fisheries Act. Moreover, since they were discretionary guidelines and not policy, conservation officers could, and did, lay charges against status or registered Indians both within and outside their treaty areas. The hunting or fishing equipment and the country food (hunted on the land and caught in the waters) was seized, and charges were laid. The equipment and food was kept until after the trial was over and the accused was either convicted or found innocent. More often than not, the charges were reviewed, and then stayed or dropped altogether. However, the food and equipment were never returned to their owners. There was effectively no opportunity to defend oneself or one’s property through this process. These interim guidelines were not abrupt or complete departures from what was already in place. They were meant to be enforced for a maximum of six months until a full-fledged provincial policy was developed. The guidelines were developed in secret. They were not discussed with ministry staff in the field. They were written by Wilson at head office in Toronto. This was not his fault; given the short timeframe (ordered by the minister of Natural Resources on behalf of Cabinet) of only two working days, he had no time or opportunity to canvass fully the views of the omnr field staff, much less consult or even provide information to First Nations.

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Over the years, the interim guidelines drew considerable flak from First Nations, as might be expected, especially after aboriginal and treaty rights were incorporated as part of section 35(1) of Canada’s constitution in 1982. In addition, no province-wide fishing agreement ever came into effect, although one was signed on 17 December 1982. The interim guidelines, quite remarkably, remained in effect not for six months as initially contemplated but rather for twelve years. A provincial aboriginal interim process did not emerge until 1991, and then only after the Sparrow decision in 1990 had come down from the Supreme Court of Canada and laid out the bases in law for aboriginal and treaty rights, especially as they related to fishing. In this Ontario plan, treaty rights would only extend to status Indian people harvesting within their own treaty areas. However, these areas had never been surveyed, and some of the aboriginal peoples hunted, fished, and trapped along the borders of these areas. For example, the reserve at Long Lac (#58) was in the treaty #9 area, but the hunting and fishing rights of the community were seen by them to be in the Robinson Superior Treaty area. To complicate matters even further, there was no historical evidence that the neighbouring Long Lac people associated with Long Lake reserve (#77) ever signed the Robinson Superior Treaty. Where did their treaty lands and rights geographically begin and end? The adjoining treaty #9 reserve was in the Robinson Superior Treaty area. So, if a member of the Long Lac community hunted in the “wrong” geographical area, even if it was within their own traditional hunting territory, they could be arrested by the omnr conservation officers. Moreover, even if hunting in the “right” area, these were only guidelines and charges could still be laid at the discretion of the omnr field staff. The interim guidelines effectively created more inequity; Metis and nonstatus Indian people were denied their rights to harvest and gather food for themselves and their families. Even in spite of the judgement from the Superior Court of Canada in the Powley case (the Metis hunting case at Sault Ste Marie) in September 2003, Metis communities remained forgotten and unequal until recently in the context of this provincial government process.26 The interim guidelines not only created an endless source of friction between First Nations harvesters and conservation officers but they also became a lightning rod for omnr hostility towards aboriginal peoples. The guidelines were enforced by the omnr field staff, many of whom believed that the law should be applied equally, irrespective of aboriginal or treaty rights, thereby creating a context for institutionally sanctioned acts of

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racism. This meant that the omnr conservation officers and field staff assumed that the Criminal Code should continue to be used against “bad Indians” when they exercised their treaty rights and “violated” provincial laws. For more than a century, aboriginal peoples had been charged, and if they were convicted, could be fined or sent to prison for exercising their traditional aboriginal or treaty rights. The interim enforcement guidelines caused rancour and bitter wrangling between Wilson and the omnr field staff in the 1979–88 period, until finally, omnr senior staff grew exhausted from mediating the disputes and “traded” Wilson to the Native Affairs Directorate along with other research staff of oirp on 1 February 1988. Wilson, who always took a “hard line” on land claims, ironically found himself in the omnr to be seen as defending the interim guidelines and aboriginal and treaty rights on hunting and fishing. Whenever he did so, he was also seen by the field staff as protecting “bad Indians” from the law. As the writer of the Temagami litigation proposal of 1976, Wilson was now seen by field staff as an advocate of the aboriginal and treaty rights. It ended up costing him his job as director of the Office of Indian Resource Policy, which was followed by a brief stay in the Native Affairs Directorate, a forced early retirement, and death due to a stroke in 1995. The guidelines became permanent in 1991. It was not until 1991, after the Supreme Court of Canada ruled in the Sparrow judgement of 1990 in favour of aboriginal fishing rights in British Columbia, that a further Ontario corporate “interim enforcement policy” was developed by the Ontario Native Affairs Secretariat (in co-operation with the omnr) on hunting, fishing, and trapping. Even then, it was seen then to be “interim” until the law ruled again on these matters. Such was the policy lacuna of the provincial government regarding aboriginal people. Things have not improved much since then, largely as a result of the events of Ipperwash in early September 1995 and the death of Dudley George, regardless of the scc and the Canadian Constitution.

Ontario Land Claims Policy, 1976 –1984 In the early 1980s, the focus of the Office of Indian Resource Policy’s work continued to be on the Temagami court case. The strategy was fairly simple. Prosecute the Temagami case and wait until the courts ruled on it, and the other specific claims would follow, based on the courts’ rulings, which

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it was assumed would be in the province’s favour. Since the federal government already had a specific claims policy, which was a lightning rod for First Nations’ claims, the provincial government thought that it should not have a similar policy. A specific claim arose from the federal government’s failure to fulfil a legal obligation to First Nations as a result of government actions to fail to protect reserve lands under a treaty or through maladministration. For many years the provincial processes on land claims remained, as it had been for more than a hundred years, entirely legalistic. Ontario’s process on “claims” was largely based on the Temagami precedent. The Ontario-specific claims policy, simply stated, was to accept and judge each claim on its own merits. The province wanted to avoid categorization of any claims as comprehensive or specific claims as the federal government had done. However, although this approach worked initially, Wilson later came under fire for having written a policy that was never published or otherwise made public. Moreover, the decisions made by the province were secret, arbitrary, and not based on guidelines or processes that were either available to or could readily be understood by First Nations in Ontario. There were no criteria or standards to judge the merits of any or all of the claims. Without any policy in place, there was enormous leeway for Wilson to present his version of each claims’ merits, as he understood them, to the Ontario Cabinet (whose meetings were secret and confidential). This left a great deal of room for abuse in the process. Only the final decision, whether to negotiate or not, was made available to the First Nations’ representatives. No reasons were ever provided for the provincial decision. In practice, Ontario’s approach to specific claims worked as follows. First, a claim was acceptable if it did not impinge politically on the provincial government, that is, if it was in the far northern areas of the province where only aboriginal people resided and if it did not affect any important omnr or other public non-aboriginal interest(s). Secondly, no third party or public interests were to be in anyway affected by a claim’s settlement. Thirdly, a claim was acceptable for negotiation if there was advice from the law officers of the Crown that Ontario would clearly lose in court if the government said it did not wish to enter negotiations. This approach could be summed up as “claims, if necessary, but not necessarily valid claims, much less any settlements.” It was overly legalistic and a product of the position that Wilson had written into the paper on the Temagami land claim in 1976. It was an approach that would remain in place until 1986, much to the detriment of First Nations and their land rights issues.

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Later, under the 1985–86 Liberal–ndp coalition and the 1987–90 Liberal majority governments, there was more of a political will to resolve land claims, especially under the direction of Ian Scott, who was then the attorney general as well as the minister responsible for Native Affairs. It was then that the approach began to adopt a policy based on the precedents and acceptance of more than thirty land claims. Thereafter, once a decision had been made by the provincial Cabinet, and a minute (a written record of a Cabinet decision) made of it, it could not be revisited or revoked by that or a subsequent Cabinet in its decision-making process.27 In the meantime, the Tory majority elected on 18 March 1981 enabled the government to develop yet another “post office” to deflect criticism and the lack of policy development. A new bureaucratic structure was created to develop provincial aboriginal policy and then staff it with individuals who were unable to comprehend, much less write, such policy. This new office was designed in such a way that it would have a minister responsible for Native Affairs but he (it should be noted that there never has been a female minister responsible for Native Affairs) would not have any clout in Cabinet. (It was not a stand-alone Ministry of Aboriginal Affairs, which was only established by the Liberals in July 2007 in direct response to the final report on the Ipperwash inquiry.) And so the new Office of Native Affairs Policy was established in 1981 within the Secretariat for Resource Development. The onap was to represent the province at the Indian Commission of Ontario, and one of the issues to be negotiated there under the new Commissioner Patrick Hartt (who it will be recalled was formerly the head of the rcne) was the Temagami land rights issues. The Ontario minister responsible for Native Affairs was also still the provincial secretary for Resource Development, which was a dumping ground under the Tories for Cabinet ministers on their way down and out of Cabinet. The first minister was René Brunelle from Moonbeam in Northern Ontario. In the 1960s and 1970s, Brunelle had been the Ontario minister of Lands and Forests. Leo Bernier, also a former minister of Lands and Forests (and then omnr) subsequently replaced him. After Bernier, came Lorne Henderson, a former minister of Agriculture. He was followed by the impetuous and restless Norm Sterling from Ottawa, who had always been a loose political cannon for Tory governments. The first head of the Office of Native Affairs Policy was Judy Clapp, a former social worker. Extremely timid, and lacking in knowledge of aboriginal issues, she was frequently undermined by deputy ministers or other senior officials or bullied by Wilson. For many years, Wilson, who had

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applied for her job in 1981 and was unsuccessful, resented her. She later remarked with great candour and honesty that her political instructions from 1981 to 1985 were clear and unequivocal: the Office of Native Affairs Policy was not to do anything. When the Tories lost the election to the Liberals in 1985 and Ian Scott became the new minister and asked for action, she did not know what to do. She had spent too many years doing nothing. In 1987 she was shunted aside to another position in the bureaucracy outside of Toronto. Under the Tories, the Office of Native Affairs Policy did nothing to develop policy. It had no mandate to do so. Its primary function was to simply try to answer the mail. Staff would merely acknowledge letters from aboriginal people or their organizations that had been sent to the Office. Along with a covering memorandum requesting a response, they would then forward them for a substantive reply to the ministries concerned. There was no effective follow-up, much less action taken, on these requests. Substantive replies came from the ministries directly to the correspondent with a copy to the onap after the letters had gone out. Bureaucratic and political clout remained with the ministries. The onap had minimal staffing, primarily filled with individuals from the ministries or agencies who were no longer wanted. Its head, for cosmetic purposes, hired a few aboriginal lawyers. They quit in disgust when they discovered that there was nothing for them to do. They had been hired as mere window-dressing for the onap. By 1981, I was completely fed up with Wilson’s dithering and lack of action on land claims, especially the new provincial position of denial of the Grand Council Treaty #3 claim to Headland to Headland water boundaries. I decided to apply for the position of resource development advisor with the Office of Native Affairs Policy. However, Wilson persuaded me not to apply for the position. He argued that Clapp was lacking knowledge of the issues and was in over her head. She was not going to be there long, and the best thing was, at least for the interim, to remain with the Ministry of Natural Resources. Ugarenko was the successful candidate for this position, and he made an excellent policy advisor in his new role. For his part, in retrospect, Wilson did his best, within the narrow confines allowed by his new minister, Alan Pope (1981–85), to add additional staff and increase responsibilities for both research and policy in oirp. A lot of research needed to be done to provide a basis for policy papers (Cabinet submissions) on land claims. This work became an important foundation stone under Scott for the validation of more than thirty specific claims,

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as well as the negotiations on them. These included the six Rainy River Reserves in Northwestern Ontario, the Lac La Croix and Sturgeon Lake Reserves, islands in Lake of the Woods, the Rat Portage Reserve Islands and boundary issues, the Walpole Island First Nation boundaries issues, the Robinson Superior Treaty of 1850 Reserve land base issues, and the Algonquins of Golden Lake Land aboriginal title issues. But the overarching policy field on aboriginal issues went begging; nothing was accomplished on this front. Meanwhile, the major land claims precedent of Temagami continued to wind its slow way through the litigation process.

5

The Bear Island Trial, the Steele Judgement, and the First Settlement Offer, 1982–1986

The Bear Island trial began in spring 1982 and concluded on 15 March 1984. It was then to be the longest court case in the history of Ontario. The following narrative and interpretation of the events are based on my personal experience in the provincial government from 1982 to 1986, as well drawing on my private diaries, journals, and date books.1 The trial began before aboriginal land and treaty rights became law under Canada’s Constitution in 1982. Before the trial got underway, some aboriginal people had advised the taa that they should not proceed with the litigation because the historical facts were not at all clear and warned them that there were insufficient legal precedents to support the legal issues before the court. The taa chose not to listen to this advice and proceeded with the trial, which was held in the Supreme Court of Ontario Building at 361 University Avenue in downtown Toronto. Its antiseptic hallways are a sharp contrast to its large and comfortable courtrooms. During the trial, the taa seemed to always have someone in attendance. Mary Laronde, a Temagami First Nation citizen and later a councillor, was usually there drawing portraits of all of the individuals who participated in the proceedings. One commentator aptly described the proceedings as having a “circus-like atmosphere.”2 Justice Donald Steele of the Supreme Court of Ontario sat as the trial judge.3 He was then fairly young for a judge, in his late 40s or early 50s. Soon after the trial began, his father died and the trial was postponed until June 1982. Like most but not all justices of the court at that time, Justice Steele had no background or training on aboriginal issues. The one person who immediately comes to mind who had such experience was Justice

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Patrick Hartt, the first head of the Royal Commission on the Northern Environment and then first Commissioner of the Indian Commission of Ontario. Justice Hartt could not have been chosen as the judge in the taa litigation because he was the Indian Commissioner of Ontario at the time. However, Steele did grant wide latitude for the evidence presented to the court. He did not, for example, exclude oral history or oral traditions. Given the lack of legal precedents under Canada’s new Constitution, he had a tough job. One commentator rightfully remarked: There was sympathy among some in Ontario’s legal establishment for the task faced by Steele. According to this view, Chief Potts and Bruce Clark failed to confine their arguments to a manageable framework, specifically, they failed to narrow the issues sufficiently to meet the limitations of what can be realistically be addressed through the medium of civil litigation. On the other hand, it has been charged that Steele placed an unrealistically burdensome onus of proof on the Teme-Augama Anishnabai. Moreover, it is asserted that he failed to exercise sufficient control over the wide-ranging inquiry and questioning conducted by both Bruce Clark and Blenus Wright.4 But Steele had little choice in being flexible with legal counsel and with the wide latitude he gave for the admission of historical evidence. If he had exercised greater control, he would have been blamed for arbitrarily silencing the taa legal counsel and their experts. It was a no-win situation for Justice Steele in a trial that was complex and politically charged. While the trial itself was certainly in itself an educational experience, Steele appeared to be immune to it, encapsulating the “present vision.” His background was in the area of English common law and land law. This influence would be determinative in the outcome of the case. He simply could not see beyond the legal parameters imposed on him by the case. His “Reasons for Judgement,” and his denial of the legal validity of the taa assertions, reflect that fact.5 The real problem for the taa’s case was the work of their legal counsel. Born in Kenora, Ontario, Bruce Clark (1944–) was then only thirty-eight years old and a Metis (His mother was aboriginal, and she had gone to residential school in the Yukon).6 In the early 1970s, he had a one-person law office in the Northern Ontario town of Haileybury. When he took on the Temagami case, he moved to Bear Island. Whatever Clark’s legal or scholarly talents, neither he nor the taa possessed the funding to hire the team

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of legal experts necessary to win the court case. He was continuously outgunned and outmanoeuvred by the Crown’s lawyers, who had the resources and a team approach to the litigation, both inside and outside the courtroom, in what was a large and complicated legal case. The Crown’s legal counsel included Assistant Deputy Attorney General Blenus Wright; J.T.S. McCabe, who had been working on the case ever since he had left law school; Peter Jacobsen in civil law at the Ontario Ministry of the Attorney General; and Donald Bourgeois, a Metis and a former student of mine in history, who was doing his articles as a law student during the trial.7 In addition to Clark’s unsuccessful legal approach, there were the muddied historical facts based on the written records. There were few experts who had knowledge of the history or the ethnohistory of the taa. One person who was a true expert, Professor Bruce Hodgins, a historian at Trent University, was not called upon to testify by the taa. It may have been assumed by Clark or the taa that Hodgins would be a liability in the trial. He may have been perceived to have a conflict of interest in that he was a landowner within the land claim area that was before the Supreme Court of Ontario. But private lands were not an issue before the courts, only “Crown lands.” The Crown lawyers, of course, did not call Hodgins as an expert because they knew that his historical findings supported the taa’s views on the Robinson Huron Treaty and their aboriginal title and land rights. Clark also did not do his own experts a favour when he failed to meet with them beforehand to assist them in understanding the issues before the court. Many of his experts appeared in the Supreme Court of Ontario a mere twenty minutes before they were to testify and had no idea what their information was going to be used for on what issues in the court room.8 At some points in the trial this situation became an outright embarrassment since some of the taa’s expert testimony supported the arguments of the Crown. Clark then had to effectively cross-examine his own expert witnesses to attempt to get them to change their conclusions. The only really effective expert that Clark had in the end was the now deceased Professor William J. Eccles, a historian at the University of Toronto.9 Even the province’s lawyers admired his superb depth of knowledge and his bulldog style under cross-examination. The basic failing of the taa case in the litigation was simply the written evidence. There was not enough of it in their favour. And, since the taa were the defendants in the case, the legal balance of probabilities rested with the Crown. All that the Crown had to do, as the person suing, was to

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prove, on the balance of probabilities, that the taa had signed the Robinson Huron Treaty, or any adhesion to it, or any other treaty. Since it appeared from the written records that in the early 1850s some members of the taa had picked up some of the treaty payments, either in monies or in kind, and had certainly received their annuity payments from the treaty from 1883 to 1979, it was almost certain that the court would find that they had adhered to the treaty and would then decide in favour of the province. And that is exactly what happened in the successive court judgements in 1984, 1989, and 1991.10 Experts for the taa included Professor Eccles; Professor Donald Smith of the Department of History at the University of Calgary; the now deceased Dr. Edward S. Rogers, curator of Ethnology at the Royal Ontario Museum; Professor Conrad Heidenreich, a historical geographer at York University; and two provincial employees, Thor Conway, a US-born archaeologist with the Ministry of Culture and Recreation, and Craig Macdonald, a geographer with the omnr.11 Jim Morrison, also a historian, was the most prominent expert witness for the taa. He began working for the taa on the case in 1978. He had been a researcher for Grand Council Treaty #9 (now Nishnawbe-Aski Nation).12 Under the circumstances he did a marvellous job. However, he did not hold a PhD nor had he published any prominent works on the history of Temagami. Justice Steele could, and did in his 1984 ruling, effectively discount his evidence and his interpretation of it. In his “Reasons for Judgement,” Justice Steele dismissed Morrison’s arguments as the wellintentioned, but biased, interpretations of a researcher who had become involved in advocacy. This was hardly fair to Morrison. He had spent more than forty days in the witness box testifying expertly on a wide range of historical information. It was a gruelling exercise, especially the cross-examination. Morrison was reputedly so numbed by the experience of being in the witness box for such a long time that, on his last day of testimony, he walked into a plate glass door in the Supreme Court Building. He has continued to work on a great many aboriginal cases. In Justice Steele’s judgement, it was not even necessary for him to remark gratuitously on this evidence, much less its interpretation. It appears, however, that Justice Steele became so riled by Bruce Clark’s meanderings and hostilities in the courtroom as the proceedings grinded on that he finally took it out on Clark’s experts in his judgement.13 Tony Hall has correctly summed up Clark’s “handling of the case” as “controversial,” remarking further that “not only did he lose the trust of his Indian clients

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but some charge that his argumentative zealousness was a major factor in stimulating Steele to write perhaps the most sweepingly hostile judicial opinion ever directed against native people in Canada.” This hostility was directed at Morrison and the provincial regional archaeologist for Northeastern Ontario, Thor Conway, as well Craig MacDonald. Justice Steele summed them up as “unreliable” and “typical of persons who have worked closely with Indians for so many years that they have lost their objectivity when giving opinion evidence.”14 This gratuitous remark by Justice Steele undermined and eventually cost Conway his job at the Ministry of Culture and Recreation. He moved to California.15 To say that the trial exhibited a profound personality clash between Clark and Steele would be a huge understatement to anyone who had been in the courtroom. Clark did not seem to have a thorough knowledge of the historical facts, which surprised me. But then again he failed to use a team approach to litigation, and this was a mistake in such a lengthy trial in which over three thousand exhibits were presented as evidence to the court and the proceedings themselves filled sixty-eight fat tomes. I recall that in autumn 1984, the second time I was in the witness box, when I was under cross-examination from Clark, Steele interrupted Clark repeatedly to defend what I had just stated to the court. Clark had refused to listen because he did not like my answer to his question. I had simply repeated my answer when Clark had not restated his question in another form. I was an expert witness for the Crown twice in the court case, over a period of one full day in 1982 and another day again in autumn 1984. This occurred in spite of the fact that I had never studied the history of the Temagami area or the history of the Robinson Huron Treaty as it pertained to the issues before the court. The closest I had come to the subject was a report on the Mississauga River #8 First Nation’s northern reserve boundary issue. This involved events after the treaty was negotiated and signed by the Mississauga River people. I still am not sure why I was asked to be an expert witness in the case. However, the experience was new to me at the time. I learned that this process had no place for fairness. Of the greatest damage to the taa, was the fact that they presented no testimony from elders who were knowledgeable about the taa’s oral history and traditions. This should not be at all surprising. This happens to aboriginal people every day in Canada in criminal trials.16 They are silenced before a process they cannot understand and are assumed to be “bad Indians.” Basil Johnston has sensitively described how it feels to be in the courtroom:

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The accused is systematically made to appear as a base person. The Crown introduces evidence to support its charges and to obtain a verdict of guilty, and demands the imposition of the maximum penalty, removal from the society of good men and women and sentence to the company of bad men and bad women. Counsel assails the accused’s selfesteem, pride, a sense of worth, and credibility. The accused’s self-counsel may rebut the charges and obtain an acquittal, but if defence counsel is unsuccessful and the client is pronounced guilty as charged, the accused’s wickedness is confirmed and upheld by the court and reported in the papers.17 The trial was a public event and was reported widely in the newspapers. The elders were treated pre-emptively with disrespect by the Crown’s legal counsel, who tried to show that they were not related to the TemeAugama Anishnabai. Unfortunately, this tactic worked in silencing the elders, and without their testimonies that would have outlined the oral history, the taa effectively had lost the case. This situation was largely the fault of Clark. For his part, Steele allowed their evidence and treated the elders with respect. The people Clark brought before Steele and who did testify were all men who were, or whose fathers had been, members of other First Nations and who had, through marriage, become members of the taa. Thus, they had little or no knowledge of the taa oral history and traditions. Their testimonies did a great deal of damage to the case, since it appeared, at least in this court room setting, that they could not speak authoritatively about the taa. Perhaps other prominent people in the community could have done so. But Clark did not call on them. The court case was decided on the nebulous and incomplete written history – as it was then known – and according to the rules of the Canadian justice system. Oral traditions were, indeed, “on trial.”18 If the “Indians” did not have a fair hearing, it was also clear that the Crown’s lawyers became the “cowboys” of the case. They treated no one with respect, neither non-aboriginal nor aboriginal witnesses. There is something truly horrifying and downright disrespectful about the way nonaboriginal lawyers respond to a land claims case in the courtroom. As Johnston has remarked: The lawyers are not satisfied with discrediting testimony, it seems they are intent upon destroying whoever is summoned to the dock. That they

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should destroy liars and perjurers is fitting. But for lawyers with the ability to make almost everyone appear like a liar and a fool to set about regularly to assault and destroy credibility is a terrible abuse of skill and authority. The accused and the witnesses are forced to run the judicial gauntlet and are made to suffer dishonour, disgrace, and even vilification at the hands of the lawyers.19 For these activities, the Crown’s lead counsel were not rebuked; they were rewarded by the provincial justice system.20 Issues involving aboriginal title and rights deserved a better fate. The effects of the Bear Island litigation have been profound. It has made the taa little more than criminals in their own homeland.21 Justice Steele ruled on 11 December 1984 against the taa. All of his rulings completely accepted the province’s legal position and contradicted the history of the taa. Steele argued that the taa were not and had never been an organized society. They had participated in the Robinson Huron Treaty, even though they had not signed the treaty document, and Chief Tahgawininni had signed on their behalf. Even if they had not signed or participated in the treaty, they adhered to the treaty when they accepted the annuity payments offered to them in 1883 and thereafter. Even if not all of these facts were true, Steele concluded that the Crown had the legal right, and had, in fact, unilaterally exercised that legal right through legislation and regulations, to take away their aboriginal title and land rights without their consent in 1850 and thereafter.22 The people’s own independent history of the taa was seemingly brought into disrepute. Justice Steele was left to sort out the written record without any aboriginal perspective or context. He basically adopted all of the Crown’s legal arguments, hook, line, and sinker. Drawing on the St Catharine’s milling case of 1888, Justice Steele reasoned aboriginal people had been conquered, they had no proprietary rights, the treaties were effectively meaningless exercises, and the Crown could do what it wished. Historian Tony Hall observed of Steele’s judgement that Aboriginal rights constitute tenuous and vulnerable principles of law. As rights that are derived from the authority of the crown, they can be unilaterally eliminated, it is argued, by agents of the crown. In this scheme of interpretation the existence of Indian treaties or the lack of Indian treaties in any given area counts for very little. The judge wrote:

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“A treaty is not a conveyance of title because title is already in the crown. A treaty is a simple acknowledgement that may be formal or informal in nature.”23 The law was used to deny that the taa even existed as an organized “band” prior to the Robinson Huron Treaty and to extinguish their land rights arbitrarily and unilaterally. Hall has suggested perhaps with some justification that it is the Ontario attorney general who was responsible for bringing those legal arguments forward to Justice Steele, which found their way into his “Reasons for Judgement.” These legal views run against any enlightened conception of a just regime that respects human rights and abhors racism. Is it overblown rhetoric to suggest that there is a drift towards tyranny in the political assertion of power to extinguish unilaterally the rights of people? Is it unduly alarmist to fear the genocidal or ethnocidal implications of this tendency?24 These rhetorical questions, posed nineteen years ago, were prescient. They foreshadowed the events of 1995 at Ipperwash, which was brought about by the same people who were making the decisions in the Temagami case. It should not be forgotten that, at the end of the Tory reign in 1985, Frank Miller was premier, the Ontario attorney general was Alan Pope, and Mike Harris was the minister of natural resources. To be sure, between 1981 and 1985, the political instructions were coming from the then ministers of natural resources, Pope and Harris. As a result, no real attempt was made to negotiate an out-of-court settlement during the Tory years. It would be left to Ian Scott to salvage what was left of the Tory wreckage of the Bear Island case between 1985 and 1990. After losing the case and being fired by the taa in 1985, Clark went on to complete his MA at the University of Western Ontario and his PhD at the University of Aberdeen in Scotland on Canadian constitutional law. His thesis was published as Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada in 1990. In his 2004 book of memoirs, Justice in Paradise, Clark notes that the Bear Island trial was like going to an “execution” with all the cards stacked in favour of the Crown.25 If that is true, it is unclear why he took on the case in the first place. You do no service to your client if you do not believe that you have a chance of winning if you go to trial. However, he does give a fair account

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of the trial and puts his loss down to the “chicanery of the modern justice system,” blaming Steele and concluding: There is no basis in law for the judge’s statement that “Europeans did not consider Indians to be equal to themselves.” The wording of the law is to the opposite effect. Rather than deny the Indians’ humanity, the law has expressly and explicitly protected aboriginal rights as the most basic of human rights. This is what the trial judge found to be “inconceivable.” And because he personally found it so, he never did address the actual wording of the law. He brushed it all aside. The same process occurred in the Ontario Court of Appeal and the Supreme Court of Canada: the law was never addressed at any stage of the Bear Island case.26

The First Temagami Settlement Offer, 1986 In the two years following the loss of the Bear Island case, 1985–87, the Liberals had a minority government. It effectively was a coalition government propped up by an agreement made with the ndp. This short-lived political agreement had no specific aboriginal issues as guiding the priorities of the new government. There was little difference in the objectives of the Liberals and the ndp on aboriginal affairs, except that perhaps the ndp wanted matters to move forward at a quicker pace and to concentrate on social and economic issues first. This did not change in the years that were to follow, even with the Temagami blockades of 1988–89. When the ndp came to power in 1990, that government merely carried on with the former agenda of the Liberals, which was to focus on Quebec and the Constitution. Indigenous issues were a secondary priority, and land claims negotiations were not to be initiated but rather tidied up as a form of housekeeping. When the Liberal coalition government began, the first priority for Ian Scott was Temagami. He had political clout as second in command to Premier David Peterson while wearing the hats of the attorney general and minister responsible for Native Affairs. Scott was soon seen to be responsible for bullying his colleague, Vince Kerrio, then minister of natural resources, into making a settlement offer to the taa. In addition, Scott had the province’s legal arguments changed as the litigation moved to the Ontario Court of Appeal and the Supreme Court of Canada. His argument was that, if Steele was right that the taa had participated in the treaty

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through a treaty or otherwise, then the province admitted that there was an outstanding legal obligation for Ontario to provide all of the benefits of the Robinson Huron Treaty of 1850, including a reserve, treaty land, and harvesting rights, as well as any annuity or other payments that were outstanding. In spite of Steele’s ruling, these were Scott’s legal reasons for making offers to the taa, beginning in 1986 and following in 1989 and 1990. He recognized that Justice Steele’s ruling cut both ways. If the taa had no aboriginal title or rights, then the taa had treaty rights under the Robinson Huron Treaty, which must be respected. Scott had also goaded the omnr senior staff, much against their will, to cooperate in preparing a settlement offer. In autumn 1985, after only a few months in power, Scott requested that the Office of Native Affairs Policy, in conjunction with Ontario Ministry of Natural Resources, prepare this settlement offer for the taa. Scott knew and understood the issues. He had gained a great deal of experience on aboriginal issues when he was commission counsel with Justice Thomas Berger on the Mackenzie Valley Pipeline Inquiry in 1974–77. He helped Berger write the bestselling report, Northern Frontier, Northern Homeland, which paralleled the Temagami situation, but on a larger and grander scale in Canada’s North.27 The response of the omnr senior staff was incredulity. How or why would one want to make a settlement offer to the “bad Indians” who had lost their case in the Supreme Court of Ontario in such an overwhelming fashion less than a year before? When they discovered that Scott was in fact serious about the proposed offer, the omnr bureaucracy proceeded to do its best to make the offer so limited and unpalatable that the taa would certainly reject it. The omnr field staff were directed to prepare the offer as it related to the specific lands and resources that were to be put on the negotiation table. The omnr staff selected lands that were to be outlined on a large map of the Temagami area. The first large area to be selected was Lady Evelyn Smoothwater Wilderness Park. Maple Mountain, one of the most significant sacred places of the taa, was located within the park. omnr was certain that the taa would not select this site. A wilderness park, they reasoned, did not need to be protected. Even if it were to be selected, the omnr had no doubt that it would essentially remain as it was even without provincial park status. The taa had a similar approach from their own perspective and were not interested in selecting this area for their reserve land base. The first and the largest area has been a non-starter in negotiations. The second and third areas were located along the northwest shores

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of Lake Temagami. It was assumed that these areas, valuable to the omnr for their pine forests, were too far from Bear Island to be of interest to the taa, whom the omnr staff figured were not very much interested in harvesting timber. The fourth area that was chosen was on the east shore of Lake Temagami and included Camp Wanapitei, which was owned by Bruce Hodgins, a professor of history at Trent University and a well-known friend of the taa. This land was one of the summer meeting places and campgrounds where the taa had held their cultural activities during the summer and fall over the many years past. The omnr staff considered it to be an excellent place for a new reserve. As well as being located in a sheltered bay of the lake, it was in close proximity to Bear Island. The omnr staff believed that, if they offered this area to the taa, including a buy-out of the non-aboriginal peoples living there, they could create a racist backlash among the non-aboriginals, which could potentially end any settlement negotiations quickly. The same was true for the fifth area. It was located immediately south of the fourth area and situated on the lake just north of the town of Temagami. The sixth area was the one Ontario had denied to the taa in the 1880s. Located at the south end of Lake Temagami, this area of one hundred square miles had the advantage, at least for the omnr, of having been logged over a number of times throughout the twentieth century and was, by 1985, of little use to the omnr or its clients-resource developers. It also included water and land under the water; moreover, it could be “sold” in the negotiations to non-aboriginals as being “just” to the taa. When the taa rejected it, they would be seen as being unreasonable, once again. At the same time, to put the area on the negotiation table would infuriate the non-aboriginal interest groups on the lake. Scott would have to explain it, not the omnr, and he would have to take the political heat. The omnr field staff always played the “race card” when push came to shove in this game. The seventh area was Briggs Township south of Temagami, which was potentially rich in minerals. The omnr staff believed that, in spite of its development potential and location close to Bear Island, the taa had, like most aboriginal peoples in the province, little or no interest in mining or minerals and, thus, would not select it. The eighth and last selection was a one-square-mile area south of Temagami situated on the lake. It was, in fact, the main docking area for the taa and would give them access to both Bear Island and the lake. Again, while this area would likely be selected, along with one or more of the others, it would arouse natural resource conflicts as well as racist feelings among the non-aboriginals. The omnr

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field staff clearly saw the Bear Island claim as a predominantly non-aboriginal issue. These eight areas were marked out with different colours on a postersized map. It is rather an amusing footnote to history that this map of the eight areas later came back to haunt Mark Krasnick, then the Ontario deputy minister responsible for Native Affairs. In 1990 or 1991, someone in the provincial government provided a copy of it to the taa, and it was presumably interpreted by the taa to show all of the land areas that were valuable to the province and that the province would have to relinquish as part of any settlement negotiations made with them. So much for confidentiality of provincial documents. The settlement offer was constructed so as to make a trilateral offer from the federal government and Ontario conditional on federal involvement and yet would dangle enticing land offers in front of the taa. The offer was simple, perhaps too simple. It would be in the ballpark of $30 million, which was considerably more than the amount per capita ($25,000) that was being offered at that time by the federal government in comprehensive land claims negotiations in Canada’s North where no treaty existed. The federal position had always been, on strictly legal grounds, that no comprehensive claims existed in Ontario. But Scott’s objective was for Ontario to make a fair offer that would show that the province was serious and willing to settle the issues out of court. One half of the offer would be monetary compensation from the federal government for the annuity payments missed by the taa since 1850, plus interest. The other half would be selected by the taa in land, from one or more of these eight areas. Other considerations were also included, which comprised self-government initiatives or economic development ventures that were not specified. For some reason, these proposals – perhaps because they were not specified clearly – were never raised by the taa. The idea of this diverse settlement offer was to give additional scope to the negotiations for proposals from the taa. But, as we shall see, when the offer was presented at Bear Island on 30 September 1986, although it was respected as being genuine and the first such offer made to the taa in provincial history, it proved to be a non-starter. In response, the taa simply stated that, although they respected the provincial offer, they wanted to have their day in court.28 In preparing this settlement, the province had made minimal consultation with Ottawa. Scott briefly informed the federal minister of Indian Affairs of Ontario’s settlement offer when they were both in Halifax at a

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federal–provincial meeting early in September 1986. It is clear that the federal government would not participate and accept its equal share of the $30 million offer on the basis of the missing annuity payments between 1856 and 1883, plus interest since 1883. In 1986 this latter amount was calculated by provincial officials to be at least $10 million, perhaps as high as $15 million. Almost twenty-five years later, with compound interest (depending on how it could be calculated), it is a considerably higher price tag. The federal government took the position that the treaty entitlement was land, and land was a provincial responsibility. The offer was presented personally by Scott at Bear Island to show his respect to the taa on 30 September 1986. It was met with considerable good will by the taa. However, it was soon torpedoed by the omnr officials and lawyers in the Ontario Ministry of the Attorney General (omag). One of the conditions placed on the offer by the province was that the court action be suspended for one year so that land claim negotiations could take place. This condition was never negotiated; it was simply imposed by the Crown’s lawyers unilaterally. As expected, it became a major stumbling block to the proposed negotiations and the offer was declined by the taa early in 1987 for that very reason. Another condition was that the federal government must be a necessary partner to the negotiations. However, with Mulroney’s hostile Tory government in power in Ottawa, this condition was not likely to be met in any event since the federal government regarded the taa land rights as a provincial responsibility. Later that autumn, Scott requested that, since the omnr still had the responsibility for aboriginal land claims and related issues, Kerrio prepare a submission to Cabinet reviewing the province’s position on land claims and come up with a process that would work effectively to validate land claims and provide meaningful and productive negotiations. The purpose of the submission was to use the precedent of the Temagami settlement offer of September 1986 as a basis for initiating land claims negotiations throughout the province. I prepared the submission, and it went through Cabinet unopposed, being approved early in 1987. If the province had chosen to publish it, it would have had a fair and equitable land claims policy today. The omnr senior staff put forward once again the argument that the policy would show its true value by its practical results and not through its publication beforehand. They were really afraid that it would provoke nonaboriginal racism. In retrospect, both the policy and its publication would have helped the situation. This policy was subsequently reworked into a published policy in 1990.

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By this time, the taa had rejected the settlement offer and a provincial election (1987) was imminent. It was not seen to be “good politics” to put out such a controversial policy document so close to an election. The Ontario Cabinet decided to show action through the validation of claims and by its willingness to negotiate settlements before it published the policy. By this means, it would show aboriginal people that the province was committed to change. It was hoped that the policy could then be published after the Liberals had been elected with their majority government that year. That step was never taken after the election, although there was certainly plenty of opportunity to do so. In retrospect, not to publish this land claims policy was a mistake, especially in light of the Temagami blockades that were to follow in 1988–89. A published policy would have provided a rationale for the government to defend its action in the Temagami blockades. Practical actions followed. The fact is that the Peterson Government did make three settlement offers to the taa in 1986, 1989, and 1990. Moreover, the provincial liberals validated more than thirty land claims and negotiated the Manitoulin Island settlement agreement in 1988–90 after only five years.29 The 1987 land claims submission to Cabinet stated that the province would respond to land claims from aboriginal Nations in Ontario on the following bases: (1) to meet any outstanding legal obligations; (2) on the basis of fairness, as understood and as viewed from the perspective of aboriginal peoples, according to the spirit and intent of the treaties and other promises of the Crown (while the proposed negotiations would hopefully involve tripartite negotiations, it was not a requirement that the federal government be involved in every negotiation; it was recognized that some issues were wholly a provincial responsibility); (3) the province would also contribute resources to the aboriginal parties to the settlement negotiations to ensure that the First Nations were properly represented in them. It will be remembered that the federal government had, since the early 1970s, provided funding for claims research and development as well as loans in the settlement negotiations. However, lack of federal government involvement and funding in the negotiations and paying the negotiation costs of the claimants would be a huge obstacle in establishing meaningful negotiations on a bilateral basis between First Nations and the province. Hitherto the provincial approach had been not to pay the negotiation costs of First Nations, and so the province had no monies available for this purpose. This land claims policy would have worked had it been implemented and applied across the board. But, since it was not published, the taa, quite

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rightly after so many years of procrastination and negative responses, believed that the province was still making decisions of land claims in secret without any criteria or consultation. By not publishing its land claims policy the province contributed to a continued atmosphere of mistrust and lack of mutual respect. This lack of substantive action undermined the practical accomplishments of validating many claims as well as the negotiation of settlements. It also made it difficult for the provincial government to respond constructively to the Temagami blockades in 1988 and 1989. But before these blockades were to happen, Ontario would elect a Liberal majority that would in fact respond to aboriginal land rights. However, they did not understand the taa or why they blockaded the Red Squirrel Road extension in 1988–89. The next chapter will examine why the policies of the Liberal Government failed to address the land rights issues in the 1988–89 taa blockades.

6

Bear Island and Land Rights Under a Liberal Majority, 1986 –1988

A historian of the nineteenth-century federal Department of Indian Affairs, Douglas Leighton, has commented that the department had always been a backwater compared with other government departments. While his statements refer to the department in the nineteenth century, they continue to be applicable well into the twenty-first century. Leighton argues that, in terms of government priorities, funding and staffing at the Indian Department always got short shrift,1 at least until recently. In Ontario’s history, until July 2007, there has been no separate department of native affairs.2 The first small Ontario branch to focus its activities solely on aboriginal people, as has been seen in the previous chapters, was the Office of Indian Land Claims, established in 1976, renamed the Office of Indian Resource Policy in 1978, then the Office of Native Affairs Policy in 1981, and Ontario Native Affairs Directorate in 1985. It took more than three decades – finally, in July 2007 – for it to become a provincial ministry in its own right.3 Why has it taken the provincial “department” of Indian Affairs so long to develop a published land claims policy? Why does Ontario still rely on legislation, policies, and guidelines that exclude an aboriginal point of view to guide its decision-making for First Nations in such a paternalistic fashion? Does it not recognize that aboriginal peoples, their cultures, and their history are different? Is it institutional racism? Why is the Ontario Government so far behind Hydro One Inc. (formerly Ontario Hydro), which has had an aboriginal corporate policy in place based on the province’s 1991 Statement of Political Relationship and which has since been partly implemented?4 When Hydro One Inc. or big business is addressing aboriginal concerns as a price of doing its business, why does the province not do

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so? These are just some of the questions that may help us to understand the policy lacuna in Ontario since 1970.

Ontario Native Affairs Direcorate, 1987 On 23 November 1987, I joined the Ontario Native Affairs Directorate (onad).5 With a majority government now in power and with Ian Scott as the minister, it was an excellent opportunity to validate specific claims and to resolve some of the land issues. And it was, at least until summer 1990. The directorate’s original function was to be a “post office” and answer the mail, as it had over the years. But, at least for me, a change from the increasingly racist atmosphere of the omnr was welcome. Paul Williams, legal counsel for some Ontario First Nations, told me before I left the omnr that the Ontario Native Affairs Directorate was a minefield, and he warned me that I would not survive three months in my new position as Land Claims Advisor. He was wrong. I lasted four years, which in retrospect seemed more like four days. On Friday, 27 November, I had my first briefing with my new minister. Of all the ministers I worked for, Ian Scott was the most knowledgeable and delightfully witty, even when he was under the most severe political pressure. He enjoyed making decisions and taking risks. He liked the Native Affairs briefings, especially since he found the attorney general’s equivalent by comparison to be so mundane. He seemed to regard many of the civil servants in the Ontario Ministry of the Attorney General as unadventurous, unenlightened, and overly cautious in their approach. Handling such a double portfolio as one of the top ministers was stressful and difficult. But Scott always had a sense of history and tried his best to do what needed to be done in the area of aboriginal issues. In addition, he was a strong defender of Canada’s Constitution and of French-English duality as part of Canada. His priorities in his double portfolio included the Canadian Constitution and court reform in the Ontario Ministry of the Attorney General and the negotiation of land claims in Native affairs. These responsibilities were inherently and frequently in conflict.6 It was extremely unfortunate that Scott was not able to get out of the office more to visit aboriginal communities. This was not his fault. His political gatekeepers did not arrange the visits, preferring instead to keep him “safe” in the office. As the primary gatekeeper, Mark Krasnick travelled very little and did so only by train or car, usually to the Mohawks of

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Akwesasne Reserve near Cornwall in Eastern Ontario or to the Bkejwanong Reserve, partly located in Lake St Clair in Southwestern Ontario. He told me later that he had acquired inordinate fear of flying when working for the British Columbia provincial government: he’d been seated on a small plane ready to fly off from Victoria when his colleagues in another similar plane had just taken off and crashed with everyone on board being killed. He could just as well have been on that the plane. It is unclear to me why, if this were the case, Krasnick took the job in the first place when he must have known that the job description included travel throughout Ontario and frequently in the North. Since Krasnick also never delegated any responsibility or authority to his subordinates, as a result, the directorate lost touch with most of its constituency in Northern Ontario. The result was that aboriginal people regarded Ian Scott as aloof, if not arrogant, on the basis of what he did not do. They never, of course, saw his influence at Queen’s Park. In the constitutional discussions where he had some considerable profile, First Nations’ representatives saw him as a “heavy” and not acting effectively in their interests as minister responsible for Native Affairs. But his other portfolio was as attorney general of Ontario. At the 27 November briefing, Scott told us that he had just heard from his colleague, Vince Kerrio at the omnr, that he was willing to make a deal. The omnr would give up the land claims portfolio and responsibilities to onad. The omnr would then only address economic development issues as they affected natural resources and aboriginal peoples. The personnel in the oirp doing research on land claims would be transferred to the Native Affairs Directorate. The policy persons in the oirp would be reassigned in the ministry. Scott asked me what I thought, and I said that we should take up their offer; he agreed. For the directorate, the downside of this agreement was that the directorate would have to take Ted Wilson off the omnr’s hands. Wilson by this time had alienated so many people in the ministry on the fishing agreement and related treaty rights issues that they were desperate to get rid of him. The omnr agreed to get rid of land claims and Wilson in exchange for the research staff at the oirp. Wilson was given a position as director of federal-provincial relations in onad. But Mark Krasnick, its head and a former federal bureaucrat, always handled these federal–provincial matters directly himself. He was a former classmate of Norman Spector, then Mulroney’s principal secretary. Spector and Krasnick had gone to McGill University Law School and had a direct pipeline into the Prime Minister’s

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Office. Unfortunately, and in spite of his experience of more than a decade working on aboriginal issues, Wilson’s career was effectively over. He had simply made too many enemies in the omnr. The omnr senior bureaucracy’s willingness to rid itself of land claims also had to do with their wish to construct the Red Squirrel Road extension into the north end of Lake Temagami to open up the area for logging. For them the issue was Temagami and jobs in the forest industry, as the latter was dying in the north (and continues to do so). The omnr hoped that the issue of constructing the Red Squirrel Road extension would become a land claims issue and that the directorate would then take the flak while the road was being constructed. They assumed that they could effectively hide the road construction behind the land claim, which was no longer their responsibility. This was an overly simplistic and arrogant strategy that, in the end, did not work. A government with political will and a strong minister who usually got what he wanted in Cabinet were now in charge. (If the Temagami blockades had not occurred, much more would have been accomplished.) This did not mean that things were better in the Native Affairs Directorate. Four days before Christmas 1987, as it had been since its creation six years previously, it was in complete disarray. It had no strategic plan, no mission statement, no provincial aboriginal policy, and no legislative base, and there was no trust or mutual respect among its staff. The old order symbolized by Judy Clapp, its executive director, was on its way out the door. Clapp had left the onad earlier that year. Scott had wanted action ever since taking over in June 1985; he got little or nothing from the onad even after he had upgraded it from an office in the Provincial Secretary for Resource Development to directorate status. There were many candidates to replace Clapp, among them was Wilson. But the job went to an outsider. This decision caused considerable dissension within the directorate. The new executive director was Krasnick, who was hand-picked by Scott in spring 1987. When he came on board in August 1987, he arrived at 18 King Street East and literally found no one in the directorate that day, everyone was either sick or on vacation. He was young, thirty-seven years old, but very conservative, having had his first major bureaucratic appointment as a deputy minister under Bill Bennett’s Social Credit Government in British Columbia. He always stated that his political hero was Kim Campbell, at least before the end of her run as prime minister. They were both lawyers and had been contemporaries in British Columbia legal and political circles in the 1970s and 1980s.

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Krasnick always seemed to try to use, ineffectively, the federal bureaucratic culture in the Ontario system. This was like trying to marry chalk to cheese. He avoided making decisions himself as if he was afraid to make a mistake. Instead, the directorate had an endless array of committees that were intended to reach consensus and accommodation. This was a safe course to take, but it needlessly and often endlessly stalled any action. The process squandered valuable resources and was completely without adventure, risk-taking, or achievement. And it undermined whatever leadership aspirations the directorate may have had in the Ontario bureaucracy on aboriginal issues. When I first met with Krasnick early in December 1987, he asked what was the first land claim that we were going to settle through negotiations. The Manitoulin Island negotiations had just received Cabinet approval. I told him that a good one would be Manitoulin Island and the issue of the unsold reserve lands. He asked why Manitoulin Island was a good place to begin. I replied that the island was like Alabama in the 1960s; there was racism there. (A comparable situation occurred in Caledonia in winter 2006, on similar issues.) But there was a balance on the island between aboriginal and non-aboriginal people who would see it in their own interest to resolve the unsold reserve lands issues. He did not believe me. He acceded, although he remained unconvinced about the choice, until the settlement agreement was signed in July 1990. It was clear he had very little knowledge of aboriginal issues, much less their Ontario context. Krasnick had been the executive director of the Native Affairs Directorate for three months before I was appointed land claims advisor. I never found out why I got the job, and I was never certain that Krasnick was really convinced that I was the right person for the job. We were soon at each other’s throats. I wanted to negotiate, to act; he would do nothing, not even delegate responsibilities to me or to anyone else. Our internal staff meetings were a complete waste of time, and he never informed us of what was happening within the government. The first thing that Krasnick did to “fix” the directorate was not essentially a bad idea. He brought in a facilitator – British Columbia Merit Commissioner Joy Illington, a former colleague of his in the BC civil service – to conduct a workshop in December 1987. The purpose of this workshop was to seek accommodation within the disparate and divisive elements of the directorate and to reach a consensus on what was to be done as a team. Another Krasnick appointment from British Columbia was Caroline Lachappelle (an indigenous person and a personal friend of Illington).

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Illington and Lachapelle knew little about the directorate or the Ontario bureaucracy. Instead of bringing together people who understood what had happened in onap (and onad) since 1981, Krasnick set people at odds in the workshop. By putting in his own people, he signalled that he had, in fact, no respect or trust in the existing staff. This situation, highlighted or even sparked by this workshop, gradually became a poison that set people against one another and eventually set them into warring camps. Illington spoke to directorate staff individually and privately. Then, when we met as a group, she stated that there was a large gap between the large goals of the directorate compared with the expectations of the system. At the same time, directorate staff had limited ability to communicate among themselves, much less to plan and deliver what was required. She was placing the blame on the victim rather than on the system. She observed that this was seen in the directorate’s over-reliance on “just answering the mail,” an endeavour the directorate did not accomplish effectively. With no political instructions or policy direction, the directorate and its staff were powerless. More tellingly, one of the few aboriginal people working in the directorate stated that the staff did not understand “native issues” and had little or no commitment to First Nations. The directorate was perceived, quite accurately, as an organization that was part of the “white” problem, primarily comprised of well-intentioned non-aboriginal people who had little or no idea what they were doing. More damning was the fact that the directorate had little or no influence on overall government policies, and it seemed occasionally to develop processes that were inimical to the larger policy framework, for example, in its practice of discounting land claims rather than paying fair value. It was (and still is) difficult to argue with that assessment. There were few aboriginal persons on staff to be sure and a token number in the context of the Ontario civil service, nor would their numbers increase in areas where they could really have any influence. By 1990, of the senior positions in the secretariat, less than half were held by aboriginals. Was there an alternative? Would it really have mattered? There was a larger, more general staffing issue. There were always too few people chasing too many large issues on a day-to-day basis. In truth, the directorate did not have enough staff to answer the mail or simply react to emerging issues. Almost everything was done on an ad hoc basis in a perpetual state of crisis management. Not surprisingly, onad continued to exist and operate within a policy vacuum.

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In the workshop Krasnick stated that his predecessor had been “fucked over by the system” and that changes were needed. But, when the crunch came, he failed to make any substantial decisions. In the workshop I stated that eventually I wanted to write a history of the directorate. On reflection, that is probably something I will never do. In the years that followed, little or nothing was done to change that system; in fact, matters got progressively worse. At one point, Krasnick made out a large cheque to cover the Grassy Narrows negotiations and instead of mailing it out, directorate staff filed it away, along with the covering letter Krasnick had written and signed. I found it a year later when the file became my responsibility; the letter and the cheque were then sent to the Grassy Narrows First Nation. The directorate remained essentially what it had been in 1981. Yet some things happened in 1987–90 and were accomplished individually, if somewhat chaotically, by some of its staff. There was a political window open in the period from 1985 to 1990 that could have produced a model for resolving aboriginal land and treaty rights disputes in Ontario, one that could have been developed as a prototype across Canada. It is very infrequent that such a window exists, in which there is a minister interested in the subject with the ability to carry such issues forward with the premier and Cabinet. Scott was such a minister. This had never happened before in the twentieth century; nor is it likely to happen again in the next decades. This dispute resolution process could have been used to forestall or mediate the events at Oka and their aftermath. The model was based on the principles of mutual respect and equality developed in the Manitoulin Island negotiations and within the framework of the Treaty of Co-Existence that was part of taa initiative. These ideas were worked out and applied between 1987 and 1990 in spite of the leadership at the Native Affairs Directorate. But the ideas were stillborn when the Liberal Government fell in September 1990 and Bob Rae subsequently made a political decision to kill the model in favour of constitutional quixoticism, one year later, in autumn 1991. The knowledge and the expertise that had been present in the government were lost when individuals – for example, Mark Stevenson (as well as his predecessor, Alan Pratt who is now the legal counsel to the Temagami First Nation in their negotiations with the province) and myself – who had been involved in the negotiations, departed. Alternatively, there was the case of Bart Feilders who had successfully worked with the taa to reach a settlement. Unceremoniously, literally from one day to the next, the ndp on

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orders from the Premier’s Office fired him as a negotiator on the Temagami settlement negotiations. The taa negotiations fell apart by 1995 when Grant Wedge, the ndp political lackey appointed to head the secretariat, took over after Murray Coolican, another ndp patronage appointee, had left. When this happened, the Wendaban Stewardship Council, which had been established as part of the Treaty of Co-existence in 1990, was also undermined and then dissolved.7 For better or worse, Krasnick successfully marketed the model of the taa Treaty of Co-Existence to the federal and then the provincial government of British Columbia in 1990–91, at the same time that he was employed by the Ontario Government. It was an outrageous conflict of interest and a theft of indigenous knowledge. The taa model is now being worked out in the context of British Columbia treaty processes. Krasnick was extremely good at managing upwards in the provincial bureaucracy, feeding ideas and a line to people senior to him. Unfortunately for his managers, he never gave any credit for our ideas to senior management. He could not manage downwards at all or relate to his colleagues. No one trusted him because he had a propensity for being extremely selective about remembering what he had done or said. Worst of all, he destroyed his staff’s ideas inside government and then sold them to his political masters and others outside of government as his own. This was unfortunate, since most of his colleagues were career bureaucrats within the Ontario public service and knew from sources in other parts of the government (and other governments) what he was saying and doing. His activities and his leadership became a farce. Aboriginal people spoke of him as the one head of aboriginal affairs in Canada who did not know aboriginal people or understand their issues. This fact became apparent after one of our first visits by car to the Saugeen Reserve on the Bruce Peninsula. After meeting with the chief and visiting the reserve, Krasnick turned to me when we were alone and stated baldly that there was no difference between the people at Saugeen and how they governed themselves and the local non-aboriginal people nearby. The job was easy; give the aboriginal communities a non-aboriginal municipal style of self-government (which of course they already had) and economic development, houses, water, and sewer pipes. He seemed to forget that according to the Constitution this was an exclusive First Nation matter on-reserve with federal government assistance, and not a provincial responsibility. One could in this scenario forget about land claims or abo-

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riginal governance on treaty or aboriginal lands. I found this astounding for someone who was supposed to be a constitutional “expert.”8

Yet Another New Land Claims Committee One of the first directorate committee meetings I attended was held on Thursday, 3 December 1987, on the subject of “land claims.” The issue before the new committee was one of process and not substance. This was the first mistake. For too many years there had been no substance to Ontario’s approach to such issues. There was mistrust and suspicion between the province and First Nations on land claims, if not outright hostility. Krasnick’s favourite metaphor for land claims was that they should be treated like any damages suffered by a person who had an automobile accident. The inference was that aboriginal people were more like accident victims. He liked gimmicks and thereby substituted process for its own sake for substance. This facile analogy of land claims for automobile insurance claims did nothing to enhance his reputation within the directorate. His primary assumption was always simply that aboriginal people were “equal to” and not any different from anyone else. His “final solution” for land claims was to develop yet another layer of bureaucracy. This action prolonged, rather than shortened, the length of time it took to resolve them. This idea, attractive in the abstract, was deadly in practice. Krasnick created yet another committee, which he called the Senior Officials Working Group on Land Claims, as a clearing house to “validate claims.” This committee was intended to speed up claims through the Ontario Government by vetting them through the committee and forwarding them to Cabinet for approval. After negotiations, presumably, in this naive scenario, a cheque for the damages resulting from the claim would be in the mail. Not surprisingly, the omnr senior staff, not wishing their own corporate agenda to be burned by aboriginal issues, eagerly adopted Krasnick’s suggestion, and it was approved at that first meeting. Of course, the senior omnr senior staff wanted to slow things down, not speed them up. The committee was to meet every month on a Friday afternoon at 2:00 p.m. This schedule ensured that few or no staff would be in attendance. The main government committees met on Monday, Tuesday, and Wednesday of every week. Thursday and Friday were devoted to travel to out-oftown community meetings. Even if some people managed to meet on a

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Friday afternoon, there would not be enough time to bring items forward the next week for the deputies’ committees or Cabinet, which met monthly. The timing ensured that there was more, rather than less, delay by creating a new process that was badly scheduled to meet the needs of the system. Often a whole month, or more likely two, would pass without any action taking place after the committee reached a consensus on what was to be done. The ministries who were invited to sit on this committee always sent their junior officials (assuming that someone was sent, since there were many absences) who had no authority to do or even say anything. Their purpose was to monitor what the “enemy” – the directorate – was doing. Thus, the directorate never developed consensus on the issues within government. The irony was that at the first meeting Krasnick declared his intention to chair the committee, thereby giving the committee (in his words) some significance in the Ontario bureaucracy. But he did not yet have the status of deputy minister and had to brief his colleagues at that level before he could take a recommendation to the Deputies’ Committee on Native Affairs and then to Cabinet. However, even when he received the status of deputy minister in October 1990 by an Order-in-Council, as a reward from Bob Rae for staying on one more year, he never used it effectively. He too often, as we shall see below in the Temagami blockades, deferred to the line ministries rather than taking a leadership role. It was a slow process, tough sledding and not like a car accident claim at all. He even went so far as to think that after six months, once things were up and running smoothly and efficiently, he would relinquish his role as chair and let someone else run the committee.9 He never took this action. The committee was, in fact, an abject failure, and not surprisingly it was circumvented by line ministries at every opportunity.

Krasnick’s Initiatives at Negotiationing Land Issues One of Krasnick’s first initiatives in the directorate was attempting to build a team approach to negotiations. In theory this appeared to be a great idea. Negotiating teams were to be organized to negotiate land issues. In practice, the proposed teams were large and unwieldy. With less than ten professional staff, the directorate did not have the resources to do the job. Instead of adding staff, positions went unfilled and no new professional

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staff were added. Krasnick wanted, for each negotiating team, a person from the directorate to perform the following nine functions for each negotiation: team leader, negotiator, directorate co-ordinator, legal advisor, federal–provincial relations, communications coordinator, research support, financial advisor, and external liaison with other Ontario ministries. But there weren’t enough senior positions in the directorate to form even one negotiation team, much less do thirty negotiations. This work was to be in addition to the staff’s regular responsibilities. With only a handful of people, this was impossible.10 Effective negotiations do not require a large team to be successful. The taa negotiations were initiated in the middle of the blockades. They began with one person when Bart Feilders took his holidays and camped out with the taa on Bear Island in summer 1988. The Manitoulin Island settlement was negotiated with only two people wholly dedicated to the negotiations, and they were successful. The negotiating team was small and could focus on the work and the issues. What was needed for success was to focus on a single negotiation or two and develop a dedicated, small team – not a large unwieldy one – that achieved results.

Training for Negotiations Early in January 1988, with the impending transfer of the omnr staff from the former Office of Indian Resource Policy on the first of the next month, Krasnick asked directorate managers to develop the staffing needs and the cost estimates of settling land claims for the province. The plan for negotiations included three new positions of land claims advisors, one senior researcher, and five other researchers, as well as three interns who would be available for training and development. There would be minimal support staff since the people we hired would have access to computers and would either know how to use them or would receive training in their use as soon as possible. This plan was not dissimilar to what had existed in the oirp. Three additional land claims advisors would be assigned to write policy and conduct land claims negotiations. The additional researchers would be needed to provide research support to the settlement negotiations. The plan contemplated that the directorate would be negotiating either two or three land issues at one time. This was possible and advisable since land negotiations are not always predictable or consistent and are often

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inconsistent in timing. If there was a hiatus in one negotiation, the persons assigned to them could assist other negotiations or could write policy. It did not make sense to hire expensive outside negotiators who would be paid large sums of money for work that could easily be done in-house. But, while all the other ministries were hiring more staff on a daily basis under the Peterson Government, the directorate utterly failed to get any new positions, so the grand plan died a slow death.11 Worse than that, preaching the theme that anyone could “do Native affairs,” Krasnick continuously scoured the remains of the provincial government dredging up people no one else wanted from other ministries for short-term secondments. These individuals had no experience and were useless in negotiations, policy development, and research. Everyone was to become a generalist. On 1 February 1988, the oirp, housed on the sixth floor of the Whitney Block since 1976, ceased to exist. The Whitney Block overlooks Queen’s Park and the Ontario Legislature. It was built in 1925 and was named after Ontario Tory Premier James Pliny Whitney. When it was constructed in the 1920s, a bowling alley was put in for civil servants to use, presumably on their lunch hour or after work. Most of the oirp staff went to the directorate, and the rest were reassigned elsewhere in the ministry. Mel Crystal, oirp’s lawyer, eventually became the new coordinator of Native Affairs for omnr. The former professional staff from oirp, who had experience as land claims researchers, were placed into new positions by spring 1988 without any consultation, either with the managers or with them. No training or development was ever provided to them. Their new positions were ones for which they were not hired and for which they had no experience. This seriously undermined the ability of the directorate to do any real substantive work. Everyone was constantly in training on a day-to-day basis while on the job. Their careers as professionals were effectively over. Some quickly realized this fact and left for other work or to do their doctorates. Only a few stayed and picked up their paycheques. Thus, with no researchers left by 1995, the directorate no longer had any research expertise to tell senior management or politicians that there was an indigenous burial ground within Ipperwash Provincial Park, which was a factor that led to the death of Dudley George.12 Morale plummeted. Staff were arbitrarily shuffled to and fro like cattle every three to six months in constant reorganizations of the directorate. There was no consultation with colleagues about their careers. Profession-

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alism went out the window. Knowledge and experience were lost. Staff turnover was enormous. Within a few years the directorate became a dumping ground in government for people that no one else wanted and who had no experience in aboriginal issues. In the end, as a result, we only negotiated one settlement agreement (on the Manitoulin Island unsold reserve lands). Ironically, most of the old guard from the Office of Native Affairs Policy remained.13 The directorate was now divided into three competing and warring camps. The former Office of Indian Resource Policy people were in one camp, and they wanted substance and action.14 In the second camp were the leftovers from the days of inaction of the old Office of Native Affairs Policy – the “do-nothings.” The third camp included the individuals whom Krasnick brought from outside the government or outside the directorate and who, for the most part, had no expertise and whom no one really wanted – the “outsiders.” Even though Judy Clapp had gone, Krasnick selected the consummate bureaucrat Tim Eger to replace her as his lieutenant – the person who could do what he could not do, and that was to say “no.”

Reorganization after Reorganization On 29 January 1988, our head presented the directorate with a new organization plan, which was to include the function of land claims and accommodate the new staff coming over from the oirp on 1 February. The plan was supposed to accommodate two things: the needs of aboriginal peoples, and the programs that the directorate would deliver to them. The only difficulty with this approach was that the directorate’s role was to develop Ontario’s aboriginal policy. It had no programs to deliver. To design something that was based on a functional approach, which we did not have, was absurd. There would be a net loss of expertise within the directorate as the professional staff were placed where their skills and experience were of little or no use. No elder was ever asked to join the directorate and assist in the difficult job that lay ahead. This suggestion was considered too radical. Our head loved to hear himself talk; he never chose to listen to others. The last thing he needed was to hire an elder. Then he would have to listen. My objections were not listened to at the meeting. I was soon appointed and promoted from land claims advisor, to which position i had been hired just over two

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months earlier, to manager, “Lands and Natural Resources.” It was puffery. The title was of course a contradiction in real terms. Moreover, it was very difficult to explain, in fact well-nigh impossible, to aboriginal people whose “land” and whose “natural resources” it was. In my private journal I observed at the time that it would bring about an “artificial separation of subject matter from activity” and also in the end would lead to “intertribal warfare and a duplication of effort” within the directorate. Any organization must reflect the culture and the activities of the people it is serving. It took the directorate almost eight years to decide on what it was going to be doing. It was only in December 1988 that the directorate collectively, after a great deal of discussion at a retreat at the Nottawasaga Inn, in Alliston, Ontario, determined its mission statement, which, with all the ferocity of milquetoast, “acknowledges and supports the desire of aboriginal people in Ontario to protect their cultures, languages, traditions and institutions and to develop their communities consistent with their identities and aspirations.” Most of the directorate staff wanted something that reflected the advocacy work that they were doing within the government. Krasnick argued that the directorate’s main functions were to support the minister and answer the mail and thus should not have any advocacy functions at all. Krasnick had this patronizing message published on the back of bookmarks placed in the reading area of the directorate reception. In spite of the mission statement, the directorate remained a government “post office.” On 2 February 1988, directorate staff met with federal officials from the federal Department of Indian Affairs (inac) at our offices in King Street in Toronto.15 The officials were represented by Rem Westland, who then had a reputation as a ruthless Tory bureaucrat, and Gail Hinge, then a specific claims analyst from Ottawa. Rem led off on the wrong foot by declaring at the outset that, in the specific claims business, federal “policy” was not a problem. This was difficult to swallow. Ever since the federal policy on specific claims had been announced and published in 1982, it had been denounced across the country as totally wrong-headed and ineffective by First Nations. It was driven by the federal Department of Justice and was wholly legalistic in its approach from beginning to end. It was patently unfair and contrary to natural justice. There was no alternative to the federal policy, except for the litigation process. Westland went on to explain that the only difficulty that the federal government had previously had with their policy was a defect in its process,

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which he called “wild, bush-like” in character. Rather remarkably, he blamed his own government for appointing civil servants to be the negotiators of their specific claims policy and for going beyond their mandate. He cited the example of the failed negotiations of the New Credit Mississaugas First Nation, who had made a specific claim to two hundred acres adjacent to the Credit River in Toronto. What he said was completely false.16 He went on to describe the “progress” on other specific claims. This included the Mississauga River #8 northern boundary claim, discussed above, the Stangecoming Treaty #3 entitlement claim in Northwestern Ontario, and the Batchewana First Nation Claim to Whitefish Island at Sault Ste Marie. It seems that Westland was either not well briefed on the progress on these specific claims or that he was inventing a gloss on them, which he figured he could share with us since we did not know what was really happening. This was strange since Hinge knew that I had been involved in these claims for more than a decade, longer than she had, as a matter of fact. Westland continued with his explanation that they had totally revamped their specific claims process. Specific claims were now to be “driven by success.” This was bureaucratic doublespeak. Claims would not be negotiated within, or between, federal government departments, as they had been earlier. And mandates for negotiations were to be “tight.” This statement was an oxymoron if not an outright contradiction. Taking a “clinical” – or what was described as a “professional” – view, the federal government was now following legal advice from the Department of Justice for the purposes of validating claims. After validation, based on wholly legal principles, as understood and interpreted by the federal government, claims were then discounted by the lawyers in the same department. As a lawyer, and a former federal government employee, Krasnick’s eyes opened wide and gleamed. He loved this notion of discounting claims. It did not matter that this practice contradicted the Ontario Government’s own policy guidelines on land policy for non-aboriginals and was inherently institutionally racist in its assumptions. This battle of “discounting” was fought by Stevenson and me in the years that followed in the Manitoulin Island settlement negotiations. Krasnick backed down in 1990 only after he was told that “his” discounting practice set a double standard for overall land policy for aboriginal and non-aboriginal people, contravened Ontario Government policy on land, and that it was by implication, if put into practice, inherently racist. Fortunately, it was never put it no practice.

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Westland went on to describe the process in some considerable detail. Discounting was done by the lawyers in the Department of Justice. They assessed the legal strengths and weaknesses of each specific claim. They analyzed the legal principles and the precedents at risk to the federal government if the claim were to go to the courts. On this impressionistic basis, they would come up with a rough view as a percentage of whether the federal government would win its case in the courts. However, since there were then very few legal precedents in Canada on these issues, this was little more than guesswork – like throwing a dart at a board while blindfolded. This was never a handicap for government lawyers, who often pretended they knew better. What usually happened was that Justice Department lawyers would discount a specific claim at a value of at least 50 percent or more of what it was worth. This meant that a claim that was worth, say, for example, $10 million would be assessed legally as being worth $5 million if a court awarded a judgement on it, without including court costs to either the federal government or the claimants. A federal negotiator would then be instructed by the senior management of the federal Department of Indian Affairs to settle the claim in negotiations for no more than $5 million. The opening federal government offer was usually $2.5 million (i.e., half of the maximum), which was generally a non-starter. There were only two possible scenarios based on this strictly legalistic approach. The first was that, if the claim were to be negotiated and settled on the basis of the federal mandate, then Westland argued the historical value of the claim would be recognized. The best way of doing this was by putting up a historical plaque. In the alternative, if negotiators could not settle the claim under their mandate, they were instructed to break off negotiations. Then the claimants would have no option but to go to court. The claim file was then closed. By this method Westland argued that the department had significantly reduced its “failure” rate on claims. What was really happening, of course, was that the department was closing more files on individual claims and thus settling fewer claims through agreements. Westland admitted that the department’s funding envelope for specific claims was never spent in any year (because they had settled so few of them) and always had to be rolled over into the next. When the Indian Affairs Department closed the files on these claims, they were in Westland’s own words, like “Victorian curios” on a nineteenth-

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century parlour shelf. They would be left for a future generation to discover. This Darwinian approach to specific claims would ensure that only the strongest legal claims would survive the federal process. There was no room for fairness or for First Nations’ cultures or understanding in this draconian process instituted under the Brian Mulroney Tories as of 1985. Westland, Krasnick, Spector (Mulroney’s chief of staff) – these would be the same people who would three years later bring Canada the international shame and embarrassment of using the Canadian Armed forces against aboriginal people at Oka in summer 1990. Our head asked Westland what the federal position was on approaching negotiations from a position that was beyond legal obligations, either on the basis of fairness or from a political perspective. Westland argued that such an approach was not the federal government’s way of negotiating specific claims. As an example, he cited the Walpole Island First Nation’s claim to the waters of Lake St Clair, arguing that this, from the federal point of view, was a “weak claim.” If the federal government had acceded to it, they would have been perceived as “giving the store away.” There would have been a loss of credibility in the specific claims policy. This argument was patent nonsense. Westland’s statement here was curious since the Walpole Island First Nation had never submitted such a specific claim to the specific claims branch. Moreover, Bill McKnight, Westland’s minister had signed a framework agreement to negotiate the issue as a comprehensive claim just a year earlier. They had created a new process. Perhaps Westland was not aware of it. He further denied that there were any comprehensive claims in Ontario even though his counterpart, Lizzie Fraiken, was at the same time negotiating with the Algonquins of Golden Lake and the Lake Superior First Nations on their claim that they had never signed a treaty regarding their homelands. By the end of the meeting, Westland was admitting that the federal claims process was almost entirely “political” in character, in its “validation,” and in its “settlement sphere.” On the question of public education as part of the claims policy, Westland stressed that the federal government had tried to maintain confidentiality. This meant that, although they were contributing about $4.5 million a year into claims research and development across Canada, nothing was being done to combat this situation by public education or any other means. This amount was astoundingly low. After Oka it almost doubled as the federal Tory Government tried to buy off First Nations. It is still low at

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just over $7 million a year (a decade ago) and does not go far when spread across every First Nation in Canada. This position could be justified, he maintained, as a result of specific claims policy that did not allow for the “dispossession of third parties.” This meant that any land subject to a specific claim that had been sold and patented to private individuals would not, as part of any settlement, become part of the agreement, and thus land would not be taken from third parties and provided to the claimants. For the federal government, most specific claims settlements, especially those without provincial participation, effectively did not include any lands or natural resources, only monetary compensation. Westland summed up the federal policy on specific claims by emphasizing that it was based on a purely legal and business perspective. This approach foreshadowed the Harris Tories’ approach in 1995 and thereafter. The only considerations were what would be the cost to the government and whether it would lose in court. But these words were stated before the events of Oka in summer 1990. Westland was not able to foresee that federal costs could mount to more than several hundred million dollars if the police or the Army had to be brought in to silence resistance in a land claim dispute. After a discussion on matters pertaining to the status of discussions or settlement negotiations on these and other Ontario specific claims, it was agreed that there could be some federal/provincial cooperation on only two specific claims. These included the Mississauga River #8 northern boundary claim and the Brunswick House claim. Krasnick also noted that the province would be making another attempt to negotiate an out-of-court settlement on Temagami. All of the seven other claims Westland either refused to negotiate or was intent on closing their federal files. In addition to the specific claims already noted, ten others were also discussed, for information purposes, i.e., the Rainy River claim to the six Reserves and the 1914 “surrender”; Mississauga River #8 northern boundary; Rat Portage First Nation islands in Lake of the Woods; Brunswick House; Washagamis claim to islands; Assabaska; Big Grassy claim to the bed and the waters of the Big Grassy River; Lac la Croix claim to Sturgeon Lake Reserve #24C; Mississaugas of the New Credit; and Temagami. First Nations who were negotiating these claims with the federal government would have been quiet upset if they had found out that Westland was freely discussing their claims with the province “in secret” and behind the backs of their clients. By the end of the meeting Wilson, who was also in attendance, was apoplectic.

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The only two claims we could agree on were the ones that Wilson had spent more than ten years of his career denying that the province had any legal, or any other, responsibility to settle. Presumably Westland was merely following his political instructions. It was clear that the Mulroney Government was no longer in the business of settling specific claims in Ontario. It had shifted its priorities elsewhere. It proceeded to follow up on the two specific claims that it had already decided to negotiate. Settlement negotiations proceeded fitfully, and it took another eight years before settlement agreements were reached on the Mississauga River northern boundary and the Brunswick House claims. It was certain that the federal senior bureaucracy had no intention of cooperating with the province’s initiative to resolve land claims. In part, this attitude may have been a result of the mistrust created when the province made its unilateral settlement offer (which included a federal contribution) to the taa at Bear Island on 30 September 1986. (We only met with Westland once more in Ottawa in 1988. Subsequently, Mulroney promoted him to a senior position in the Privy Council Office. He is now vice-president for Aboriginal Affairs for the Corporate Research Group in Ottawa.)17 The implication from this meeting was that the province had to follow the premise that, if it wished to negotiate any other land claim settlements, it would have to go it alone. And that it is precisely what happened when we embarked on settlement negotiations with the United Chiefs and Councils of Manitoulin Island regarding the unsold reserve lands on Manitoulin Island later that month. This was initiated at the first regular meeting of our Senior Officials Working Group on Land Claims on 12 February 1988. If the Mulroney Government had not been in power in Ottawa, much more could have been accomplished.

“Beyond the Present Vision”? On Monday, 29 February 1988, the administrative committee of the directorate held its weekly meeting. At this meeting the directorate was asked by our head what our priorities would be for at least the next year. What were we to do? Would we develop a series of policy frameworks in such areas as self-government, lands and natural resources, and economic development for the government over the next year? Would we develop a strategic plan for the directorate? Would we develop a land claims policy? Would a legislative base for the directorate be established, thereby giving it some degree

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of permanency? If yes, future governments would not be able to eliminate the directorate and aboriginal affairs in a mere administrative shuffle. The answer was predictable. The directorate head answered his own question by simply stating that it would continue to do what it had been doing for the last seven years – it would provide support for the minister and answer the mail. And, although a strategic plan was put on paper and adopted, these were mere words and not action. This is exactly what was accomplished over the next three years – the directorate continued to answer the mail and, at least, tried to support the minister. The Temagami blockades were only partly responsible for this lack of substantive activity. Only a few weeks later, while the directorate was reorganizing itself and initiating its priorities, the omnr decided to push ahead and construct the Red Squirrel Road extension. Situated north of Lake Temagami, this road extension would allow for the logging of some of the last old growth red and white pine forests in Northern Ontario. The omnr began this activity without the directorate’s knowledge or agreement, thus involving the directorate in an activity that was unprecedented and would be a precursor to the events of Oka in summer 1990. A hundred years from now, Canadian historians will be asking why the Canadian justice system failed the taa, much as historians are now examining the St Catharine’s Milling case of the 1880s. Some law professors recognize the failure of the Canadian judicial system. Professor Kent McNeil has written of the Temagami land claim, Spiritual, ethical, and cultural values mingle with economic, political, and legal concerns. Given this complexity, no single approach can provide adequate solutions. This is particularly evident when legal solutions to the Temagami land claim are sought. The Euro-Canadian legal system is simply not equipped to deal with many of the issues which must be addressed because they lie outside the realm of traditional legal analysis. But the difficulty extends much deeper than this. The aboriginal peoples of Canada have had virtually no input into the creation of the Euro-Canadian legal system, which for most of them is a foreign imposition.18 The “land claims business” should be turned over to an independent tribunal and to the First Nations, to people who know something about aboriginal history and, ultimately, who would adopt aboriginal concepts of justice. Sometimes, First Nations wish to decide for themselves whether

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they want to proceed with a court action on their aboriginal title and land rights. Sometimes, obviously, as was the 2006–09 situation in Caledonia, they have no choice. They must resist. They must respect themselves, their history, and their cultures and act to continue to exercise their rights. If they are charged, they must defend themselves in the courtroom. Even including these exceptions, this method might not be the right one to pursue in the long term. Why can we not build fairness into the process? Surely this is not a naive and hopeless perspective. Sometimes, aboriginal people end up in a legal or political cul-de-sac. They have no choice but to adopt civil disobedience to exercise their aboriginal title and rights. This can be done without breaking any laws. This is exactly what occurred in the Temagami blockades of 1988 and 1989.

7

The Temagami Blockade of 1988

The Temagami blockade of 1988 is primarily remembered in Southern Ontario as being about environmental issues in which non-aboriginal environmentalists tried to prevent the construction of a logging road in the Lake Temagami area. The environmentalists were arrested and thrown into jail by the Liberal Government of David Peterson. While there is some truth in this overly simplistic view of it as a non-aboriginal issue, the actual events were much more complicated and interwoven. For one thing, there was more than one blockade; there were three in 1988–89. And the non-aboriginal environmentalists only joined the blockades relatively late, in autumn 1989. They were soon arrested by the Ontario Provincial Police and were later tried and convicted. Some went to jail, including an ndp member of the Ontario Legislature. Bob Rae, then leader of the opposition, made a token appearance in support of the non-aboriginal environmentalists and was also arrested. Temagami, in spite of the road being built in 1989 and the signing of the Treaty of Co-Existence with the taa on 23 April 1990, became an election issue during the “terrible summer” of 1990.1 In part, Temagami was a symbol of what was wrong with the Peterson Government and at least partly why the government was so badly defeated early in September 1990. However, there were two other taa blockades in 1988 and 1989, and they were entirely separate. The first taa blockade began in spring 1988 and lasted until early December of that year. The next year the taa set up a blockade that lasted until Remembrance Day. In 1989, the non-aboriginal environmentalists set up a separate blockade on their issues, which, although they overlapped in their focus on the construction of the Red

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Squirrel Road extension, were different. The taa’s primary concern was their homeland, N’Daki Menan, and its protection, as it had always been. The blockades were another instrument to defend their lands in the Temagami litigation, much like the 1973 cautions. The non-aboriginal environmentalists’ main concern was preventing the government and the logging companies from cutting the old growth forests of red and white pine in the Temagami area. The taa were not against cutting the red and white pine as long as it was cut down in a careful and selective method to maintain a sustainable harvest. In addition, quite rightly, they objected to the fact that the cutting of timber on their homeland was taking away part of their heritage without any compensation flowing to them. Some commentators have pointed out that, after the blockades were over, the differences in the approaches of the taa and the non-aboriginal environmentalists were philosophically vast. The latter held as their major premise that they were acting to preserve the “wilderness.” For the aboriginal people, the concept of “wilderness” holds no meaning. It is a question of use: Where there is a human presence, the land has instrumental use-value, befitting shallow ecology. Where there is human absence, the land is thought to have intrinsic value befitting deep ecology. Thus traditional deep environmentalist arguments for preservation are premised on the degree of human absence-on the wilderness premise.2 The non-aboriginal environmentalist perspective had no room in it for the taa or for the uses they have had for the “wilderness” for more than six thousand years. It denies and actively erases their presence in their own homeland. Moreover, the taa presence actually contradicts this environmentalist view.

The 1988 Blockade The issue of the taa blockade of 1988 concerned aboriginal spirituality and sacred places and, above all, people and their conflicting uses of the lands and waters in the Temagami area. It was also a large learning experience for the non-aboriginal environmentalists. Temagami cannot be seen as an environmental frontier:

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We need to accept their [aboriginal] proposition that indigenous peoples continue to have an ethic of the land, as they claim, one that is respectful in ways that we can barely comprehend. What is needed is a new compact that allows cultural energies to be fused together. To realize this fusion requires of the Euro-Canadian majority a humility in recognizing the limitations to its past vision of land use.3 In this sense, there is no “wilderness.” It has come to be defined as an “uncultivated tract of land.” Without the presence of human beings, it is defined as nature. For aboriginal people, nature is mindscape and landscape conjoined. A wilderness park is then also a meaningless construct of the wilderness premise. A “park” is also a European concept that dates to the thirteenth century, meaning an “enclosed tract of land held by royal grant or prescription for the chase.” Parks are established for the use of non-aboriginal people for their own recreation. In Ontario, parks are relatively recent phenomena – just over one hundred years old. Originally called “primitive” parks, wilderness parks have only been created for the past thirty years in Ontario. Lady Evelyn Smoothwater Wilderness Park in the Temagami area was established by the province only in 1971. Inside its boundaries is Maple Mountain – a sacred place of the taa for more than six thousand years.4 These places also include those designated as parks such as Lady Evelyn Smoothwater, Quetico in Northwestern Ontario, and Polar Bear in the James and Hudson Bay lowlands. It is scarcely surprising that many of the current aboriginal issues regarding sacred places occur in “wilderness parks.”5 Temagami has never been a wilderness. It is a homeland. The Temagami blockades were not about a “road” or the preservation of a “wilderness.” They had everything to do with the diametrically opposed uses of the lands and waters by aboriginal and non-aboriginal people, whether they were environmentalists or not. The taa took action to protect their Motherland in spring 1988. Ontario had already signalled its intention to build the Red Squirrel Road extension. The road was not new. It was to be an extension of an existing logging road, which had been contemplated since the 1970s. Originally, it was called the Johns-Manville Road (originally named after a private company). This road was completed in 1966.6 The extension had had a twofold purpose: to throw open the last remaining stands of old red and white pine forest to the lumbering interests and to

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break the back of the cautions and hence the land claim. The resistance was swift and immediate. The taa camped out on their lands at the north end of Lake Temagami where original road ended and the new extension didn’t yet exist. The omnr took the position that the caution did not apply to land used for forestry, just to the narrow first registration of Crown patents or leases or the staking and recording of mining claims. The taa decided to test this interpretation after Liberal Minister of the Environment Jim Bradley signed an order under the Ontario Environmental Assessment Act. This order allowed the omnr to begin construction of the Red Squirrel Road extension in April 1988 without an environmental assessment of how the construction of the road and extensive logging would affect the area. This Liberal Government action was one of the plethora of reasons that brought it down within only three short years after its election with a majority government in 1987. In summer 1987, a local lumber company, William Milne and Sons Limited of Temagami, told the senior omnr officials that it needed the omnr’s authority to begin logging a new area south of Lady Evelyn Smoothwater Wilderness Park or else the company would have to close down altogether. In the middle of the provincial election, Kerrio authorized the company to begin logging an area of close to three square miles but did not grant it the right to construct an access road into the area to get the timber out. It was a choice between jobs in the forest industry or protecting the forest and the environment. When Kerrio was faced with considerable opposition, he stalled. Finally, in December 1987, he appointed the then president of Laurentian University, John Daniel, to head a working group and submit a report by March 1988 on how to resolve the conflict. The working group failed to reach any agreement, and it ceased functioning by early March. Daniel submitted his own recommendations to Kerrio without a consensus. This was a premonition of things to come. The issue refused to go away. Seemingly immune to the opposition, which they consistently underestimated, senior omnr officials used their authority in order to clear the way for the road extension. A Cabinet submission was approved by the Cabinet Committee on Resource Development in March 1988 and by the Ontario Cabinet at the end of that month. All that remained was to make the announcement. This was done after Bradley signed the order. Why did Bradley sign the order in spring 1988? He had many alternatives. His staff in the Environmental Assessment Branch of the Ontario

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Ministry of the Environment (omoe) had completed their environmental assessment (ea) review of the omnr Red Squirrel Road extension proposal and found that it complied with the legislation. However, certain conditions were put on the road construction to protect the immediate environment. But the larger issue of the effects of logging on the old growth forest remained outstanding. Although the ea review focused only on the sixty-six-foot right of way and not on the impact of the logging that would take place as a result of the extension being built, Bradley and his staff were overwhelmed by the number of applications demanding a full environmental hearing. His ministry staff were opposed to beginning construction without a full-scale environmental hearing. He could have called for such a hearing. He could have delayed signing the order or not have signed it at all. The order he signed permitted certain environmental conditions being applied only to the right of way. The major environmental effects were not on the narrow right of way but the impact of the logging and the construction of the road throughout N’Daki Menan. The tribal Motherland was to become a resource frontier. Bradley was a political neophyte and a junior Cabinet minister. He did not take the advice of his own senior officials not to sign the order. Instead, he seems to have bowed to the ludicrous arguments concocted by the omnr officials and by Kerrio, his Cabinet colleague, that the issue was only an omnr road and not an aboriginal issue. He seemed to have been bought off at the political level by Kerrio in an overly simplistic balancing act. In exchange for going ahead with the Red Squirrel Road extension, the omnr would accede to the demands of the environmental lobby and would ban “non-conforming” uses, such as commercial logging, hunting, and trapping by non-aboriginal people in provincial parks. Aboriginal people would continue to exercise their traditional activities within the parks. The latter was not a “gift” to aboriginal people, since they had always done so whether they were allowed or not by the province to do so in the parks. In addition, as a large sop to the environmentalists, Kerrio announced the establishment of fifty-three new parks that were to be put into regulation within one year. In the Temagami area, Kerrio stated that three new waterway parks would be established on the Obabika River, at Solace Lakes, and on the Sturgeon River, which would add over one hundred square miles to the park system. Once these were linked to Lady Evelyn Smoothwater, there would be a “circular canoe corridor” of 225 kilometres. After adopting the primary recommendations of the Daniel Report, Kerrio also promised to set

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up a model management advisory committee for the area, even though the last one led by Daniel had utterly failed. Bradley then stated the government’s intention not to hold an environmental hearing on the Red Squirrel Road extension but instead applied twenty-nine conditions on its construction. Although, by this time, positions had polarized, Bradley naively stated that he believed “this result[ed] in a fair and balanced policy serving the needs of Temagami.”7 By taking a compromise position, Kerrio and Bradley ended up alienating everyone with their overly simplistic bits-and-pieces approach. And, in the end, it did not resolve the issue. The lumber industry, like other sectors of the North American economy, was undergoing a fundamental restructuring. There were too many small companies in the Temagami area, being artificially kept up by government loans and assistance with insufficient trees to make them profitable. Only months after they had made the decision did the omnr do the work necessary to discover that Milne was not profitable and was going to go under whether the road extension was built or not. The political fallout was large. The historian Gerry Killan has aptly summarized the reaction of the taa and the Temagami Wilderness Society: “The Liberal compromise was neither fair nor balanced. Both the environmentalists and the Indians believed that their primary concerns had been sacrificed for the sake of the preservation of natural areas elsewhere.”8 The Milne Lumber Company went under by Christmas 1988 and the five hundred jobs were lost anyway. The province had been propping up such industries for many years, and they were no longer economically viable. With the blockades occurring over the next year and a half, there would have been ample time to hold a major environmental hearing on the Red Squirrel Road extension and the larger Temagami issues. It would have been both cheaper and faster in the long term to have held this full-scale environmental hearing. This was a practical and reasonable approach. It took the provincial government two years to extricate itself from the mess created by Kerrio and the omnr. In retrospect, this was a huge political blunder by the Liberal Government. The decision to construct the Red Squirrel road extension went through Cabinet when Scott was out of town and absent from Cabinet. It was a political end run by senior omnr staff. The omnr submission that went to Cabinet stated, incredibly, that the building of the road extension would have no general or specific impacts on aboriginal affairs in the province and none on the taa, their land rights, or the outstanding litigation on the

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Temagami land claim. Scott’s advisors did not see the submission until after it had been approved. With this approval, the omnr bureaucracy got its revenge for the first taa settlement proposal. The omnr must bear the responsibility for the millions of dollars spent on constructing a road that was the subject of three blockades and the costs associated with them – a $4 million road that has never been used as intended. Kerrio was a “former businessman in Niagara Falls, an angler and sport hunter, boating enthusiast and occasional canoeist, and a cottage owner in Temiskaming.”9 In fact, Kerrio’s cottage was located within the Temagami land claim area. This detail was not well known. But he never absented himself from the Cabinet discussions on the Temagami issue, although he had a clear conflict of interest. It should be noted here that the “land claim” that was being litigated did not of course affect Kerrio’s cottage or the land on which it was situated. Nor was it affected by the land cautions. The “land claim” litigation concerned only Crown lands and not lands that had previously been patented by the Crown. Nevertheless, the conflict of interest was real insofar as the cautions and the “land claim” litigation created considerable uncertainty and depressed economic development and land values in the area. Kerrio also had no empathy with aboriginal people. He met with them only once during his tenure. He was an utter pawn of the bureaucracy and of the non-aboriginal hunting and fishing lobby groups. For example, in 1986–87 Kerrio allowed the omnr senior bureaucracy to ditch the proposed Ontario-wide fishing negotiations by artificially creating a racist backlash led by Ontario’s negotiator and other senior officials. The same results, in terms of the racist reaction to the Algonquins of Golden Lake land claim in 1990–91, can be seen as well as in fishing. The aftermath of the failed fishing negotiations with the Chippewas of Saugeen and Nawash, the litigation and the court judgement in favour of the latter, also fuelled the reaction of white racists. The fishing negotiations failed, and the local ones with the Chippewas of Saugeen and Nawash resulted in a negative court decision for Ontario. The omnr bureaucracy and its authoritarian methods have not changed whatever government has been in power at Queen’s Park. After the taa’s blockade was thrown up at the north end of Lake Temagami, the omnr officials claimed that they had not been prepared for either the blockade by the taa or the outcry from the environmental groups, especially the Temagami Wilderness Society. This stance lacked any credibility. But the strategy was strikingly similar to that used by the omnr officials in the fishing negotiations between 1982 and 1987. To build the

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road, it was necessary to create another artificial issue, a scapegoat: the land claim and the taa. A racial backlash against the taa would be concocted if they opposed building the road, as of course they did to protect their homeland and their “claim.” In the end, this omnr strategy failed. In response to the blockade, onad staff refused to negotiate the land claim, which was then in the courts on the basis that the road extension issue was an environmental issue. It was not a land claim. The omnr was hoisted on their own petard. The issue was made worse when the environmental groups joined with the taa in support of the issue, if not on the blockade, over the next two summers. Everyone, all their former enemies, including many academics, now proceeded to gang up on the omnr and the province.

Business as Usual: Reaction from Queen’s Park The taa set up their blockade on 1 June 1988. That day Chief Gary Potts explained the taa reasons for establishing the blockade: “If our land dies, we die … This land is our crown. This land, along with the seasons affecting it, is our touchstone to past life and the gateway to future life, both human and non-human.”10 The first blockade lasted until 8 December 1988, when it was ordered removed by an injunction of the Ontario Court of Appeal. This court, at the same time, ordered work halted on the road extension, except for surveying with a transit and a chain. This was to prevent damage to the land while that same court was deciding the Temagami land claim case. At Queen’s Park, the initial response to the event was to hold an emergency meeting. It included ministers, their deputies, and senior provincial staff. It was the first of many such committee meetings on Temagami. This committee gradually became institutionalized as one that addressed aboriginal issues on an emergency basis (Oka and Ipperwash would follow). Usually ministers were not included in the discussion, but they were always, if possible, briefed before the committee met. Their views were placed before the committee through their senior officials at the meeting. Officials from the Premier’s Office were also members of the committee and acted only as observers. The purpose of the meeting was to address the issues flowing from the blockade of the Red Squirrel Road extension on that day. The omnr had a report prepared, and it was presented by Mel Crystal, then their coordi-

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nator of Native Affairs. His advice was that it should be “business as usual.” It was, he reported, a “non-event,” a “friendly gathering.” There was no public access to the area because of a gate across the proposed right of way. It was not “news.” Crystal observed that it was not a large media event and there were only a few television reporters present from Sudbury. The taa had issued a press release “two pages of rhetoric” (in Crystal’s words) stating that the road was now “closed forever” and that they had cut down a few trees across from where the right of way was to be constructed. He reported that there was nothing in this document that gave any indication as to what the taa “was seeking.” More than one hundred years after the province said no to the reserve at Austin Bay, their officials still did not understand the taa. Crystal defined the issue as the “land claim.” If the land claim were to be settled, then there would be no road built through the area. His advice was that the Native Affairs Directorate should offer once again to discuss the 1986 settlement proposal with the taa in exchange for the ending of the blockade. He cautioned that the province should exercise “patience and understanding.” Crystal posed the question whether the issue for the taa was the “land claim” or the “environment,” i.e., what was the impact of the construction of the Red Squirrel Road extension. On the latter issue, the omnr had provided full consultation and the taa had not participated in it. The construction of the road extension would not “harm the land claim.” If the taa were not “removed” from the blockade for “breaking the law,” the omnr officials were concerned that their minister would “look weak and ineffectual.” The timeline for ending the blockade was short. The survey crews would enter the area to begin their work on 9 June and the actual construction was scheduled to begin at the end of that month or early July at the latest. When Crystal had completed his report, Kerrio spoke. He was adamant that the omnr would not back away from the “decision” to construct the Red Squirrel Road extension. The blockade must be ended. The opp would be there to prevent any “breach of the peace” while the blockade was underway. The first thing to do was to give the taa notice that they were camping illegally on “Crown land” and that they must leave in twentyone days. In the meantime, Kerrio wanted to have the AG prepare a “fullblown application” of an injunction before the Supreme Court of Ontario to have the blockade ended. This action would have to show that irreparable damage would be done to the Milne Lumber Company and the local economy if the injunction were not granted. This would be difficult to prove

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before a court. Kerrio ruled out some of the other viable options, which included negotiating part or all of the land claim, testing the blockade by having the work crews try to cross it, or simply ignoring the blockade and do nothing until the taa left when the snow began to fly. This was a curious notion. It was assumed by the bureaucracy at Queen’s Park that the taa did not know how to cope with winter or snow in their own homeland. All of these options hinged on the fundamental premise that there would be support for the Milne Lumber Company and that the province would not “pull the plug” on it. It was recognized that if the province were not to support Milne, then the province’s options, wholly based on this context, would be dramatically different. In any event, it was unlikely that the province was going to take any major steps early in June since the world economic summit was being held later that month in Toronto. The federal government did not want to be embarrassed in front of an international gathering hosted by Canada. The blockade would then become international news. The relationship between the taa and the environmentalists was also discussed. It was recognized that the latter were not on the taa blockade and would not likely join in it since they were preparing a court action against the province on the Bradley decision to sign the order to permit the road construction without a full-scale environmental hearing. The committee decided that it would take the following steps for the rest of the month: the omnr would continue to monitor the blockade from its District Office in Temagami; formal notice would be given to the federal government of the blockade; AG staff were to prepare to go to court for an injunction to lift the blockade. A communications strategy had to be developed to explain what the government was doing in response to the blockade. This was especially true for Northern Ontario, which, from David Ramsay’s perspective, indicated that the province was committed to doing something in terms of jobs and the economy. David Ramsay, formerly a member of the Ontario ndp, crossed the floor of the Legislature and became a Liberal shortly after the first Temagami settlement offer was made on 30 September 1986. He subsequently became the Minister of Correctional Services for the Peterson Government. He was the mpp for Temiskaming. Ramsay was not present at this first meeting, but he sent one of his assistants to voice his concerns. Lastly, a Cabinet submission would be prepared by the omnr to move ahead with the injunction to end the blockade. The issue remained the road and not the “land claim.” The omnr had failed to “pass the buck” to Scott to negotiate its way out of the taa blockade by negotiating the “land

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claim.” Once again this was an attempt to play the racial card in Northern Ontario – to blame the “other,” the taa, for the loss of jobs and a faltering Northern Ontario economy, which were non-aboriginal issues. What was missing from the omnr report was “time.” It was not at all clear how much time was needed to construct a few kilometres of the road extension during the summer and fall construction season. One could only negotiate an end to a blockade by negotiating time. The proposed construction schedule was very different than the actual time needed to build the road. After the meeting, the omnr agreed to brief other provincial staff on the situation. We met with them in Toronto two days later. The facts were clarified at that meeting, and they presented a very different scenario. Only six kilometres of road would be built this season. In fact, the omnr had to wait until after 18 June when it was expected to receive approval in writing to proceed with the construction from the Ministry of the Environment. This was the official approval of the undertaking under the ea Act. The omnr did not expect to see actual construction on the road begin until late July or early August. The preliminary work of surveying would occur first, and the surveyors would not have to cross the taa blockade. They work could begin from the west end of the right of way. The taa blockade was at the east end of the proposed right of way, where it would connect to the existing road. There would only be a potential confrontation when the road construction was almost completed. It was expected that, if the road was not built during the 1988 construction season, the political fallout would be that Milne Lumber would go bankrupt, forcing the mill to close and throwing five hundred workers out on the street. Other options were thrown out, such as ignoring the blockade, mediation, negotiations, testing the strength of the blockade. Instead, the force of the law would be used through an injunction to end the blockade.11 The committee met again the next Tuesday. The omnr was so used to having its own way around the province that it did not have any experience with organized resistance (other than its own), and thus did not know how to respond. The ministry became erratic and a captive of the taa. From the meeting on 1 June, within one week, it had moved from a position of demanding an injunction to getting the taa to end the blockade to a position of asking permission of Cabinet to negotiate an end to the blockade. The omnr prepared a draft submission to Cabinet on the taa road blockade. It was circulated and then discussed at a Temagami committee meeting the next Tuesday, 7 June. Remarkably, given that the discussion a

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few days earlier had been the opposite, the draft paper recommended that the province negotiate a resolution of the taa blockade on the basis of the “land claim.” The omnr staff finally checked with its lawyers and discovered that the taa blockade was not, in fact, illegal. There was no omnr sign posted against trespassing in the area. In fact, unless posted otherwise, anyone had a right to camp on Crown lands in Ontario. Formal notice had to be given under the Public Lands Act before any legal action could be taken. This would take months. It was time to talk to the taa and negotiate an end to the blockade. The province would offer the taa land – Lady Evelyn Smoothwater Wilderness Park – as a partial settlement of the land claim in exchange for the removal of the cautions and the ending the blockade. There was considerable discussion on the precedent the proposed negotiations would set for other situations. This draft submission never went to Cabinet. But nothing was done for the rest of the month. No surveyors went into the area, and no construction had begun. No action was taken to try to talk to the taa. Instead AG lawyers prepared for court seeking an interim injunction to end the blockade. This was extremely difficult to get since they had to prove that irreparable harm or damage would be done if the interim injunctions were not granted. In a briefing with Scott, on Wednesday, 22 June, Mel Crystal reiterated the need to go slowly. If the province suddenly “hammered” the taa with an injunction, it would lose credibility. Moreover, Ontario would be accused of not being in a position to bargain in good faith but only with a legal gun to the taa‘s head. What was needed was an environmental mitigation agreement that would address the concerns of the taa regarding the road extension and its effects throughout the land claim area. This agreement could later be rolled over and into a larger “land rights” agreement with the taa. David Ramsay agreed to call Potts on this matter that weekend to sound him out on this proposed negotiations. The danger for Scott was that the province would be negotiating while the blockade continued. It was far preferable to begin negotiations at the same time as the blockade was lifted. But that was not to be. The province thought that it needed to build the road, and this would be where things ended up almost two years later. For some reason, early in July 1988, Krasnick and George Tough, then the deputy minister of the omnr, decided, or perhaps were sent by the premier, to listen to Potts on the 4 July weekend. It was a useless exercise. They had nothing to offer, and the time and effort of two deputy ministers was wasted. Usually in negotiations, you do not send high-ranking officials just

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to listen. They had nothing to negotiate; they apparently had no mandate. Potts told them about their history and why they were blockading the place, but the directorate had known all that since the cautions were placed on the Temagami area fifteen years before. It is not clear what became of this action, and Krasnick and Tough returned empty-handed. No interim, or any other, injunction had been sought. No survey crews went in, and the blockade was not tested. It was a classic aboriginal defensive “war” to see who would blink first.12 Ontario blinked first, and then again and again.

A Successful Action of Peace The taa blockade was successful. It was purposely kept simple, and completely separate, from the non-aboriginal environmental lobby. The taa continued to camp legally on their land where the road was to be constructed and where they could not be arrested. They were not blockading a road; only the place where there was a right of way where the road was to be built. Thus, they were doing nothing illegal. They were also in the middle of the Temagami forest; which was a difficult and costly location for them to be arrested. Most importantly, the province was fearful of a public outcry if it sent in the opp to arrest aboriginal people while their claim was before the courts. Led by the knowledgeable Deputy Solicitor General Stien Laal, the opp continued to refuse to arrest the taa: they were doing nothing illegal, and the cost of arresting them would be too high, estimated at $2 million a day. Deputy Solicitor General Laal had been a claims negotiator in Northern Canada and was aware of the tactics used by the taa. He was also getting good advice from the Ontario Provincial Police, who advised moderation and caution. This advice by the opp is similar to their actions taken in summer 1990 during the Oka crisis. But it is in sharp contrast to the actions taken by the opp at Ipperwash in September 1995. The change in the opp actions in September 1995 could only have come directly from the Premier’s Office. The taa had publicly stated its intention of continuing to maintain their camp with taa members – over eight hundred strong, men, women and children – even if they were going to be arrested. Scott and Bradley cooperated in an attempt to resolve the issues over the next two years. It was an exercise in political damage control by the provincial Liberals. The focus was to be on the environmental issue, for which Bradley was ultimately

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responsible. The onus was to be kept on the omnr for getting the government into the mess in the first place. Once the omnr ran out of solutions, a balance could be created among the Temagami groups. A broad environmental hearing on the road, which should have been done in the first place, could then be undertaken. On Tuesday, 9 August, the Temagami committee met again in room 363 of the “Pink Palace,” the Ontario Legislative Building. In two months nothing had happened. The blockade still remained, and, unless the blockade was ended soon, it was clear that the Milne Lumber Company would go into receivership. Evidently, the ministers had met earlier with the premier, who saw the issue as one which involved the present and future of Northern Ontario. Peterson gave the lead role to his minister of Northern Development and Mines, René Fontaine. He was to meet with the Temagami committee and come up with recommendations for Cabinet the next Tuesday, 16 August. By this time the locus of the decision-making had shifted substantively from the omnr to the Ontario Ministry of Northern Development and Mines (omndm). Fontaine, a lively and forthright Franco-Ontarian from the north, saw the issue clearly as a pure economic decision. He had a good deputy minister in Brock Smith as well as a knowledgeable staffperson in Bart Feilders. Fontaine spoke eloquently at that meeting about Northern Ontario from his own experience. It was not an issue of “Native or nonNative people” but one of economics. If Northern Ontario was to continue to have a future, the issue was the supply of wood, otherwise it would be “Good-bye Joe.” He emphasized that they were talking about the survival of sawmills and of Northern Ontario. Without economic development, no one (meaning no non-aboriginal person) would go to live there. There would be no need for a road at all and then we might all go back to the “olden days,” which he described as days “of pigs and frost and roads.” The committee was completely mystified by his inclusion of the word “pigs,” seemingly to indicate that pig farming was a significant part of the economy of Northern Ontario (which it wasn’t). The issue was clear, assuming the blockade would continue, a road would not be built this year, and there would be no wood supply for the Milne Lumber Company. Was the Milne Lumber Company going to go under? If yes, was Ontario going to buy out Milne? In strictly dollar terms, what would Ontario’s liability be to Milne? Ontario had been propping up Milne for years with government loans and grants totalling $1 million annually. The company also owed the Bank of Nova Scotia about $5 mil-

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lion. If the province wished to buy out Milne and save the jobs, it would cost at least $6 million to do so. It was seen to be much cheaper to do that than to resolve the land claim. Bart Feilders distributed a paper that had been released by the taa earlier that month. He observed that it appeared that a provincial offer would not have any impact on the land claim. Potts and the taa were raising the stakes on the blockade. The paper indicated that the taa had never surrendered or extinguished their title to their homeland. It called for a “Treaty of Co-Existence” between the taa and non-aboriginal governments. The paper outlined some principles on which this treaty would be based. The taa’s proposal was seen as a non-starter to begin negotiations on the road since it covered the entire four thousand square miles of N’Daki Menan. The province saw this proposal as a tactic to negotiate both the claim and the road. Consensus was reached by the Temagami committee. Feilders was to prepare a paper to go to Cabinet by Monday, 15 August. It would then be circulated on Friday, 12 August, and discussed by the committee members, revised, and then sent to Cabinet after a meeting of the deputy ministers. It was time to cut the provincial losses. It was a large defeat for the omnr senior staff and George Tough. They had badly mismanaged the road extension issue as well as the blockade and the file was now taken away from them and given to the junior ministry of Northern Development and Mines. The ineffectual Tough, Crystal, and Krasnick were now replaced by Fontaine, Smith, and Feilders. The agreed-upon assumptions to guide the development of the paper included the following: (1) the taa blockade would likely remain; (2) the Red Squirrel Road extension could not be built that construction season, and the earliest it would be built would be the following spring; (3) the province did not want to negotiate the land claim as a way of ending the blockade; (4) Milne Lumber could not be saved, and it would go under; (5) Ontario would be liable for about $6 million; (6) the Temagami Wilderness Society would lose their legal case because no road would be built; and (7) the province would have to concentrate on economic renewal for Northern Ontario. Three recommendations flowed from these assumptions: (1) The province would attempt to provide Milne with loans and a wood supply elsewhere until the next spring, but if the company went under Ontario would not come to its rescue; (2) the province would begin to prepare for economic renewal for Northern Ontario communities, focusing on the Temagami area; (3) the province would reaffirm its commitment to

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negotiate the Temagami land claim. Feilders did a fine job on the paper. He reduced the basic questions on the outstanding issues to only three: 1 What is the province going to do in the Temagami area? 2 Whose land is it? 3 How do you negotiate with the taa? The provincial options were reduced to do nothing, negotiate, or use coercion, e.g., a court injunction. The deputies agreed that nothing had been done to date, which ruled out the first option. It was decided to recommend that the province negotiate an interim resource development agreement with the taa. As a backup they were also instructed to prepare a court injunction if the negotiation option failed. Smith outlined the Ministry of Northern Development and Mines’ views on the proposed negotiations. Its role would be one of mediation. The province would begin by talking with the taa on timber management issues and the roads contemplated in the Temagami area as resource development activities. The substance of the discussions could then also include the land claim and the Treaty of Co-Existence that had been proposed by the taa. The opening provincial position would be that the taa would have an exclusive interest in a range of three hundred to one thousand square miles of the area. The rest of the area, except for already patented land, would be “zones” containing “different levels of interest and authority.” omndm saw the “zones” as eventually being examples of various forms of cooperative management. After considerable discussion, with Tough still reiterating the hopeless omnr position that the province “do nothing,” it was agreed that the recommendations be sent to Cabinet for its consideration. Feilders was given a mere two weeks to negotiate with the taa on forest management issues as they pertained to the taa blockade as well as a possible framework for a settlement of the land claim, i.e., the proposed Treaty of Co-Existence. This was an impossible assignment. It was remarkable at this time that the province so readily accepted the notion of the Treaty of Co-Existence. But then again, Queen’s Park was out of ideas and had been held captive by the taa since early June 1988.13 The Temagami issue went to full Cabinet again on Tuesday, 16 August. The outcome was that the province, after ten weeks of dithering, decided to negotiate with the taa to send in a “Redcoat.” This was an ancient,

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time-honoured process of addressing aboriginal issues. It would be used again in Northern Ontario in summer 1990. The provincial negotiator would be Feilders. This was a huge compliment to him, and without a doubt he was the best negotiator on aboriginal issues that the province had at that time. His two-week assignment as the provincial negotiator for Temagami lasted five years. When he was fired by the ndp government in 1993 for political reasons emanating from the premier’s office, things soon fell apart in the settlement negotiations. Feilders could discuss anything with the taa, the land claim, the blockade, the Red Squirrel Road extension, or any other roads. The only restraint put on him, and it was severe, was time. The two-week deadline was seen to be the last start date beyond which road construction could not be completed. Instead of his plans to take a well-deserved three-week vacation, Feilders went to see Potts and camped out on Bear Island. Potts dismissed him as another civil servant who would come for the day and then leave. But, much to Potts’s surprise, Feilders stayed. He listened. Two weeks passed. He ran out of his two-week vacation time. But he stayed over the Labour Day weekend. Three weeks passed before he had to return to Toronto. The two men reached a position of mutual respect. A basis had been laid for the Treaty of Co-Existence that would be signed on Earth Day in April 1990. But there was still some tough sledding to come in the months ahead.

The Creation of the Wendaban Stewardship Authority The Temagami committee met with Feilders on Wednesday, 7 September. He had negotiated a proposed Forest Authority with the taa in three weeks. The proposal was seen by the taa as a model for resolving the land claim through negotiations. The area to be covered by the Forest Authority would be the same area that was covered by the land claim. The proposed body would prepare timber management plans and allow for two roads into the area for harvesting the timber. “Living agreements” would be signed by the taa and the province as an outgrowth of discussions on the Forest Authority. There would thus be direct control over the way in which the forest was harvested. The omnr would pay for the Forest Authority. In exchange for the Forest Authority, the taa would end the blockade, if there were consensus at its annual general meeting later that month.

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It was a remarkable achievement for any negotiator. The proposed Forest Authority would eventually become the Wendaban Stewardship Authority. Feilders explained that the taa would be holding their annual general assembly at Bear Island on 23–25 September, and he needed to know before that time whether the province would accept such a Forest Authority. There were two main issues for Ontario. The first was that the province had existing legal contracts with private lumber companies over the entire Temagami area. Before they had left office in 1985, the Tories had seen to it that there was not one stick of timber in the province left unlicensed. If licenses were not to be renewed when they came up for renewal, then the province would have to be prepared to act. If licences were to be bought out, then the province would have to assume liability. It was soon clear that the taa proposal was seen by the omnr senior staff as a direct threat to their hegemony over the natural resources of the Temagami area. The omnr raised specific questions about the relationship between their Forest Management units and what was being proposed. Why was it such a large area? Why could it not be two hundred square miles? Could sustainable development still be possible in a smaller unit? There would be duplication and overlap between the omnr planning and operational analysis in their forest management units with that of the proposed Forest Authority. The debate went on and on. The omnr was trying to scuttle Feilders’s deal and do nothing, hoping against hope that the blockade would be ended by an injunction. At another meeting on Friday, 9 September, omnr staff continued to place obstacles before the taa proposal and on how it was to function in the context of their existing commitments. Their message was clear: it could not be done. Then the omnr staff raised another issue. It was not only the Red Squirrel road extension that was at issue. At the south end of Lake Temagami, the omnr had other commitments to Goulard Lumber Company to construct another road, called the Goulard Road. Construction on that road was to begin on 1 October. What would happen if the negotiations succeeded on the Red Squirrel road extension, and the blockade was to be lifted there and then followed by another blockade of the Goulard road shortly thereafter by the taa? On Tuesday, 13 September, directorate staff briefed Scott on the Temagami issue. He was skeptical. He did not think that the taa would accept the provincial position on the Forest Authority. His view was that the issues were extraordinarily complex and more than land was involved. He advised us to “stay in the reeds” for now to see what unfolded. He thought that

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Potts would not say no to a provincial offer, but that he would not say yes, either. Scott argued that Potts was too clever a negotiator to let the province gain the leverage that he already had by the presence of the taa on the blockade. The taa‘s best position was, in his view, to remain on the road and keep raising the stakes. He wanted to stay away from this “let’s make a deal crowd.” His reasoning was that for negotiations to be successful there had to be a true balance of interests on both sides. At the moment, the balance was in the taa‘s favour, and the taa knew it. On all of these questions Krasnick offered no solutions and hardly offered any advice on meetings. Perhaps he was privately giving it to Scott and the premier. But this was unlikely and a strange way to do business – not a team approach at all – and entirely out of keeping with his federal committee approach. Whenever the proposal was raised in committee, he always introduced the potential role of the federal government and what their position would be on the matter. But the federal position was well known – this was a provincial land issue. The issue involved the construction of a provincial road extension on Crown land. The land claim was in the courts. The federal government had sided with the province in the court case and by this time had ceased funding the litigation. On 5 October, Krasnick and I took a flight to Ottawa to discuss the Algonquins of Golden Lake comprehensive claim with federal government officials. In that meeting, Krasnick asked the federal government people about Temagami. They had not forgotten the 1986 settlement offer. Westland almost laughed at him and told him the issue was certainly over the province’s title to land. It was not a federal responsibility. Moreover, he stated that he did not believe that Potts had a mandate to negotiate with the province. Potts was simply dragging out the exploratory discussions without a concrete proposal in view, nor was any contemplated. It was a case of just bad faith negotiations, or as he put it “rotten tactics.” Westland further said that the province was being completely fooled by Potts and the taa. They had no desire to reach an agreement with the province. He was, as usual, wrong with this gratuitous advice. We did not discuss Temagami again with federal officials. This meeting shook up Krasnick. He always believed that the federal and the provincial officials had to cooperate to achieve their objectives. He could never countenance bilateral negotiations. This was his primary opposition to Mark Stevenson, our negotiator, and me in the Manitoulin Island unsold land negotiations.14 My advice was to always try to negotiate, to keep talking to the taa and avoid confrontation, to build peaceful negotiations and avoid hardening of

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positions and the necessity for blockades. Scott was right in his assessment of the situation. The taa did not come to any conclusion on the Forest Authority at their annual assembly at the end of September 1988. The province now had to address the issue of the construction of the Goulard Road. The stakes were being raised. This was happening as a result of provincial actions. The taa did indeed have leverage and were resisting these actions and protecting their homeland.15 The Temagami committee met again on 2 November. Nothing had changed. The blockade was still up. The road was still not under construction. There had been no agreement with the taa. Feilders had gone back to Bear Island to continue negotiations with the taa. The Forest Authority was now called the Wakimika Stewardship Council, which had evolved into an interim arrangement until the land claim was resolved. The Council was named after the Wakimika triangle of old growth red and white pine that were intended to be cut down when the Red Squirrel Road extension was completed. The major area of disagreement in the council was whether the geographic area covered by its mandate would be two hundred square miles or the area of the land claim itself, four thousand square miles. The meeting on 2 November was called because a provincial deadline was approaching. Milne Lumber Company had informed the province that the Bank of Nova Scotia was calling in its loan of $5 million as of 1 December. On that date, if the loan were not repaid, the company would go into receivership and thus would be effectively bankrupt. Kerrio stated that the province should be prepared to move ahead to begin construction of the Goulard Road. That had not been done. It was a private logging road, and the company had not moved forward with its plans for construction, apparently wishing to avoid a confrontation with the taa. Kerrio observed that the province still did not have a “major game plan” after all these months with the blockade still in place and still was not prepared to act in the circumstances. There was no consensus at Queen’s Park among either the politicians or the bureaucrats who were now being held captive by the taa. Completely bereft of ideas, things were going around in circles in what amounted to an intellectual wilderness. Ontario could only respond in crisis management fashion to the taa proposals. The committee met again on 9, 14, and 16 of November. The issue of the Red Squirrel Road extension loomed politically larger with each passing day. The Peterson Government, paralysed and refusing to act, was beginning to be seen as having no credibility in

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Northern Ontario, either with aboriginal or non-aboriginal people; 1 December came and went; Milne went into receivership.16 Finally, on 8 December, Scott went directly to the Ontario Court of Appeal (which was reviewing the Steele judgement) to seek an injunction on the road. To bring about some balance to the situation, Scott argued that “what we need is a good loss” as an outcome of Ontario’s application for an injunction. For example, the court may suggest a facilitator to resolve the blockade issue until the land claim appeal had been heard. Or that the court would order the taa to end the blockade and not allow the province to begin construction on the Red Squirrel Road extension until after the Court of Appeal had completed its review of the land claim and had handed down its judgement. And that is exactly what happened. Ontario got its injunction but was, except, for some surveying work, ordered not to begin construction until the Court of Appeal handed down its ruling. There would be no construction until the next spring. The Ontario Court of Appeal did not hand down its judgement on the claim until the end of February 1989. The taa respected the injunction and lifted the blockade, having achieved the objective of preventing the construction of the extension that year to protect its Motherland. For the final time that year we met in room 363 of the Legislative Building. Feilders told us he had talked to Potts about the injunction. Potts had told him that the taa were both angry and disappointed at the injunction and that they had to give up their blockade, but he also told Fielders that they were tired and needed a rest and understood the provincial response. The attention of the provincial government then focused on the workers from the Milne Lumber Company who were thrown out of work when the mill closed. The province also began to look more seriously at the issue of economic restructuring in Northern Ontario for non-aboriginal people. Feilders was requested to continue his discussions with the taa on the Wakimika Stewardship Council while the directorate would try to get the federal government on side in participating in land claim settlement negotiations. There was less than a faint hope of that happening. The reality was that the province would have to wait until the Ontario Court of Appeal handed down its decision. It was now winter and nothing could be done to build the Red Squirrel Road extension or the Goulard Road until after breakup in May 1989. Nothing substantive happened until 27 February 1989.17 Scott kept the omnr off-balance by continually stating as the province’s chief law officer, and the minister responsible for Native Affairs, that the

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issue was not the land claim, which was in the courts and thus could not be negotiated anyway. At the same time he tried to create a balance by seeking a court injunction to end the blockade until the taa had their day in court. The quid pro quo was that the court would also create a legal balance by ordering Ontario not to resume construction of the Red Squirrel Road extension until the Ontario Court of Appeal ruled on their land rights. If the Court of Appeal ruled in favour of the taa, Ontario then would have a reason not to build the road, which happened early in December 1988. However, after the Court of Appeal ruled in February 1989 against the taa, the interim injunction was lifted and Ontario was free to resume construction of the road after breakup in spring 1989.

A Report Card for 1988 As the first year of the blockades drew to a close, what was the report card for the participants? The big winners had been the taa, who had succeeded in protecting their tribal Motherland and their claim. The province had not constructed any roads that it had intended to build to allow for the logging of the Temagami area. The taa would have received an “A.” The big losers were the non-aboriginal people who lost their jobs when the Milne Lumber Company went into receivership. But the company was deeply in debt even before the construction season began in spring 1988. Even if the road had been built in 1988, it is not likely that it would have survived much longer. The company would have received an “E” for more empty promises. Inside government, the omnr was the biggest loser in 1988. They had lost control over land claims, economic development, and even the right to negotiate a forest management agreement with the taa. Their advice to the premier and Cabinet had gotten the province into trouble in the first place in their hurry to push through the Red Squirrel Road extension. Clearly they were deserving of an “F” for dismal failure. The Native Affairs Directorate was of no consequence; it had no leadership and except for Scott, no clout at the senior management level. It would have received an ineffectual “D” – a mere passing grade for an unimaginative non-response to the issues. The directorate was only saved from a failing grade by the experience and the bulldog tenacity of Scott’s leadership.

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The non-aboriginal environmentalists did not blockade the road and stayed away from the taa‘s blockade. They pushed on with their own litigation, however, even though they had little or no chance of winning their case. They deserved a “C” for caring for the red and white pine and sometimes listening to the taa. One big winner was the Ministry of Northern Development and Mines. Fontaine showed leadership, so did Deputy Brock Smith. Feilders was outstanding. He deserved most of the credit for putting the province in a position where it had avoided major expense and confrontation with the taa. While no agreement was reached with the taa, omndm deserved a “B+” for its efforts. Feilders had listened to the taa proposal for the Treaty of Co-Existence and the Stewardship Council. He would continue to play a prominent role in the Temagami blockade of 1989, which was to follow in autumn.

8

The 1989 Blockades and the 1990 Treaty of Co-Existence

The second year of the Temagami blockades – 1989 – was a pivotal one for the relationship between the taa and the provincial government. Queen’s Park remained a captive of the taa and no plan had been made should the taa resist by blockading the Red Squirrel Road extension yet again. While no agreement was reached, and the second taa blockade continued in autumn 1989, a framework for peace was developed by spring 1990 with the Treaty of Co-Existence. In addition, a separate but short-lived blockade by non-aboriginal environmentalists would be set up in autumn. This latter blockade illustrated how successful the taa resistance had been in 1988–89.

Early 1989: Estimating Aboriginal Issues The winter brought respite from the blockades. The construction season would not begin again until after breakup in spring 1989. But there was little or no planning for a second blockade should it come later that year. The omnr still intended to carry on building the road extension. In this atmosphere, came the estimates at Queen’s Park. On 27 February 1989, the directorate was in the “Pink Palace” for the estimates. The estimates are the amounts of money that each government ministry or agency will spend in the forthcoming year, literally an estimate of the cost of items in their proposed budgets and what the money will be used for in the coming year. A legislative committee can review (usually on

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a rotating basis) the budget estimates of a ministry or any government agency and have an opportunity to ask questions about the items therein. The questions and the answers are part of Hansard1 and are recorded like the speeches made in the legislature. The minister, deputy minister, and senior staff are present to defend and provide information on each item in the estimate. It was the directorate’s turn on 27 and 28 February 1989. A bulky speech of thirty-two pages was prepared for the minister to deliver to the committee outlining all the good things that Scott and the directorate had accomplished and were going to achieve with the monies that were requested. If nothing else, and if the committee wished, Scott stated that he was going to read into Hansard the entire thirty-two pages of propaganda churned out for him by directorate staff. It was, even for a bureaucrat, mind-numbing turgid stuff indeed. However, the committee, which included some prominent members of the Ontario Legislature – Tories Robert Runciman and Ernie Eves and ndp members Gilles Pouliot and Howard Hampton – wanted to get on with the questions and agreed to put the speech into Hansard as an appendix to the discussion. By their questions, Runciman and Eves showed that they did not care about aboriginal issues – they went through the motions because they had to be there. The Tory record, of which they were a part, had been abysmal, and Scott took great delight in reminding them of their failures, especially on the Bear Island land rights issues and the court case. The ndp members had the best questions, and their focus was specifically on aboriginal justice and economic development in Northern Ontario. They asked why more was not being done on these issues. They argued that the province was still hiding behind the federal government and “playing a form of federal-provincial ping-pong” at the expense of the First Nations. Scott was a smooth politician and was much more knowledgeable on these subjects than his opposition counterparts; he kept answering the questions with the hard facts at his disposal. He cited the progress made in the Policing Agreements, the Native Justice of the Peace Program (to appoint aboriginal people as Justices of the Peace), the agreements with the Nishnawbe-Aski Nation in the Treaty #9 area of Northern Ontario, education, and the movement towards aboriginal self-government. He noted the record of the Liberal Government on land claims and self-government negotiations at great length. Scott paid, as well he might, special attention to what he had done on the Temagami claim. The government had made a settlement offer in 1986

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of $30 million, of which $15 million could be taken up and used by the taa in land. That amount he estimated would mean the establishment of a reserve for the taa of about 150 square miles. He indicated that the province would again soon make another offer of settlement even if the taa appeal were to be rejected by the Ontario Court of Appeal. Scott rejected Pouliot’s suggestion that, as attorney general and as minister responsible for Native Affairs, he was in a conflict of interest. Pouliot had argued that Scott was contradicting himself and his positions both as attorney general and as Native Affairs minister. On the one hand, as attorney general he was suing the taa for their own lands and, on the other, negotiating a settlement with them. To counter this argument, Scott stated that, in this case, the landowner was the Ministry of Natural Resources, which the attorney general was responsible for defending provincial legislation. However, it is true that, in terms of the Temagami land claim, either in negotiations or in litigation, Scott was calling the political shots. In addition, since he believed that a negotiated settlement out of court was the best way to proceed, he argued forcefully that any settlement offer that was made to the taa must come through the Cabinet and the premier as a corporate decision. Pouliot called him a “juggler.” Scott retorted that if he were a “juggler” as was being suggested, then he was the “best juggler in the business” and Pouliot would have to take what he could get. The ndp members then shifted their questions to aboriginal economic development and asked why the directorate had not spent the $2 million fund for “Native Economic Development,” which had been on their books as a line item since 1985. There was no excuse for not spending the monies that had been set aside. Scott skated on thin ice through that one.2 Krasnick simply could not decide what to do with the monies. Subsequently, a plan was devised and the monies were spent on providing support to First Nations in their negotiations with the province. As the committee adjourned for the day (27 February), we found out that the Ontario Court of Appeal had unanimously rejected the taa case. It was now time to meet and make another settlement offer to the taa and to prepare for the inevitable – that the taa would want to seek leave for an appeal to the Supreme Court of Canada. This would not be automatically granted, but, given the magnitude of the litigation, it was more than likely that an appeal would be granted by the highest court in Canada.

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A New Settlement Offer The Temagami Committee met at 8:30 a.m. on 28 February 1989 to discuss the Ontario Court of Appeal decision. Scott made it clear that, in spite of the fact that the province had won the appeal, now was the best time to make another offer to the taa to resolve the matter out of court. He emphasized that the message that should be given to the taa was that Ontario was intent on acting fairly and justly in the circumstances. He further pointed out that the offer to be made should be just as good as the one that had been made in 1986. He rejected the suggestion that the province should remove the cautions as proposed by Tough, Smith, and Ramsay. His argument was that it was likely that the taa would be granted an appeal to the Supreme Court of Canada, and no court would grant the province the right to remove the cautions while the case was on appeal. He wanted the settlement offer to go to Cabinet the next day and to have it announced in the legislature that same afternoon, Wednesday, 1 March 1989. When the three-person Ontario Court of Appeal ruled entirely against the taa, they strengthened the Steele judgement. Their ruling argued that Chief Tagawinine had represented the taa at the signing of the Robinson Huron Treaty, and thus they were a party to it. The evidence for this historical fact is circumstantial. We really do not know who Chief Tagawinine represented, if anyone. But, in historical fact, there was no formal signing of any adhesion to the treaty by the taa, although one was signed with other groups at Penetanguishene in September 1850. Lastly, the Court of Appeal stated that since the taa lands were within the Robinson Huron Treaty area (although we do not know precisely where that area was since the area was not definitely described in the treaty document, much less surveyed), the taa land rights were unilaterally extinguished by the treaty and by acts of the Crown thereafter.3 I prepared the new settlement offer for Scott. It was an enriched offer of one hundred square miles of land at the south end of Lake Temagami, which included both surface and subsurface rights, which contained rich mineral deposits, thus doubling its worth as compared with the first offer. The settlement offer was approved the next day and sent to the taa, and Scott announced it in the legislature as planned. The offer was to negotiate a reserve at the original site at Austin Bay, located at the south end of Lake Temagami, of one hundred square miles of land and water, which would include both surface and subsurface rights. Ontario also offered to continue to negotiate a model forest management area (of a size to be mutually

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determined), along the lines of Feilders’s discussions with the taa, i.e., the Wakimika Stewardship Council as well as “other considerations,” as stated in the 1986 offer. The offer was not contingent on federal participation. It was for a specific site and a specific amount of land that were to be negotiated. If accepted, it would be the basis for a settlement. But the timing and circumstances were not right. Understandably, the taa were angry with the Court of Appeal ruling, and our offer was immediately denounced by Potts as being insufficient. The site at Austin Bay had been logged over, he said, twice already, and the province was making a lesser offer. He was simply wrong on that score. The primary rationale, of course, was that the taa believed that they had to have their case brought before the Supreme Court of Canada. They felt that they could not let the Steele and the Court of Appeal judgements stand unchallenged. They were right to do so. But, in the end, the cost was high – very high.4 The Temagami Committee met again on Thursday, 2 March. Scott reported that he had called Potts with the provincial offer and that the taa were angry with the ruling and the settlement offer. They would never agree to negotiate on the treaty entitlement issue. Potts was wrong again. He offered, however, to talk again the next week. Thanks to Feilders, at least the lines of communication to the taa were open. AG staff then reported that the Temagami Wilderness Society’s (tws) legal case was moving forward and would be heard in court in April. AG lawyers did not expect that the tws would win their case and also that any appeal would be denied by the courts. They were correct. The omnr, in the meantime, announced that it wanted to continue its survey on the Red Squirrel Road extension as of 13 March. This would take about one month. Construction could then begin in mid-May, after breakup. This left everything the way it had been the year before. The interim injunction of the Ontario Court of Appeal had disappeared when that court had handed down its judgement on the land claim. What would happen when the taa blockaded the area again? Or if the tws lost their case, as expected, in the courts, would they also blockade this, or another, road in the Temagami area? In spite of having “won” in the courts, the Peterson Government was no further ahead on the Temagami issues. No one had any suggestions. Things drifted again. I wrote, “Again! The Red Squirrel Road will never be built! The Road is haunted!” But I was wrong. The road extension was built at an exorbitant cost, but it has never been used as it had been intended. We were not yet out of the woods.5

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Unrest on Goulard Road On 23 March, we met on the Goulard Road issue. This road is located on the southwest side of Lake Temagami. It was not connected to the Red Squirrel Road extension; it was a private road, not a public highway or right of way. The taa had blockaded the Goulard Road where a bridge was to be constructed, and the owner of the road would have to go to court to get an injunction. The purpose of the road was to help harvest the timber in the Temagami area. Feilders reported that the taa were greatly concerned that the omnr was going to allow snowploughs to come onto the Red Squirrel Road extension at the west end. This location was at the opposite end to where the blockade had been the year before, and he didn’t want to disturb a “circle of sacred rocks” near the right of way. In a speech at the University of Toronto on 22 March, Fielders had heard a strong element of violence in Potts’s threats to once again blockade the roads in their territory. This indicated to him that the taa were getting angry and frustrated. He advised that the omnr should be careful with their snowploughs in that area. But the greatest danger would occur, so senior government officials erroneously thought, if the taa and the non-aboriginal environmentalists joined together in the event the tws lost their case in the courts. The latter, it was thought, would resort to civil disobedience on one or more roads in the Temagami area. Provincial officials had no idea of the relationship between the taa and the non-aboriginal environmentalists. They did not know that the taa had always refused to let the environmentalists take part in their issues and thus, perhaps, allow themselves to be co-opted and lost in the “environmental” issues. The province was fortunate that there was no alliance in place. Their strategy, if there was one, was short term. It was to keep talking and to wait to see what would happen and only then react. On a bright, warm, sunny Easter Monday, the Temagami Committee met once again to discuss the Goulard Road issue. Feilders reported that he had some good news. He had been advised that the Goulard Lumber Company had called off their work crews and would undertake no further work on the bridge. The Goulard brothers had decided that it was a provincial responsibility and that they did not need to get an injunction. It was just easier to close things down. The taa would then call off its blockade, and there would be no confrontation on the Goulard Road. There would be no need for an injunction either by the Goulard Lumber Company or by the

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province. At the same time, on the Red Squirrel Road extension, the omnr snowploughs avoided the sacred rocks along the right of way. Fortunately, the situation on both roads had cooled down. The Temagami Committee held another meeting on 28 March. There were reports of a demonstration at Goulard Road, where work on a bridge was being completed. No one could find Mark Goulard, the company’s owner, to find out what he was going to do. Someone thought he was in Palm Beach, Florida, literally “on the beach.” The demonstration was to be a one-day affair with no permanent blockade. Deputy Solicitor General Stien Laal counselled calm and caution and stated that the opp were trying to keep things under control. Scott looked at the critical dates; 13 March had come and gone. The omnr had got its survey crews into the Red Squirrel Road extension and had been carrying out their work unimpeded. There was no blockade on the Red Squirrel Road extension at this time. The next critical date was 10 April, when the tws case would be heard in the courts. He asked what we would do if we won the case, or if we lost it. What was to be our long-term planning for this year? Feilders, as always, would keep the telephone lines open to Potts and keep offering to negotiate. There were no responses to Scott’s questions. As always, decision-making was by crisis management. The province continued to lurch from day to day without any long-term plan for Temagami. Ad hoc decisions ruled the day. Kerrio advised waiting until 11 April to see whether the province would win the tws case. The province won this case. The non-aboriginal environmentalists could now move into action and blockade whenever and wherever they chose without having to worry whether they would prejudice the hearing of their case. They appealed their case and also lost the appeal.

Towards a Treaty of Co-existence On Thursday, 30 March, I headed off to Trent University to present my paper entitled “Official History: Its Pitfalls and Criteria” at a colloquium hosted by the Frost Centre for Canadian Heritage and Development Studies. I had been invited by Professor Bruce Hodgins, who was still involved in the Bear Island case both as a “landowner” and as a friend of the taa. After the colloquium, Hodgins asked me whether it would be possible to see if something could be done to break the current stalemate and attempt to

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reach an agreement between the taa and the province on the Temagami issues. He said that he was arranging a symposium at the Frost Centre in a few weeks, on 19 April, and invited me to return. He also asked me to invite Mark Krasnick so that we could talk further with a taa representative and others who were attending to arrange for a facilitation of the Temagami issues. I agreed to try to do so. Back in Toronto, I asked Krasnick about the idea. I told him that we had to do something to move things along. Feilders had done his best, but he now had no mandate from the province and nothing to discuss with the taa. Feilders was mired in an interim arrangements agreement upon which the two sides could not agree. The taa wanted the Wakimika Stewardship Council to cover the entire four thousand square miles, while the province was holding fast to the position that it was only to apply to the Wakimika triangle area or, at the most, to an area of two hundred square miles. It was a question of whether the province and the taa were prepared to negotiate the land claim and the interim arrangements for a Stewardship Council together and for which specific geographical areas. Feilders wanted to leave the area open and try to reach an interim arrangements agreement first and then move on to the larger land claim negotiations. The taa saw no difference in negotiating the two together. Krasnick was very reluctant to attend such a meeting. His main objection, and it was a valid concern, was that Feilders was the province’s main contact with the taa. He did not want to do anything to “screw up” the relationship between Feilders and Potts. But I reasoned Feilders had said that Potts was off for a rest and nothing was happening. Feilders was making little or no progress. Moreover, there would soon be blockades as soon as breakup occurred in the Temagami area, by either late April or early May. Finally, he relented and agreed to attend but only on the condition that I call Feilders and ask his advice on the endeavour and what he thought about us going. Feilders was, as always, extremely constructive. He pointed out that nothing was happening between himself and Potts; nor was it likely to happen in the next month or so. He saw no reason for not going and trying something different. Krasnick and I went along to Trent University, situated on the Otonabee River, for the symposium on 19 April. I had prepared a draft memorandum of agreement, or framework agreement, which I had used in my other negotiations to great effect and which specifically fleshed out the items to be discussed or negotiated between the taa and the province. This draft agreement would mirror the taa‘s proposal for the Treaty of Co-existence.

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I kept it very simple so as not to put up any red warning flags for the taa. No geographic areas were specified for any of the items. That was to be left for the settlement negotiations. No time limits were imposed either on the negotiations or on the litigation. These two would either move forward or they would not do so. The previous offers had been quite complex. Now it was time to try something different. The draft framework agreement included a menu of a treaty, land, a stewardship council, interim arrangements, and other considerations. I did not show it to Krasnick for fear that he would not approve or that he would use it as an excuse not to come along on the trip. The Frost Centre for Canadian Heritage and Development Studies did a fine job of hosting the day-long symposium, led by Professors Hodgins and John Milloy. Milloy, then a professor in History and Native Studies at Trent University, was the chair for the day’s events. Others in attendance included Brian Slattery, a Law professor from Osgoode Hall School; the late William J. Eccles, professor of History at the University of Toronto; Brad Morse, a Law professor from the University of Ottawa; the late Bob Surtees, a historian from Nipissing University in North Bay; Tony Hall, professor of Native Studies then at Laurentian University in Sudbury. Jamie Cullingham, a film producer, was also there. Hodgins had also invited Mary Laronde, a taa representative and one of their councillors. It was an auspicious gathering, and the papers presented by Professors Slattery, Morse, Eccles, Surtees, and Hodgins focused on the historical and legal issues in the context of the recent Ontario Court of Appeal ruling on Temagami. Later in the afternoon, tempers got shorter, likely because of our presence. The academics thought that the provincial arguments against the taa in the court case were plumb wrong. Hall made one of his eloquent, patented speeches about colonialism and the province’s history. He was not far off the mark. To show his anger, he walked out indignantly. We took a break. Hodgins and Milloy went out of the meeting room to try to calm him down and restore some semblance of order. When the meeting resumed, Hodgins focused on the Steele judgement and the Court of Appeal decision, quite rightly pointing out that, in spite of the courts’ rulings, there was considerable doubt on the historical facts. It was not at all clear that Chief Tagawinine represented or signed on behalf of the taa in 1850 or even that the taa participated in the treaty after it was signed, as Justice Steele had ruled. He noted that, according to Canadian law, any such doubt should not be held against the taa but in their

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favour. In response, I recognized that there was considerable doubt on the historical facts. I had respect for the taa‘s claim, and their oral traditions as a living thing – a spirit was in their story – as well as for their choice to have it in the legal forum in which they had chosen to address it. I noted that the historical connection between Peter Nabonaigonai of the taa and Chief Tagawinine were not at all clear from the written records. Mary Laronde then asked who Chief Tagawinine was. Bruce Hodgins explained who he was. He also asked since there was considerable doubt on the historical facts, why there could not be political negotiations and an agreement to resolve the Temagami land claim. Then Krasnick really put his foot in it. Rather than listening further, he put on his lawyer’s hat and polarized the already hardened positions. He asked what the assumptions were in the Temagami legal case. The historical facts, as decided by the courts, were the legal underpinnings of the case and they had been narrowed by the courts such that the legal case was now a historical fact. He advised that it was on this basis through litigation that the province would settle the land claim. Morse intervened and stated that his statement might be taken as “good or bad,” but in other jurisdictions one distinguishes between the historical facts and the law. It was at this point that Cullingham lost it altogether. He screamed at Krasnick: “You say you have respect for the land claim, you don’t even understand it. You’re a piece of shit.” He walked out of the room in an utter rage. Krasnick paled at this outburst and was visibly shaken. The chair called for a break at 3:30 p.m. Krasnick immediately walked out and left for our car. Outside of the room, I saw Hodgins and Milloy. They apologized to me for Cullingham’s behaviour and said that Mary Laronde had wished to speak to me. I spoke with Mary briefly and told her that I realized that things were stalemated between Potts and Feilders and that I had no intention of short-circuiting their discussions. But I handed her the draft framework agreement and suggested that this approach might be a way to break the logjam in the negotiations. She said that she understood and agreed to take the draft document back to the taa for their consideration. I never told Krasnick what I had done. However, I told Feilders the next week what had happened to warn him that he might be approached by Potts on this subject. Krasnick was angry, very angry. He had a very thin skin. As a lawyer and a civil servant, in this job, you needed to be able to handle situations

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like the one in which we had just participated. He was vindictive. Perhaps assuming that I had set him up to be called a “piece of shit” by the people at Trent University, he never forgave me. Cullingham, a 1980 graduate of Trent University in 1980, had been a strong activist for the taa and had made a film for them called Frozen Caution.6 His outburst was just as much a surprise to the other people present as it had been to us. In the end, Krasnick brought it on himself because once again he failed to listen to what people were saying, polarizing in the process positions that were already strained by a year on the blockades. My relationship with Krasnick deteriorated significantly after that event. He never again said anything about the meeting to me. In retrospect, the occasion proved to be worthwhile. Another approach had been offered to the taa – a framework agreement without any conditions attached. The taa took the document and added their Treaty of CoExistence to it as well as the discussions with Feilders on the interim arrangements and gave it to Feilders and the provincial Cabinet. Just over one year later, on Earth Day, 23 April, a document would be signed, which included the Treaty of Co-Existence, a stewardship council, and an agreement to enter negotiations. The way to an agreement on Temagami went through Trent University in Peterborough. It was no mean achievement after more than 140 years of failure to begin settlement negotiations.

The Lull before the Storm The next meeting of the Temagami Committee was on 24 May 1989, which Brock Smith, then the deputy minister of Northern Development and Mines, chaired. Updates were presented on the various issues such as the roads, the Milne Lumber Company, and the Temagami Wilderness Society litigation. The upcoming construction season was described like the civil war then occurring in Beirut, Lebanon. Even though the Milne Lumber Company was in receivership, the omnr was still planning to complete the Red Squirrel Road extension, even after all that had happened the year before. They had called for public tenders and asked four or five companies to bid for a licence to cut down the forest off the extension. Construction on the road was scheduled to begin again in mid-June. With the taa neutralized by the injunction, the Ontario Court of Appeal decision, and another settlement offer, the primary fear at the meeting was that the tws, having lost their court case (and with little likelihood of an appeal being granted

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by the courts), would become “desperate” to stop the construction and would begin taking direct action such as a parallel environmental blockade or even tree-spiking. Deputy Minister George Tough of the omnr offered the only constructive suggestion: he advised that the omnr hold an international conference in autumn 1989 on the old growth forests – too little and too late, as always. Presumably, the conference would be held while the omnr was helping the private companies cut down the forest being discussed at the conference. It was a strange way of doing business. Smith stated that, to avoid a repetition of last year’s fiascos, Scott wanted the officials to come up with a “strategy” for the construction season. The senior officials ignored this request. They had no idea what to do in the circumstances. Captive governments and their officials may be “good” at ad hoc crisis management and “reacting” to events, but they are truly hopeless when thinking strategically to prepare for what is going to happen. Feilders reported that Potts was taking a much deserved leave and that Rita O’Sullivan was in command as interim chief. The taa were moving ahead with their appeal to the scc, and it was likely that the Court would grant the taa leave to appeal. The taa would, now that the injunction was over, be free to determine to choose the place and the timing of its next blockade. Feilders also stated that he was making some progress in getting the omnr staff and the taa to talk to one another for the first time. The subject was a research study on the old growth forest to be undertaken by the taa and mutually agreed upon consultants. It was proposed that the omnr would pay the taa $50,000 for this research study; Mary Laronde became the taa contact with the omnr on the project. It presaged the work of the taa on the Wendaban Stewardship Council from 1990 to 1995. To give him his due, Feilders was always tenacious and, as a planner, a strategic thinker. In the end, a strategy for the minister was prepared, setting out the three most likely potential scenarios should the road extension proceed that summer. As the Cabinet committee’s recorder and writer, it was my job, unless otherwise directed, to prepare such papers. The primary assumption was that the taa would not want to blockade the road before its leave to appeal was granted by the Supreme Court of Canada ( scc). If it did so, it was likely a court would grant another injunction to stop a blockade, which might harm their case to be presented to the Court. If leave to appeal were granted, then the most likely event would be that the courts would again do what had been done the year before and

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grant an injunction but prevent any road construction pending the outcome of the taa appeal to the scc, which could take a year or even longer. My strategy accounted for the following: (1) if the taa leave to appeal to the Supreme Court of Canada was not granted; (2) if the taa leave to appeal was granted; (3) if the tws appeal was not granted, which was likely. Flowing from the draft framework agreement I had given to Mary Laronde at Trent University the month before, the proactive strategy in all of these scenarios was to continue the province’s dialogue with the taa and establish “bridgeheads” with them. The taa, and not the tws, was the key to seeing things happen constructively in the Temagami area. This advice and the strategy were to concentrate on assisting the taa positively in the areas of resource development, especially forestry, such as in Feilders’s proposed research study. It was also recommended that the taa host a workshop with the omnr staff to seek ways to maximize economic development rather than to continue fighting with them. This approach worked over the next year. It led directly to the Treaty of Co-Existence, which the taa, in its generosity, held out to the omnr and the Wendaban Stewardship Council. The Temagami Committee met again on Wednesday, 21 June. With construction about to resume, Ian Scott required updates and assurances that the province was in a position to respond to events when the taa or tws – or, in a worst-case scenario, both the taa and tws – resumed the blockade(s). The government suspected, but did not know with any degree of certainty, that the taa would not join with the tws and would not let the tws support their blockade. Their primary issues were quite different. The taa would not want their issue of their land rights lost in the broader environmental concerns of the tws on whether to cut down the Temagami old growth forest. Besides the taa were not against cutting the old-growth forest but were rather more concerned about it being done selectively and in a sustainable way. By this time, even Kerrio had seen the value of the strategy of keeping an open dialogue with the taa and working with them. He suggested that the omnr expand the proposed “model management system” to include the non-aboriginal environmentalists. It is a pity that he had not thought that way a year before, when it was possible to have a fullscale environmental hearing on the Red Squirrel Road extension. An incredible amount of time and money would, in retrospect, have been saved. But at the time, omnr staff had stopped talking to people and were too busy bulling ahead with what they thought should happen. All through that summer, Scott kept asking in our briefings with him whether we had a settlement proposal prepared to offer on the Temagami

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land claim if the taa were denied leave to appeal to the scc. This was truly curious. We did not have such a proposal or a strategy ready for this remote possibility. Neither did Krasnick ask me to prepare one. Perhaps he figured that it was a certainty that the scc would hear the case. I had no doubt about it. By 3 August, we knew that the scc would decide on the taa appeal within two months. It was good to work on other things, especially the Manitoulin Island settlement negotiations, which were progressing well. For a change, it was a quiet summer.7

A Second TAA Blockade on Red Squirrel Road By early September, we knew that another blockade of the Red Squirrel Road extension would take place soon. But Krasnick had implemented, again arbitrarily and unilaterally, yet another management reorganization of the directorate. We had just had two in 1988, making this the third one in a year and a half. It wreaked havoc on staff training and morale. In this round of changes, the Temagami file went to anthropologist Wallis Smith, who had no practical experience working with aboriginal people or on aboriginal issues. Instead he was fixated on his abstract views on self-government, which were founded on academic community development theory of the 1950s and 1960s. He would lock himself in his office for days writing and rewriting his version of aboriginal self-government, only to emerge with another incomprehensible paper that echoed the Hawthorn Report of 1966–67 and the paternalism of government-directed “community” development. He was a hopeless liability. When Krasnick wanted to slow something down that he felt was going too fast, he would always asked Smith to write something and everyone else would have to wait for weeks, and sometimes months, to receive the latest tablets from Wallis Smith’s mountain of paper wisdom. When Smith’s self-government policy finally reached the Ontario legislature in December 1989, it was leaked to the opposition parties. Thus, when Scott introduced the “new” self-government policy, it was ripped to shreds by the ndp, much to Scott’s anger and embarrassment. But Krasnick came to like the “donothing” boys, and it left him with plenty of room to procrastinate rather than to make the necessary hard decisions. In our last meeting, when I handed over the file, Smith questioned Krasnick’s and the minister’s instructions to prepare another settlement offer to the taa. His reasoning was that, in preparing another “rock bottom offer”

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to the taa, the government was merely reaffirming the negative messages that it had constantly sent to the taa over the history of the relationship. This was a serious misreading of the situation. We were close to a deal with the taa. What was required was to build on the dialogue that had been established and to work with the taa to develop a framework agreement that would, among other things, include land as a substantive component. But Smith never did have much information about what was happening on the ground. As a result, no offer was prepared and nothing was done when the taa got leave to appeal to the Supreme Court on 3 October. Another opportunity was missed. With Feilders as the provincial negotiator, the dialogue with the taa that had been opened over the past year and a half had set in place a framework for negotiations and for the Treaty of Co-Existence. Belatedly, the omnr began construction of the Red Squirrel Road extension early in October 1989. The taa sought an interlocutory injunction in the Ontario High Court of Justice on 27 October 1989. This was denied without costs being awarded by the courts.8 In late October, in response, the taa began their second blockade. A similar approach, using injunctions, was taken by the province. The taa obeyed the law, not wishing their claim to be jeopardized on appeal to the Supreme Court of Canada. The highest court in the land had already agreed to hear the claim on 3 October 1989. The taa effectively ended its blockade on Remembrance Day, 11 November 1989. Those taa who had been arrested were taken away gently by the opp and then released. They were not charged or fined by the Ontario courts. It was recognized by the court that they had an interest in the disputed land, which was already before the courts; a legal argument called a “colour of right.” This legal interest in their land was then on appeal to the Supreme Court.9 However, this action did not help the non-aboriginal environmentalists, who had already taken up the blockade of the Red Squirrel Road extension, attempting to save the Temagami forests. When they tried to stop the construction, they were arrested. Many went to trial, and some were either fined or imprisoned. They did not have the legal defence afforded to the taa – land claim for their own land – now that the aboriginal people were gone. In the political fallout, Scott came under heavy criticism for using the law purely for political ends. However, from his perspective, two things were accomplished. One, the claim was not sacrificed for another issue, since substantive negotiations were not seen by the Liberal Government to

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be possible anyway. Two, once the taa refused to negotiate and wanted to have their day in court, the road became an environmental issue. For his part, even Bob Rae, who had never before backed any aboriginal issue, much less a land claim, allowed himself to be arrested in September 1989. In his political memoirs, Rae attributes his intervention in the issue as a result of a meeting with Chief Gary Potts. But he had little interest in aboriginal issues then, except as abstract constitutional matters.10 The Red Squirrel Road extension was finally completed at great expense in spring 1990. Estimated to have cost about $4 million to construct, it has never been used for the purpose for which it was constructed, which was to provide road access to take out the last large stands of red and white pine. Unfortunately for Scott, the issue led, at least in small part, to the defeat of the Liberals in the provincial election that fall. He was himself only narrowly returned to the political backbenches.11 Scott was a brilliant man and an astute politician. I worked for all shades of provincial politicians over thirteeen years (1979–91), and beyond a doubt he stood head and shoulders above the rest in every possible way. Yet, despite his legal constitutional background and his initial high promise and depth of experience as minister Responsible for Native Affairs, Scott turned out to be a large disappointment to First Nations in Ontario. For example, he supported Quebec and the Meech Lake Accord over aboriginal people. Scott let his inexperienced head of Native Affairs and his special assistant in the area, both of whom were lawyers, “rule the roost” on these matters. Their focus was on aboriginal self-government, modelled narrowly and conservatively on the federal Department of Indian Affairs program, which was a municipal-like scheme. After four years in power for the Liberals, the provincial “Native self-government” policy, another political embarrassment when it had been announced in the Ontario legislature early in December 1989, was stillborn. Someone, perhaps even Wallis Smith himself, leaked the policy to the ndp before it was announced in the legislature (Smith, was, at the time, a lifelong ndp supporter). He had been one of the people purged from positions of power from the Ontario Native Affairs Secretariat by Michael Harris’s political minions in 1996.12 These events were soon overtaken by the next summer’s events at Oka in Quebec. Subsequently there were blockades all over Ontario, especially in the north. The Temagami issues, however, ended up in the Treaty of Coexistence – the first agreement between the taa and the province before the events at Oka on Earth Day 1990.

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A Treaty of Co-existence Directorate senior staff met with Scott on Tuesday, 3 April 1990 for a briefing session, and Temagami was on the agenda. With the Red Squirrel Road extension now completed, Roger Fryer had taken over the remains of the Milne Lumber Company. If Fryer were not able to access a supply of wood, he would then be in financial trouble. The omnr had again authorized the cutting of timber and using the completed road to do so. Feilders reported that the next Monday, 7 April, the taa would blockade the road, stop traffic, and would go to jail this time if they had to. Now that the road was completed, the taa’s actions would be illegal. The issue now became whether the government would allow the omnr to permit cutting timber by way of an extension. Earlier that day, Feilders had an extended lunch with Chief Potts, who informed him that he had heard that the omnr was intending to permit the cutting of timber in the land claim area and warned him to stop the cutting. Potts wanted to meet privately with Scott on these matters. Krasnick advised Scott that Feilders had told him that the taa would show no movement on the issue, but Krasnick’s advice was very doubtful if Potts wanted a private meeting with Scott. Instead Scott told Krasnick straight out that he wanted him to inform the omnr that there would be no cutting for one month. Any cutting would be postponed until Scott got a proposal to Potts to break the logjam and get an agreement with the taa that would provide a strategy that would also “see us through the next two years.” By this time Scott must have known that Peterson was going to call an early election that summer, only three years into the Liberal mandate. By this time, Temagami was now Wallis Smith’s file, but he was nowhere to be found. Smith had not prepared an offer of settlement since 1 October, nor did he have a strategy or proposal prepared. Scott had lost confidence in him after he had been “savaged” in the Ontario Legislature early in December 1989. Feilders was then asked to prepare a proposal for Scott, which Scott would give directly to Chief Potts. This time, Scott would negotiate for the province. As attorney general, Scott was going to take on the role of a “dove” in this round of negotiations. He would surprise the taa with a proposal that would be in their favour in his role as an “advocate” for aboriginal people. This would be done through a private meeting between Potts and Scott. I was not present at this private meeting, nor were Krasnick and Feilders. However, in the early 1990s, when Potts camped out at my place

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in Toronto for a year while he studied law at the University of Toronto, I asked him about the meeting: based on what he told me, the framework agreement I had given to Mary Laronde was the basis for the discussion in this private meeting, and it subsequently became the memorandum of understanding on the Treaty of Co-Existence. On Earth Day, April 1990, Chief Potts and Lyn McLeod, then minister of omnr, signed the mou and created the Stewardship Authority, which effectively meant that the Red Squirrel Road extension would never be used to destroy the last old red and white pine timber stands in the Lake Temagami area. I heard about the signing when I was in Helsinki, Finland, attending a conference celebrating the 300th anniversary of the founding of the University of Helsinki. My way to the conference was paid for by the university and not by the province, and I had to use up my vacation time in order to participate. Before I left for Helsinki, Krasnick asked me whether the province should make another offer to the taa. He was apparently getting nowhere with Smith. I advised him that the best strategy was to make another offer before the Supreme Court of Canada handed down its judgement on the land claim litigation, which almost assuredly the taa would lose. It would be much more difficult to do so after the Supreme Court ruled for the province. Ironically, Scott did not sign the memorandum, but he had been successful in persuading McLeod to agree that the omnr would not permit logging or the use of the road extension. Thus, the omnr was “tamed” for a time. Unfortunately, Scott was never given the political credit for his role in preventing another Temagami debacle. In July 1990 a provincial election was called for September. By then, the aboriginal resistance in Kanesatake (Oka), which was just taking off in July, would be a full-blown crisis. Both Oka and Temagami were successful in drawing attention to aboriginal land rights. These events were pivotal in changing the future course of history for both Ontario and Canada.

9

Oka and the Blockades in Northern Ontario, Summer 1990

After the Teme-Augama Anishnabai land rights issues had been addressed in the April 1990 Treaty of Co-existence, nothing further was likely to occur until the Supreme Court of Canada handed down its judgement. Nevertheless, the taa experience and the precedent that had been set had a considerable impact on other issues throughout 1989 and 1990, and in the years following. As early as autumn 1989, the leadership of the First Nations predicted that their young people as well as their elders were becoming increasingly angry and militant about the lack of progress on aboriginal issues at both the national and provincial levels. This was not idle chatter or mere threats. There was the “civil war” on the Akwesasne Reserve in 1988–89 over cigarette smuggling and jurisdictional and sovereignty issues. Akwesasne stretches across Canada, the United States, New York State, Quebec, and Ontario, and its territory is carved up by the international border. By the end of resistance, the government had posted four uniformed police or military personnel per resident just to keep order. There were the blockades at Temagami and the February 1990 incident at Batchewana Bay. There were ominous reports of talks breaking down at Kanesatake (Oka) over the proposal to expand a golf course onto reserve and sacred land (a cemetery) by the local municipality of Oka. Oka exploded when, as resistance grew at Kanesatake, a blockade went up on a local provincial highway through the town and the reserve. Plus, there was the growing dismay among First Nations about being shut out of the negotiations on the Meech Lake Accord.1

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Although things were becoming highly volatile, the provincial and federal governments were paying little heed to the situation. In Ontario, the Peterson Government was well into the third year of its mandate. In spite of the Temagami blockades, it was still enjoying popularity at the polls, which was not unusual for a majority government still in the middle of its first term in office. There were cutbacks in funding, and things within the government were starting to slow down, which always indicated that the politicians were gearing up for an election the following year. That election, rather fatefully, came in September 1990, when the Oka crisis reached its critical mass. The calling of this election was premature by at least a year – a political mistake by Peterson in reading the polls and the volatility of the electorate.2 Meanwhile, the Ontario Native Affairs Directorate continued its blissful “post office” mode of operations. Take, for example, the pleas about aboriginal and treaty rights I took to the head of onad one December morning in 1989, while snow was falling gently around the “Pink Palace.” Here, far away from the reality of aboriginal communities, it was pleasant to think that one could bring justice to the aboriginal people through government policy. It was abundantly clear that such an aboriginal policy, even if it were to be written, would come too late. Krasnick said to me, “But no one cares … No one cares about land claims, except yourself and perhaps one or two people in all of Canada, at the most, as many as the fingers on my own hands … You know that nothing will happen and certainly nothing will change in this place … at least until people begin to riot outside the windows of this place and you know – you know – that will never happen.” I looked out the windows at the snow falling. No reply was necessary. A curious dissonance of peace and violence filled the air for it did not take much imagination to see that what would happen that next July at Oka.

Indigenous Land Rights and Blockades Ontario was not prepared for summer 1990 and the blockades that appeared in support of the main event at Oka. The Cabinet Committee on Native Affairs met on 7 February 1990. The first item on the agenda was the omnr Cabinet submission on fishing. The omnr had apparently learned nothing from the taa issues. When the omnr brought forward aboriginal fishing rights, it always spelled trouble. The submission attempted to

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address the issue of how to “kick-start” negotiations and develop a strategy for negotiating fishing agreements with First Nations in Ontario. For the provincial government the fishing resource was a significant source of tourism dollars. It proposed, without any apparent rationale, a local approach to Ontario fishing negotiations by beginning with six local pilot projects rather than province-wide negotiations. The submission was designed by the omnr to stall doing anything until after the next provincial election. By this time, Kerrio had been replaced as minister by northerner Lyn McLeod, the first woman to take on that office. It appeared that the omnr senior management was trying an end-run around its new minister. Scott, knowing this agenda and likely trying to protect his colleague, termed the bringing forward of the issue a “blood sport.” He reminded everyone of what had happened (racist backlashes) when the omnr tried to do the same thing in 1982 with Alan Pope, who was then Conservative minister of Natural Resources and his own fishing negotiator. Pope, however, tried to do it himself and did not consult his Cabinet colleagues. The issue became racist when Leo Bernier, then the minister of Northern Affairs and Mines, found out about Pope’s negotiations and told his senior staff. Similar experiences were felt in 1986–87 when Al Stewart and Crystal were the fishing negotiators. Scott was aware of these difficulties experienced in the past with third-party interests, and he was concerned that the current submission did not address commercial fishing as a treaty right, which was a primary issue for aboriginal communities. omnr was continuing to “roll the dice” on indigenous issues. Likely this gamble reflected their lack of knowledge. Tough, who was still deputy minister of natural resources, replied too sanguinely that the omnr‘s view was that it would be a “third-time lucky.” The submission, he believed, would allow omnr to start negotiations that would provide a practical solution to local problems. This statement was nonsense, especially since the pilot projects that attempted to accommodate First Nations’ fishing rights, and thereby reduce the potential for friction between indigenous and non-indigenous fishermen – both commercial and sports fishermen – did not include the most dangerous flashpoint in the province on fishing: Batchewana Bay, north of Sault Ste Marie. There had been racist incidents and confrontations in the past. Instead, Cape Croker, north of Wiarton on the Bruce Peninsula, was chosen as the place where the negotiations had the best chance of succeeding. By February 1990 the negotiations there had been ongoing for a few years and were then headed directly into litigation as a direct result of

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the intransigence of the omnr. In the end, the omnr lost its case on fishing and had to negotiate an agreement with the First Nation. Gary Posen, the deputy minister of the environment in 1990, challenged the omnr both on its choices of where to begin negotiations and on its superficial strategy. He argued that what was required was a clear statement of treaty rights on fishing in Ontario. There also had to be a better understanding of the costs involved in the three options of doing nothing, negotiating, or litigating. There had to be a commitment to negotiate and a communications plan, which informed and explained to the public why negotiations were being taken. Echoing the omnr advice that had gotten the government into big trouble in Temagami, he advised that the omnr should come back to the Cabinet Committee when it had thought through these issues. As it stood, he argued correctly that we would be politically “murdered in our beds” by both “tomahawks” and “bullets” alike if negotiations proceeded forthwith. Presciently, he warned that we would be creating a scenario that had led to situations like the Temagami blockades and the shutting out of indigenous people at Meech Lake. The second item on the committee’s agenda was to begin negotiations with the Algonquins of Golden Lake on their land claim, which involved aboriginal title and rights such as fishing. This agenda item passed and led the way to the beginning of negotiations. However, the issue was in Sean Conway’s riding. Conway, then the minister of Education, spoke loudly and vociferously that beginning such negotiations, whatever its merits, would entail a huge risk for the government. He observed that his riding was not a “Robertson Davies World,” but a place of “vigilantism.” He quite correctly understood that beginning negotiations on the land claim would conjure up a racist backlash in the Ottawa valley in Eastern Ontario, just as beginning fishing negotiations was bound to do in Northwestern Ontario. And he was right.3 The ministers responsible for Natural Resources and for Native Affairs in the ndp Government that followed the Liberal defeat that summer are often given credit for the hunting and fishing agreement with the Algonquins of Golden Lake, which was signed in 1991. This agreement would not have been possible if the Peterson Government had not approved the negotiations on the land claim and successfully completed these preliminary negotiations in 1990. The hunting and fishing agreements were a direct outgrowth of these negotiations.4 In fact, almost all of the aboriginal negotiations under the ndp had been begun by the Liberals. And many

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which had been started, like Temagami or Walpole Island, failed because of a lack of resources put to the task and a lack of political will on the part of Premier Rae to complete the work required to reach agreements. This failing was put to test during the Oka crisis.

The OKA Crisis and First Nations’ Unrest in Ontario In the middle of the summer 1990 events at Oka, Krasnick was still trying to convince directorate staff to develop a ten-year strategic plan for the 1990s. This plan, he was convinced, would improve the quality of life for aboriginal people. He had not learned anything about aboriginal people or their issues after two years of blockades in the Temagami area. The First Nations wanted action and not just another paper policy with more good intentions. The crisis deepened at Oka throughout June, and on 11 July5 a member of the Securité du Québec, Corporal Lemay, was shot by one of his colleagues when they had attempted to break up the Mohawk highway blockade. Tear gas had been used; when the wind shifted, the cloud of gas covered the area and marred visibility. The crisis at Oka spawned major sympathy blockades at Big Grassy River and Long Lac in Ontario. I was then manager of community negotiations with the directorate and would spent much of my time visiting First Nations communities along the Great Lakes, from Walpole Island to the Lake of the Woods to discuss land rights or aboriginal governance. In all, I visited forty-two communities from January to September 1990. The meetings did not cease when the events of Oka intensified, in fact, they actually increased. This was an exhilarating experience and gave me a better handle on what was happening from the perspectives of First Nations at the local level. The communities I visited over this period were: Rainy Lake Tribal Council, at Fort Frances; Rat Portage; West Bay First Nation, Manitoulin Island; Garden River First Nation, Sault Ste Marie; Ojibways of Onegaming; Batchewana First Nation, Sault Ste Marie; Mississauga River #8 First Nation; Long Lac #58 First Nation, Thunder Bay; Stanjikoming First Nation, Winnipeg; Walpole Island First Nation, Bkejwanong; Chippewas and Saugeen First Nation; Pic Heron First Nation, Heron Bay; 1850 Robinson Superior Treaty Council, Thunder Bay; and White Fish River #6 First Nation, Birch Island.6

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Big Grassy River Blockade, May 1990 Early in May the blockades in support of the land rights issue at Oka began in Ontario. The bridge over the Big Grassy River on the southeastern shore of the Lake of the Woods was to be blockaded over the long May holiday weekend. The Mishkosiimiiniiziibing First Nation (Big Grassy First Nation) was one of the two First Nations involved in the then unresolved (since 1977) Assabaska land claim to 1,600 acres, most of which was in Lake of the Woods Provincial Park. There was another claim to the bed and waters of the Big Grassy River. The latter issue – the ownership of the bed and the waters of this river – had been around since the late 1980s, but Krasnick had not seen it as a priority and failed to put any resources into the proposed negotiations. It was finally settled through negotiations in 1999.7 The highway was within the reserve that was to be blockaded. The Grassy River community was going to set it up as an information blockade in support of Oka and to draw attention to their own issues. The opp ensured that the blockade would be carried out peacefully and protect the aboriginal participants from angry non-aboriginal motorists. The directorate was also informed that there would be traffic slowdowns and information picketing along the TransCanada Highway at Garden River, on Highway #69 at the Shawanaga Reserve and at the Mohawks of Gibson Reserve in Muskoka over the same weekend. All of these events were carried out peacefully with the cooperation and support of the opp.8

Long Lac #58, Summer 1990 The next blockade was at Long Lac #58 First Nation at Long Lake in Northwestern Ontario. I am using “#58” to distinguish clearly between the First Nation where the blockades occurred and the Long Lake #77 First Nation, who had a large Reserve at the other end of Long Lake under Treaty #9 (1905–06). These numbers were assigned by the federal Department of Indian Affairs. I had been negotiating with Long Lac #58 and the Robinson Superior Treaty Council on their aboriginal title issue (which was the same issue as Bear Island: that they had never signed the Robinson Superior Treaty of 9 September 1850) that spring and summer. After the initial events at Oka on 11 July, however, these negotiations broke down and two blockades went up. First the TransCanada Highway was blockaded and then the main CN Rail line, both of which ran directly

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through the reserve. The right of way for these routes had been taken in 1914 without adequate compensation having been paid to the Long Lac #58 First Nation. The railway line passes directly through the reserve, as does the TransCanada, which runs adjacent to the lake. The Long Lac people had always been a strategic point for trade. At the time of the Robinson Superior Treaty negotiations in 1849–50, their ancestors feared a trap or a “snare” and had avoided the treaty-making process and did not sign the treaty. The Crown needed to negotiate a treaty with the First Nations in the area because economic exploitation had already begun with the discovery of copper deposits north of Lake Superior. Later the forests were cut down, chasing away the animals from aboriginal hunting and trapping territories. Mining claims were staked by private entrepreneurs in the mid-nineteenth century. Despite all this development, the Long Lac citizens argued convincingly that they had always retained their land rights and aboriginal title. They did not share much less barter away their sovereignty or their territory. From their perspective, these were still their land and their resources. Then, in 1914, they lost the right to their territory when the governments carved it up and left them with nothing more than a reduced pocket of land that once was their summer fishing location on Long Lake. Today, their tiny reserve is in a large swampy area. It is less than one square mile, cut in half by two transcontinental railway lines and physically detached from Long Lake by the TransCanada Highway. The various rights of way continue to destroy their children and elders with great and unseemly regularity, primarily through accidents on the highway. Their homeland and treaty area and rights were forgotten or abrogated by government regulation and legislation. In summer 1990, the Long Lac community felt like “corralled animals” on their reserve. By this point in time, their land claim discussions with the province and the federal government had been stalled for thirteen years. Their lands and resources were being taken from them for “progressive developments” by their non-aboriginal neighbours, notably, the opening of the Hemlo gold fields in the 1980s. Ironically, the discovery of Hemlo came after Long Lac had submitted their land claim (along with some of their neighbouring aboriginal communities), known as the Anishnabek land claim, to the federal government. The federal government’s response to their claim relied on the Temagami claim being settled. For years, the government’s response had been: “No, you must wait for the Temagami land claim litigation process to end. Only then will we be able to give you an answer.” (The taa case continues to similarly influence other land issues.) This response was not

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only unsatisfactory, but it also belied the spirit and the intent of the treatymaking process. The taa had not won, nor were they likely to win, in an alien court system with all of the resources of the provincial government arrayed against them. And, in any event, the Crown had always argued against any of the taa assertions of rights and title. In August 1990, like the people at Kanesatake, the Ojibwas of Long Lac decided that they could wait no longer.9 The first day of the blockade was on the TransCanada Highway. The Long Lac First Nation passed out leaflets about their grievances on the Civic Holiday weekend in August. By the end of the second day, a few had been arrested for blockading a provincial highway. As a result of the Temagami blockades, the opp and the province now had a strategy to address these issues. By Wednesday, 8 August, they had moved seventy-five water barrels onto the main CN line that passed through their reserve. The federal government, which was responsible for railways, did nothing. The opp had no jurisdiction on the railway line, but the rcmp did. However, CN sent in its negotiator, Tony Champion, and he started to negotiate with Long Lac about the ownership of its line through the reserve. Bernie Abraham, one of the Long Lac #58 councillors, contacted me on behalf of the First Nation community and their chief, Sydney Abraham. Tony Hall, who had been at the meeting at Trent University of 19 April, was also at the blockade. In fact, he was a part of it since he was married to a woman of the Long Lac community.10 The community further requested that Ian Scott meet with them immediately on their grievances, which they faxed to me. Their demands were most reasonable and practical. By this time a provincial election had been called for 6 September. Scott was out on the hustings, busily campaigning to be re-elected, and Cabinet was not meeting. This left an inordinate amount of political power in the hands of civil servants between the date the election was called and the swearing in of the new government on 2 October. In addition, the head of the directorate was off looking for a new job in British Columbia for most of August and early September. He was actually selling the taa Treaty of Co-Existence to both the federal and BC provincial governments as a “new” treaty process, for which he was paid handsomely. He expected to be removed by the new ndp government, since he had been a Liberal political appointment. Scott was kept informed of the situation but did not offer any advice. It was an opportunity to do a lot of positive political damage, if one chose to do so. While most of the Long Lac #58 demands on their grievances involved

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the federal government, they asked that Scott meet with them on seven provincial issues, which included the right of way for the TransCanada Highway through the reserve, an outstanding claim against Ontario as well as their assertion of their aboriginal title and land rights in their homeland north of Lake Superior. These provincial issues included ones that were typical for many Northern Ontario reserve communities then and now: 1 Anishnabek land title and rights issues; 2 more land and a larger land base for the Long Lac #58 Reserve; 3 the impact of Kimberley Clark, a pulp and paper company, on the natural resources north of Lake Superior; 4 omnr forestry practices that allowed clear-cutting of the forests; 5 pollution of the lands and waters by Kimberley Clark; 6 The taking of the land for the right of way for the TransCanada Highway through the reserve, and the effects of the highway on the community; 7 provincial economic development initiatives for the community. Something should have been done on all these issues long before summer 1990. Scott immediately agreed to meet with the Long Lac representatives, if they wished. They had been expecting him to say no and were quite surprised at our responding so quickly and affirmatively. This had the effect of focusing their attention on the federal government, especially the federal Department of Indian and Northern Affairs. They also asked to meet with Tom Siddon, the minister of Indian Affairs, or his representative, Shirley Martin. The Long Lac citizens had been repeatedly rebuffed by the federal government. Fearing a precedent for the situation at Oka, federal politicians refused to negotiate until the blockades came down. (But, even then, they refused to negotiate.) Scott never met with them. Events overtook the situation. By the time an opportunity arose to invite him in September, he had become a “lameduck” minister waiting for the Bob Rae government to take over. Instead, Bud Wildman, who had been appointed the new minister of Natural Resources and the minister responsible for Native Affairs (and who was a descendant of Chief Shinguacouse, who negotiated the Robinson Huron Treaty of 1850), would meet with Long Lac. Sometimes the best strategy to deflect or address grievances is to say yes and agree to meet on the issues. It certainly worked perfectly on this occasion. The Long Lac blockades

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ended peacefully with negotiations taking place around a picnic table on the reserve in September between the opp, represented by Brian Rupert, the opp’s First Nation policing co-ordinator, and the Long Lac leadership.

The Negotiations at Long Lac The emergency committee handling the Long Lac blockade met on Monday, 13 August. This committee had its origin in the Temagami blockades of 1988–89. Since then, it had become the committee that responded to all aboriginal blockades and emergency situations. The committee included representatives from: the directorate; the Ministry of Natural Resources; the Ministry of Northern Development and Mines; the Ministry of Transportation; the Ministry of the Attorney General and the Solicitor General; the Premier’s Office; Management Board; the opp; the rcmp; and, when necessary, the federal government. Political staff were always present, as well as civil servants. The locus of power in the committee was always located in the Premier’s Office. The directorate gave advice and acted as chair, recorder, and secretary, which was usually my responsibility. At the August meeting, the advice provided by the opp, as in the Temagami blockades, was critical. The opp representative accurately stated that the Long Lac members of the blockade were not radical, armed, or dangerous. They wished to negotiate their local grievances out of a genuine sense of frustration. Mike Ivanski, an official from the Regional Office of Indian Affairs in Toronto, was the federal government representative. He stated that the federal government did not care what position the province took. The federal government would not negotiate. The reasoning was that such an act would set a precedent for what was happening to the federal government at Oka. The federal government believed that the only way to get results was to negotiate after the barricades and blockades came down. He reported having discussed the matter thoroughly with Manfred Klein, then acting head of the Specific Claims Branch in Ottawa, who had told him not to negotiate under any circumstances since such a policy never works. Ivanski said that he would listen to the provincial response and take Long Lac’s demands back to the federal government. Premier Peterson’s request was to send a senior civil servant such as Tough, then the deputy minister of Natural Resources, or a local omnr official, to meet with the Long Lac #58 representatives and respond to their grievances. The majority of these were with the omnr; two were with the

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directorate. My advice to Scott and Peterson was to agree to negotiate Long Lac’s highway claim as well as to agree to negotiate a framework agreement, à la Temagami, which would provide a phased approach to negotiating the aboriginal title and rights claim to the area north of Lake Superior. This approach would include the immediate provision of a larger land base for the Long Lac community, which would assist in meeting the treaty land entitlement. This is what was done in the days and weeks ahead. We also learned the meeting about blockades being set up north of Lake Superior at Pic Mobert and Pic Heron Reserves. The First Nation strategy was to block both the northern and the southern railway lines through Northern Ontario, thereby cutting off both passenger and freight traffic nationally. This was achieved for a few days until the blockades were removed voluntarily. However, CN Rail was on its own. If it decided to go ahead and get a court injunction to end the blockades on its railway lines, it had to do so itself. The railway right of way, being on-reserve, was not, of course, situated on land held by the province. In response to the meeting’s demands, I drafted letters for Scott’s signature to Siddon and to Chief Sydney Abraham, which reflected our discussions asking Siddon to appoint a federal negotiator immediately to act with the province and promising negotiations to Abraham. I also prepared a one-page briefing note for Scott, which contained the strategy noted above to get us through the blockade.11 CN’s negotiator did a good job and agreed to Long Lac’s demands to contact the federal government. CN also sought and got from the courts an injunction to end the blockade at Pic Mobert. Trains were running again across the south shore of Lake Superior. This lowered the temperature on these blockades considerably. It also raised the consternation of the federal Department of Indian and Northern Affairs and forced their officials to act under much greater media scrutiny and accountability. Meanwhile, the federal government stuck to its hard-line advice and was getting roasted by the media and by the Long Lac #58 First Nation. By Friday, 17 August, federal officials had caved in. I wrote in my journal “Field of Dreams: If You Blockade, he will come.”12 The federal Department of Indian Affairs sent their local “Indian Agent,” Mitch Phillips, from Thunder Bay to Long Lac #58 reserve. Mitch, dubbed the “Scotsman from the South” by the people of Long Lac, was sent not to negotiate but rather to find out what they wanted. This was almost two weeks after the blockade went up and the demands had been made known on the national media. To make matters even worse, Mitch had been part of the Indian

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Affairs establishment in Thunder Bay for over five years and had never once visited the reserve. Phillips was roasted verbally and publicly by the Long Lac community at a meeting and was sent packing. All of these events were recorded on national television. It was a disgrace. It made all the national weekend newspapers and other broadcast media. This situation fuelled the Northern Ontario blockades at Pic Mobert, Pic Heron, and Armstrong. Blockades also went up across roads and railways in British Columbia. The situation at Oka itself and at Kahnawake deteriorated and worsened.13 Krasnick came back to work from his selling a treaty process in British Columbia after the Labour Day weekend to a province in shambles – blockades had been set up in the north and the south. I noted that it was even reported a blockade had been set up at the corner of Broadview Avenue and Pottery Road in downtown Toronto, close to where I was then residing. All he could say was, forgetting what he had said in December 1989 that no one cares except you: “This is unbelievable.” But he had to believe it – there were blockades on Highway 6 on the Bruce Peninsula by the Saugeen and Cape Croker First Nations; on Highway 54 at Chiefswood at the Six Nations; at US Customs border points on Cornwall Island by the Akwesasne First Nation; on Highway 54 at Alderville by the Alderville First Nation; on Highways 49 and 401 at Tyendinaga and at Picton; on Highway 21 at Grand Bend by Stoney and Kettle Point First Nations; and on Garden River First Nation along the TransCanada Highway at Sault Ste Marie – in addition to the blockades in Northern Ontario. There were reports of jumper cables placed along the main CN line between Toronto and Montreal at Kingston; fifteen sticks of dynamite were found at Bala, near an opp cruiser, in the vicinity of the Mohawks of Gibson Reserve. On the Oneida Reserve near London, bolts had been loosened on the main Ontario Hydro transmission line from London to Windsor and Sarnia, and hydro-electricity had been interrupted while the tower was being repaired. Meanwhile, at Oka, the Army had been sent in for the first time. This was a huge blow to Quebec sovereignty; after the Securité du Québec had bungled the blockade at Oka, it could no longer maintain law and order.14 It was, in short, believable. But the head of the directorate did not know what to do. Things had already been done while he had been away. Soon thereafter, the government appointed Peter Barnes, the secretary to the Cabinet as the interim deputy minister of Native Affairs instead of Krasnick, until the new government was sworn into power. On Thursday, 6 September, the provincial election was held, and the ndp under Premier Bob Rae was swept into power with a majority government.15

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On Wednesday, 12–13 September, I was again at Long Lac. The crisis at Oka was still going on and would continue for a couple of more weeks. The blockades at Long Lac had come down, but it was a very difficult time. Anger was in the air. After the blockade the community had undergone a healing process, or at least the beginnings of what was to be a longer process. In contrast, none of the people who had been involved in these events from within the government ever were offered such assistance. It is much like the effects of a long war. The relationship between the province and the First Nations was changed as a result of Oka. At the meeting at Long Lac, my primary role was to listen to the feelings of anger among the elders and other community members. An omnr district person attended the meeting along with staff from the Ministry of Northern Development and Mines, including John Kennedy who had worked in Northern Ontario for many years and who had married an aboriginal woman. We went through their list of demands that had been made during the blockade. All of them were not only reasonable but also wholly practical. They only wished to continue with their way of life. The community wondered why the omnr kept interfering in their activities and destroying their land. They wanted a resolution on their outstanding land claims and natural resource issues, on hunting, fishing, trapping, and gathering. The community wished to develop their own community rules for these resource activities as a means of exercising their own forms of aboriginal governance. To accomplish these objectives they wished to meet with the members of the new ndp Government on 18 September. When this was not possible, since the new government was not to be sworn in until 2 October, we agreed jointly that I would attempt to get their local ndp member, Gilles Pouliot, to come instead. The Long Lac First Nation stated its demands with great clarity. The community wanted a larger reserve of sixteen square miles and a recognition that they had not entered into the Robinson Superior Treaty of 1850. In the interim they wanted a land freeze on development on one thousand square miles. A formal consultation process was also requested. They wanted assistance in terms of economic development and monies for better community roads. They wanted monies from the Ministry of Northern Development and Mines for a community development strategy. They wanted additional funding for their Alcohol and Treatment Centre, located in the bunker-like, thick-walled former Catholic residential school. The discussion lasted for hours over two days.

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I listened throughout and agreed to attempt to address their concerns. I also agreed to set up a meeting with the new ndp government before it was sworn into power. And then, when Wildman was appointed by Rae (as minister of both Natural Resources and Native Affairs), I assured the community that the commitment made by Scott to hear their grievances would be kept by the new minister. In the interim, to begin the political dialogue, I set up a meeting in the community between them and Gilles Pouliot for the following week. A great deal of credit should go to Pouliot, who agreed to meet with them even though he was soon to be appointed the new Minister of Northern Development.16 The meeting, which was held on 18 September, went very well indeed. We responded concretely to each of the requests made the previous week. Pouliot, although very nervous, was able to respond to questions as I helped him through the process. I was surprised that he did not, for a veteran politician, know his aboriginal constituents very well. We agreed to begin processes to assist in resolving their land claims and to provide a larger land base. To assist them in their own internal organization, I brought along (as a form of gift-giving) a cheque for $25,000 for their community consultation process, which Pouliot gave them. This act showed the community that we were not uttering empty words. We were seriously interested in working with them on their aboriginal governance and economic development projects. The omnr representative responded positively to their natural resource issues. The community even agreed to meet separately with omnr District Manager Dennis Murray the next week to begin a process to resolve the natural resource issues. Pouliot thanked me warmly after the meeting was over in the afternoon. He told me that he would remember what I had done. I never asked him for anything; nor did he ever offer anything.17 In contrast, the federal government had done nothing since Mitch Phillips had visited the reserve earlier that month. Chief Sydney Abraham was vexed and angry at the federal response after the blockades had come down. Federal officials had said that they would not negotiate while the blockade still existed and that they would only do so as a pre-condition of it being lifted. Now that the blockades at Long Lac had come down, the federal government was nowhere to be found. The chief uttered a “curse on their house.” He stated that, after “two weeks of freedom” on their blockades, now there was nothing. “We have,” he observed, “as much clout as Mickey Mouse.”

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Before Scott left office on 1 October and the ndp were sworn into office by the lieutenant-governor the next day, I went up to the 18th floor of “Pink Palace II,” our home on Bay Street, to say goodbye to Scott, John Moffett, and Patrick Monahan, who would become a colleague of mine at York University and be appointed dean of Osgoode Hall Law School, and now academic vice-president and provost. Scott always attracted some of the youngest and the best talent around to support his political work. Moffett and Monahan were particularly effective in their roles. Unfortunately, the political staff of Native Affairs was the weak link in his office. They were totally unable to use their minister to any effect on aboriginal issues. Many times I had to write the minister’s speeches for him and organize things on the ground for a visit. When I was not able to brief him, he was not well prepared and had to make things up as he went along. I thought to myself, as I walked out of the office for the last time, that the “salad days were over.” Scott was not able to save, in spite of his strategy in the taa blockades, the Peterson Government from defeat in 1990. But, then again, probably nothing could have saved it from its own ineptness, especially as demonstrated by the Temagami debacle. Scott seemed to be more interested in the more senior portfolio of attorney general, but then to be fair he was a lawyer. More concerned about court reform than supporting the inherent right of aboriginal governance, he had nevertheless been expected to do more by the First Nations. However, Ian Scott did bring about considerable change in the area of land claims. He established major precedents in validating many land claims for settlement negotiations throughout the province. These have been felt for more than two decades. Within five years, more than thirty land claims were approved for settlement negotiation. A large settlement agreement was reached in 1990 and signed on Manitoulin Island late in July. For the first time in the history of Temagami he made settlement offers to the taa in 1986 and in 1989. However unsatisfactory it may have seemed at the time, they paved the way for negotiations on the Treaty of Co-existence signed with the taa in April 1990. This was a huge precedent, especially for such issues in Ontario. The proposal for the Treaty of Co-Existence was initiated by the taa, and it came through the provincial negotiator Bart Feilders to the provincial Liberals. It became the basis for the current treaty negotiations in British Columbia. For his outstanding efforts, Bart Feilders was fired as provincial negotiator by the ndp Government. This led to the unsuccessful negotiations in 1993 with the taa and no settlement on the Treaty of Co-Existence with the province.18

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No one had ever accomplished this much on land claims in only five years; perhaps no other provincial minister ever will. Certainly the governments that have followed the Liberals have proven to be failures in this area. Certainly the ndp Government under Rae did little or nothing on land claims while they were in power. To be sure with what politically came before and thereafter, Scott left a long shadow on land claims and, through his support for Meech Lake, a rather mixed legacy on how Ontario processes aboriginal issues.

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Elected in September 1990, Premier Bob Rae of the ndp had little affinity for aboriginal issues, then and thereafter. Although he joined the Temagami blockades in 1989, he had lent his support only as they were coming to an end. On assuming power, he immediately showed that aboriginal issues were not to be a priority, except as an aspect of diffuse and abstract national diplomacy wholly within constitutional discussions. He took control himself. He put all of his aboriginal eggs into one constitutional basket. The focus was to be on the inherent right of aboriginal self-government that would be part of the Ontario position on the constitutional talks, which ended in tatters a year later with the Charlottetown Accord. Everything else was put “on hold” for the next five years. This was apparent within a few days of the ndp takeover. Rae had developed a highly abstract, romantic, and hollow view of aboriginal self-government. Thomas Walkom, a political commentator and writer, has argued that, in part, this commitment had developed “after a trip to remote, impoverished Indian communities along the Hudson and James Bay coasts.”1 Rae was a lawyer, and his abstract ideas on this subject came from socialism and English common law. After that 1990 trip to Northern Ontario, Rae wrote, “The meaning of the principle ‘self-government’ suddenly became very clear, and its historic parallel with the demands of other colonized people around the world was immediate and visceral,” and it was on this basis that there was a “compelling need to accept the claims, the rights, the history, the personality, yes, the nationhood of those who were here before European settlement.”2 And yet it was not on this basis that Rae, and his colleagues, sitting as the opposition in 1989, had severe-

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ly criticized Scott’s proposals on self-government as too abstract and not concrete or far-reaching enough. Rae’s government took power in October 1990. onad was asked by the new government to prepare a speech for Rae to deliver to the University of Toronto Conference on Aboriginal Sovereignty on the afternoon of 2 October 1990.3 Mark Stevenson and I wrote Rae’s speech. Attending the same conference was the head of the onad. Krasnick did not accept the concept of the inherent right of aboriginal self-government, much less cotton to it as a fact. In his speech, he argued for aboriginal self-government along a municipal-like model, which contradicted the premier’s words.4 Over Krasnick’s advice, we had written into Rae’s speech that Ontario recognized of the inherent right of aboriginal governance. Krasnick sanguinely remarked at the time that this recognition would be enough for the ndp to make a political mark in the next five years. For once, unfortunately, he proved to be right. Effectively, the ndp did very little on aboriginal affairs after 2 October 1990.5 The ndp Government became the caretaker of aboriginal issues, cleaning up what the Liberals under Scott had no time to finish before they left office. This included the Manitoulin Island agreement, negotiations on Mississauga River #8 northern boundary, Point Grondine, Garden River, Golden Lake, and Batchewana. Many issues also unravelled, and there were many notable failures, for example, the Temagami settlement negotiations, Walpole Island unceded aboriginal title issues, and unsold surrendered land issues of the Saugeen and Cape Croker First Nations on the Bruce Peninsula. Nothing was done on these or other issues regarding land rights and aboriginal governance until after 1995. The Ontario recognition of the inherent right of aboriginal governance was announced as one of the ndp Government’s first measures in Rae’s speech at the University of Toronto conference. He stated that we must first of all recognize and moreover accept the basic historical premise of the relationship between aboriginal and non-aboriginal people: “First came the land, then came the people, and the people exercised power and yes, sovereignty in a system of law over that land. We now begin to realize – I say ‘we,’ I mean non-native people – that there was a very sophisticated, very highly developed culture, civilization, and system of law.”6 On the constructive side of the ledger, Rae promulgates recognition, respect, fairness, and aboriginal sovereignty. On the other side, as Rae also indicated and as the earlier chapters show vividly, there is in Canadian society a refusal to recognize aboriginal people as human beings:

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We are a new country. We represent something new in the world. And yes, we share the land. But we sure as hell haven’t shared it very fairly, have we? And that is what is at stake here. I am not going to pretend that the issues are easy. We know the tensions that exist within communities. We know, bluntly put – and let’s call it what it is – we know the racism that is still there, still a fact of our society. It is an ugly fact of our society.7 Rae, in his memoirs, published six years later, does not refer to this speech at all. This is curious given his apparent commitment to what he called in it “Our Home and Native Land.”8 As the provincial negotiator, I went again to Long Lac #58 Reserve early in October 1990, around the same time Rae was making this speech. The harsh smell of winter, dark and cold and biting, had come to Northern Ontario. Gradually the day darkened and the rain fell, lightly, slowly at first, in the autumn afternoon on the shores of Long Lake, far north of Lake Superior and Lake Nipigon. It was a time of healing and cleansing at Long Lac, just a few days earlier the community had held a ceremony and a feast to take away the anger stemming from their recent blockade and the government’s inaction. Jeremiah (not his real name), a son of one of the pre-eminent trappers at Long Lac, is an artist and an interpreter of life. Self-taught, he learned to paint while in prison. One of Jeremiah’s prominent artistic themes is the dispersal of aboriginal people to their winter hunting grounds as a consequence of the presence of non-aboriginal people taking over their summer places. Their winter grounds are a refuge without boundaries of time or space and are places of renewal. This is a profound theme of universal tragedy, poignant suffering and still part of the present aboriginal reality. Jeremiah’s ability to capture that sense of beauty and hope and calm epitomized the history of aboriginal people in Canada. After our meeting at Long Lac, I was approached by two First Nation citizens, Jeremiah and another First Nations citizen, Eli (not his real name), to give them a ride to Thunder Bay, where I was catching a plane back to Toronto. At the airport, I was going to meet Chief Janice Henderson from the Stangecoming First Nation and introduce her to the Howard Hampton, the new ndp attorney general of Ontario. Because of the weather in Northwestern Ontario, that meeting never took place.

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Over the Hills to Thunder Bay Late in the afternoon of 3 October 1990, Jeremiah, Eli, and I were driving west and southward towards Thunder Bay via Beardmore. We were driving in the rain to the rhythm of Gordon Lightfoot’s rendition of “Me and Bobbie McGee” playing on my cassette deck. Jeremiah and his friend Eli hadn’t heard of Lightfoot, but then why should they have? But they liked his sound. They didn’t really know who I was, either. We drove along the TransCanada highway through Geraldton. I knew my fellow travellers were irritated by my slow driving and overabundance of caution. The landscape became increasingly desolate as the weather removed the last remnants of autumn colours, which a few weeks earlier on my last trip to this north country had been so vivid. As we drove, I thought about our meeting at Long Lac. I recalled our discussions about community rules and had had another opportunity to speak with community elders.9 The provincial government had already been of some assistance in the last few months by forcing the federal government to act on the railway blockades and by ending the blockades peacefully through appointing an aboriginal opp officer to act as a negotiator. I was thinking of the next step, which was to bring in Bud Wildman – a Metis, and the new ndp minister handling Native affairs – to Long Lac. Then we would be able to re-enact the ancient treaty-making process that had not included these people 140 years earlier. A meeting was scheduled for Friday, 2 November, at which time the new minister was to hear the list of issues from Long Lac and make decisions on behalf of the Crown. The Long Lac people wanted me to act as a mediator at the meeting and put their issues before the minister myself. This was a part of the treatymaking process that was beyond my role, and reluctantly I could not agree to their request. Alternatively, I promised to intercede and place the issues before Wildman ahead of the meeting so that he would be able to respond to their requests at the meeting itself. Most importantly, the Crown would be agreeing and recognizing that the Long Lac community had not signed or participated in the Robinson Superior Treaty of 1850. The circle of time would then be renewed. I knew Jeremiah and Eli would not have the slightest interest in these thoughts. They were irrelevant to them, and they were right. Change would be a long-term process. The first step would be to re-enact and assist in repairing the treaty-making process. I remained silent as I watched the road. I realized what I was doing there had everything, and yet nothing, to

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do with Eli and Jeremiah, their past or their present. With mixed feelings, I knew this would be my last trip to the homeland of the Long Lac people and to the North. When we reached the outskirts of Beardmore, they were hungry. I wanted to make sure I caught my evening flight from Thunder Bay to Toronto. That meant I had only a little more than two hours to spare, and I was supposed to meet the chief and Howard Hampton. We stopped at a roadside store where Jeremiah and Eli bought some snacks, then they announced they wanted to stop for a drink at the Northwest Frontier Hotel in Beardmore. Reluctantly, with great foreboding, I obliged. After a racist incident, in which fortunately no one was injured, we left the hotel and Beardmore. By now dark had fallen, and it was raining very heavily. I still had to catch my flight at Thunder Bay for Toronto. In Thunder Bay, after dropping off my two companions at a downtown hotel, I met Howard Hampton, who was on the same flight. Once there, I helped the novice attorney general find his driver and hitched a ride home, myself in the back seat and the rookie ndp minister in the front. Would this mark a change? Could there be an alternative path for Jeremiah and Eli? Or would the resistance be the same as it had been under the Tories and Liberals? The answer was obvious: land claims are political creatures and politicize everyone with whom they come into contact. It was most likely that the ndp had other priorities and no political will on aboriginal issues.

Some Commitments at the Long Lac Reserve On 2 November, Bud Wildman travelled to Long Lac #58 Reserve, where he met with the chiefs from Long Lac and Pic Mobert, Chief James Kwissia, and Chief Roy Michano from Pic Heron Bay. I met with the community at Pic Heron Bay on 29 October to begin a comparable process. The grievances were similar, except that Pic Heron Bay was also interested in small hydroelectric development. Later, I also visited the community at Pic Mobert and resumed discussions on a broader scale, through the Indian Commission of Ontario, involving reserve land and a larger land base for the Robinson Superior Treaty communities that had not signed the 1850 treaty. I had just met Wildman in late July during the election at Mississauga Reserve #8, and we had had a rather testy exchange. A month earlier at a meeting at the Mississauga River Reserve, on 26 July, Wildman, then the

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mpp for the area, showed up for our meeting as an observer and to ostensibly win some political votes on the reserve during the election campaign. The meeting was to discuss the unsold reserve lands. In the middle of the meeting, Wildman had challenged my credibility in the community. He effectively stated that I was lying to the community members present at the meeting when I said that I was in a position to begin negotiations with them and that I had already begun similar negotiations with the Garden River First Nation at Sault Ste Marie. Such negotiations had been proceeding well and quite rapidly for many months. I told him straight out that he had better check his facts with the people at Garden River because I had been appointed the provincial negotiator and had been negotiating for some time with the First Nation. His response was curious. Wildman sat ramrod straight and grew flushed. He quickly left the meeting and made a telephone call to Garden River. When he came back he was embarrassed. I was right, and his information – wherever, he got it, I do not know – was completely false. But he never apologized to me during the meeting or after. After he became my boss as minister, although we never spoke of this event, we worked very well together on a number of various negotiations, bypassing his deputy, Krasnick.10 At the November 1990 meeting, the Long Lac community presented its list of grievances. Wildman responded specifically and constructively to each one of them. He made a commitment to negotiate the land claims, to establish a process for land claims, and to give them a larger land base. As the minister of natural resources he had offered land for economic development to each of the reserve communities, stating that this was basic to their survival. The amount and location of this land was to be open for discussion and the subject of the negotiations. He offered to resolve their natural resource grievances, including the negotiation of co-management agreements and granting them the “first right of refusal for trap-lines.” A new process would be established by the omnr to address their natural resource issues. Wildman stated that the new government recognized and respected their inherent right to govern themselves (based on the premier’s speech of 2 October) and recognized the fact that they had not signed the Robinson Superior Treaty of 1850. Thus, the government recognized their aboriginal title and rights to their homelands. Michano responded that what he saw across from him were the “Twelve Apostles.” By this statement he challenged Wildman and Pouliot to turn their good words into action and deeds. He also meant that he did not believe what

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they had told community representatives at the meeting. Michano cautioned Wildman and Pouliot that they were “rookies” in this business and that he wanted to see that they fulfilled their commitments to negotiate. He asked Wildman for a letter that outlined all of the commitments he had just made. Wildman made a commitment to provide such a letter. After a delicious lunch of moose stew prepared by the community, the talks resumed. The focus was on the need to develop processes to resolve the land claims in the area north of Lake Superior and to see to it that a larger land base was provided for each of the communities. Wildman reiterated his understanding that the communities of Long Lac, Pic Heron, and Pic Mobert had not signed the Robinson Superior Treaty of 1850. He renewed his commitments to negotiate all of the land claims as well as a separate new process to enlarge the reserves. This would be accomplished under the new government’s commitment to the inherent right of aboriginal governance as announced by the premier on 2 October. To provide equity to the process, he agreed that the onad would provide the financial resources to the First Nations to participate meaningfully in them. He also agreed to approach the federal government to assist the First Nations in getting them into these new processes. The chiefs wanted these commitments from Wildman made in writing. They simply did not believe him. Two days after our historical meeting at the Long Lac #58 community I attended the American Society for Ethnohistory meetings hosted by the University of Toronto. On Sunday morning, I presented the paper that I had prepared in March 1990 and that I had intended to present at the University of Helsinki: “Making a Circle of Time: An Exploration of the Notions of Time and Territoriality.” Since I had no time to prepare, I had intended merely to read the paper in its entirety. Instead I got up and just talked about “Making a Circle of Time.” At the end of the session, during the question period, an aboriginal woman commented on my paper. She said that I “think like an Indian” and wondered why I worked for the provincial government. I was blown away by the statement. I could not respond. I had no answer to that comment. She was right. I decided to leave right then and there. But leaving is never easy after thirteen years. It took me a whole year before I was able to leave. But I left and have never regretted this decision. I have worked for First Nations since 1992. The ndp Government made these commitments at Long Lac #58 Reserve as the first step in developing a new process. But, in the five years that followed, the ndp Government did not follow through on its com-

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mitments to resolve either the land claims or the enlargement of the reserves. Even the press release I had written regarding the government’s commitment to enlarging the Long Lac #58 Reserve was rescinded by the minister’s office the next week, after it had already been released and reported in Northern Ontario newspapers. It was, especially after Rae’s commitment to the inherent right of aboriginal self-government, a shameful beginning for the new political kids on the block. To his credit, on 12 December 1990, Wildman signed a letter that I had prepared for his signature, which agreed with the grievances of the Long Lac community, voiced at the November meeting (noted above). The negotiations subsequently became a meaningless process under the Indian Commission of Ontario (ico).11 The letter laid the framework for treaty negotiations with the Long Lac #58 and other First Nations in the area north of Lake Superior. To date, nineteen years later, these negotiations are ongoing with only one community, and litigation is proceeding.12 Like many other aboriginal issues, which had a large price tag on them, the commitments made at Long Lac were not fulfilled by the new ndp Government. The Temagami negotiations were not unique.13 And after the Harris Tories came to power in 1995, the ineffective ico itself disappeared, leaving no forum for the mediation of aboriginal issues in Ontario. The greatest achievements that were made on aboriginal issues came under the Liberals during the 1985–90 period. Under the Tories, you always knew who the enemy was. The ndp majority government made many commitments, but, unlike the Tories and the Liberals, it did not follow through on them. It was dishonest. It did not listen. It did not keep its promises. Fine words and fair promises are not enough. There must be action commensurate with the promises. Without action, the promise of the inherent right to aboriginal governance is indeed a very hollow thing. There is a serious need for a historical reassessment of the Ontario ndp’s commitment to aboriginal people and their issues.14

The Statement of Political Relationship From the moment I joined the onad in 1987, I campaigned relentlessly for a new relationship between First Nations and the provincial government, based on a nation-to-nation concept. This concept would reaffirm and recognize the sovereignty of aboriginal nations. This idea was also an extension and expansion on the historical treaty relationship embodied in the

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Covenant Chain of Silver. This same notion was accepted by the Royal Commission on Aboriginal Peoples in 1996. The response to this idea was received enthusiastically at community meetings by First Nations. The only problem I had was that my colleagues in the onad, having little or no knowledge of the historical roots of the concept, continually blocked it as a fantastical idea dropped on them by aliens from outer space. When the ndp came to power in October 1990, I raised this idea again; this time there was a constructive response from Wildman. This time the idea of a new relationship of nation to nation flowed from the premier’s speech of 2 October 1990, reflecting the inherent right of aboriginal governance. After some negotiation, which took place over six months, the idea – now embedded in the Statement of Political Relationship, much watered down and made safe by provincial lawyers – was signed symbolically at the sacred place of Mount McKay on the Fort William Reserve on 6 August 1991. Instead of being a true nation-to-nation agreement, it had become a government-to-government document. As such, it had lost some of its lustre and meaning. However, as a significant document in the history of the province, it bears the signatures of Bob Rae and Bud Wildman as well as the signatures of the following representatives of the First Nations: Ontario Regional Chief for the Chiefs of Ontario Gord Peters; Grand Chief Bentley Cheechoo of the Nishnawbe-Aski Nation; Grand Chief Harry Doxtator of the Association of Iroquois and Allied Indians; Grand Chief Steve Fobister, Grand Council Treaty #3; Grand Chief Joe Miskokomon of the Union of Ontario Indians. Also signing were independent First Nations representatives: Chief Joseph Thompson, Lake Nipigon First Nation; Doug Sinoway as the Whitesand First Nation; Roy McDonald of the Islington First Nation; Grand Chief Mike Mitchell of the Mohawks of Akwesasne First Nation; William Montour of the Six Nations of the Grand River; Chief Howard Pamajewon of the Shawanaga First Nation; Chief Gary Potts of the Teme-Augama Anishnabai; Chief George St Germain of the Chippewas of Rama; and Chief Robert Williams of the Ojibways of Walpole Island First Nation. It is perhaps also noteworthy that the late Chief Williams signed the document only as Chief of the Ojibways of the Walpole Island First Nation and not as Chief of the Council of Three Fires at Bkejwanong. The Ottawa and the Potawatomi were not represented and did not sign the “Statement of Political Relationship.” This act is entirely in keeping with the independence of their histories.

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The “Whereas clauses” stated that “the First Nations … exist as distinct nations, with their governments, cultures, languages, traditions, customs and territories” and that the province recognized “that its relationships with the First Nations are to be based on the aboriginal rights, including aboriginal title, and treaty rights of First Nations recognized and affirmed in the Constitution Act, 1982, including those formally recognized in the Royal Proclamation of 1763, and in the treaties and agreements with the Crown.” Furthermore, it recognized the constitutional limitations of the province’s authority. The object of the “Statement” was to attempt to “minimize conflicts between Ontario and the First Nations,” and to have the “need for a mutual understanding of the government(s) to government relationship between them.” The “Statement” referred to the federal government and, by implication, respected the special treaty relationship between the First Nations of Ontario and the federal government. The Tory federal government under Brian Mulroney did not sign the “Statement,” nor was it ever expanded to include that government. It was a remarkable agreement given its substance. In it the First Nations and Ontario agreed on the following five points: 1 The inherent right of self-government of the First Nations flows from the Creator and from the First Nations’ original occupation of the land. 2 Ontario recognizes that under the Constitution of Canada the First Nations have an inherent right to self-government within the Canadian constitutional framework and that the relationship between Ontario and the First nations must be based upon a respect for this right. 3 The First Nations and Ontario – involving the Government of Canada where appropriate – are committed to facilitate the further articulation, the exercise and the implementation of the inherent right to self-government within the Canadian constitutional framework, by respecting the existing treaty relationships, and by using such means as the treaty-making process, constitutional and legislative reform and agreements acceptable to the First Nations and Ontario. 4 Nothing in this “Statement of Political Relationship” shall be construed as determining Ontario’s jurisdiction or as diminishing Canada’s responsibilities towards First Nations.

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5 This “Statement of Political Relationship” expresses the political commitment of the First Nations and Ontario and is not intended to be a treaty or to create, redefine or prejudice rights or affect obligations of the First Nations of Ontario, or the aboriginal or non-aboriginal peoples of Ontario.15 It is noteworthy that, since it was signed, it has never been put into effect in the provincial ministries’ relationships with First Nations. Since it was “political,” it was defied by the ministries, who refused to act on it between 1991 and 1995, or since then.16 Only Ontario Hydro (as it was then known) took it seriously.17 Ontario Hydro developed, in keeping with the “Statement,” a new aboriginal policy for the corporation and, moreover, implemented it. Negotiations based on the “Statement” and Ontario Hydro policy were implemented and signed.18 (However, Hydro One Inc. has apparently dropped this corporate policy from its current website.) This was quite a remarkable and an unintended result.

Aboriginal Issues under Rae It was ironic that one of the persons arrested in the ensuing non-aboriginal environmental blockade in 1989 was Rae, then the leader of the opposition. In his “personal reflections,” Rae wrote: During our time in government some years later, we almost got an agreement on a comprehensive land claim, but it failed to pass in a band referendum by a handful of votes. Development in Temagami is now controlled by a Tory government, which has expressed its strong opposition to the land claim. They are also planning to allow more logging and development in this unique area than even recommended by the local community council.19 Notwithstanding Rae’s arguments about the high regard he had for professional civil servants because his father had been one of them, his government and ministers approached the bureaucracy with a political attitude resembling paranoia.20 This view was translated into the area of aboriginal issues, especially the flagship area of Temagami. Feilders, one of the architects of the Treaty of Co-Existence, was fired. Rae replaced him with Grant Wedge, who took

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on the role of provincial negotiator. Wedge had at first been appointed special political assistant to Wildman in 1995 and then deputy minister of Native Affairs. Murray Coolican, a personal friend of the Rae family,21 became deputy minister of Native Affairs after Krasnick left for British Columbia early in 1992. In early October 1990, Rae had begged Krasnick to stay on for a year, even though Krasnick’s price was very steep: promotion to deputy minister as secretary of the onas. Krasnick was in the driver’s seat, since he had already negotiated a position with the federal government as the chief negotiator for British Columbia of the BC Treaty process during the Oka crisis. That Norman Spector, Mulroney’s chief of staff, was an old friend of his from their McGill law school days did not hurt his cause. He insisted that he be promoted and appointed deputy minister of Native Affairs and he got his wish. The directorate became a secretariat, and Krasnick became by Order-in-Council, the secretary of the “new” secretariat and a deputy minister. Thereafter onas was completely politicized by Rae.22 It was the ndp government under Rae that killed the taa settlement and initiated a court action to remove the cautions in 1993–95. The ndp showed that it had on the Temagami issues, among many issues, backtracked from its rhetoric into a bumbling, inexperienced crew waffling this way and that. They had other, bigger priorities. One could well predict that the taa resistance movement of more than 150 years would be seen by historians in the twenty-first century as a major advance for First Nations. It was initiated by aboriginal people to protect and delineate the concept and the practice of the integrity of aboriginal land rights in the context of aboriginal sovereignty. It could be seen as a breakthrough for the recognition and the respect of aboriginal title and the aboriginal understanding of the treaty-making process. In future, the actions of the taa may be seen, as we now view the aboriginal resistance movements of 1869–70 and 1885, as significant events. In this historical scenario, the denial of the Bear Island case may be seen as another failure of the Ontario court system regarding addressing significant aboriginal issues. It will assuredly not be a failure of the struggle for self-determination or for Aboriginal title or treaty rights. This policy gap could explain, in part, Rae’s speedy negotiation of an aboriginal-run casino built at the Rama Reserve an hour north of Toronto. I was even approached in 1991 to be the provincial negotiator on aboriginal gaming and casinos. I declined on moral grounds. I do not believe in large-scale gambling and its effects on individuals and their families.

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“Moral grounds” were not a consideration of Rae’s ndp Government; they wanted the millions of dollars from taxing the poor.23 Yet it was not a political aberration of Rae’s political regime. To explain this gap, one commentator has pointed to “keeping a distance” as the reason why this was “one area in which Rae’s government seemed to remain steadfast – its commitment to Native self-government.”24 However, disputes between natives and non-Natives over fishing rights, tend(ed) to occur well outside of Toronto. Many in the Toronto-centred ndp government dismissed the complaints about the government’s native agenda as the racist ranting of red-necked northern whites. Although this view is unclear, its existence may have permitted Rae to maintain, for some time, a romantic view of native governments. But this does not always explain why little or nothing was done about urban aboriginal self-government in Toronto, where more than 100,000 aboriginal people live and work. Toronto is, arguably, the largest “reserve” in the country. Rae had supported the Meech Lake Accord, which was defeated on 23 June 1990. Meech Lake had shut out aboriginal people from becoming founding peoples in Canada’s constitution. Likewise, by focusing strategically on the Charlottetown Accord as well in 1990–92, he did not address practical negotiations on land claims or the issues of aboriginal sovereignty. There have been many attempts to explain the ndp’s dismal record on aboriginal issues, but none of these really wash. One commentator has argued that “one disillusioned ndp official who had worked on the Aboriginal agenda had stated that ‘We raised expectations too high but never delivered’ and ‘We signed the political accord and took the high road in the Charlottetown Accord … but we delivered very little on the ground.’”25 Another stated that it was a case of “one step forward, two steps back.” The 1991 political accord – the “Statement of Political Relationship” that came out of Rae’s speech recognizing the inherent right of aboriginal governance – had, according to this theory, “created an unintended result; it allowed the more pressing native problems to be lost in a miasma of constant consultations and negotiations. Some native bands … were simply overwhelmed by government demands for consultation. ‘We kept faxing them: What do you think of this? Do you have an opinion on that?’ A lot didn’t have the capacity to handle it.”26 But this begs the real question: why didn’t the ndp Government provide First Nations with adequate resources or with practical assistance, so that they could cope with the issues? This unofficial ndp “explanation” that “they couldn’t handle it” is self-serving and fundamentally dishonest. It simply confuses cause and effect.

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Once more the onas became a mere “post office” under Rae’s direction. For example, on 23 September 1991, Rae made a conscious political decision to close down negotiations on land claims and self-government. At the caucus meeting at Honey Harbour he decided to shut down negotiations and put all his efforts into the Charlottetown Accord. I was told about this decision by onad senior management at the end of October 1991; I was also told that I could stay on and collect my paycheque for the next four years. I told them I had better things to do with my life and walked out of the office, never to return. It was a good decision. The ndp and its failed initiatives were followed by the Tory Government under Mike Harris. Once the Tories were back in power, there was even less room for negotiating aboriginal issues. The most flagrant example of this was the resistance at Ipperwash in September 1995 and the death of Dudley George.

The Tories and Ipperwash, 1995 The racism Rae spoke about in his speech of 2 October manifested itself directly in the events at Ipperwash in Southwestern Ontario on 6 September 1995. The Stoney Point First Nation occupied Ipperwash Provincial Park, claiming it as part of their reserve after Labour Day weekend, when the park closed for the year. This area has always been regarded by the Stoney Point community as a sacred place. In response to this occupation, newly elected Premier Mike Harris ordered the opp to clear the “bad Indians” out of the park. The opp had the support of the Canadian military. In the ensuing events, Dudley George was killed. George was an unarmed protestor taking part in the resistance. This use of violence was in stark contrast to the way in which the Temagami blockades as well as the Northern Ontario blockades had been handled by the Liberal Government and the opp in a much more dangerous situation during summer 1990. There simply was no urgency or need to remove the protestors from a park that had closed for the season. Rudy Platiel, an aboriginal reporter with more than twenty years experience in aboriginal issues, described the shooting in the Globe and Mail: An interview transcript quotes a police officer as saying he fired the first shot during a fatal confrontation at Ipperwash Provincial Park in 1995, says a source close to the family of slain native protester Anthony Dudley George.

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The policeman’s statement contradicts the official version maintained by the Ontario Provincial Police that officers discharged their weapons only after shots were fired at them by protesters … The second document indicates that even before the opp began a buildup of 200 officers at the Park, a cabinet minister was advised in a briefing note that there had been no violence and the protest group of 30 to 40 people included women and children … It is that latest round in a controversy that continues to haunt the Ontario government over its handling of an occupation that escalated into the police shooting of Mr. George, the first native killed in a land dispute in Canada in this century … After the shooting, Mr. Harris denied that he or his cabinet ministers were involved in the decision to use force on the protesters. Both he and a senior opp official maintained that it was entirely a police decision. The park incident grew out of the occupation by native protesters of a nearby military base that was built on land expropriated from Indians during the Second World War. The day after the provincial park closed for the season on Labour Day weekend, native protesters marched in, claiming it contained a sacred burial ground. The opp began a buildup of officers that included a heavily armed special tactical unit. Just before midnight on Sept. 6, police in riot gear began moving in the dark on demonstrators at the entrance to the park. Two juveniles drove a school bus at the officers and police opened fire. Mr. George, who was standing some distance from the bus, was hit and killed. The morning after the shooting, the opp issued news releases saying the first shots were fired at officers from the school bus that was being driven at officers. Since then, the opp have maintained that its officers feared for their safety. But the source close to the family says that on the interview transcript, one officer said he did not hear any shots before he fired the first shot while another officer said he heard the first shots come from a police position, not from the demonstrators. Acting opp Sergeant Kenneth Deane, second-in-command at the Tactics and Rescue Unit at the confrontation, was charged last summer with criminal negligence causing death after a 10-month investigation by the siu.27

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There had been a deliberate choice of the province to renounce peaceful negotiations and initiate violence against aboriginal peoples.28 Sergeant Deane was subsequently charged and convicted of the charges against him and served his sentence. He was the “fall guy” for Harris and his government. He subsequently died in a traffic accident early in 2006 before he was able to testify at the Ipperwash Inquiry.29 Harris refused to hold an enquiry into the death of Dudley George. He is still denying his own and his government’s guilt and responsibility in the death of Dudley George.30 The George family launched a civil suit against Harris and his government, but it was ended when the Ipperwash Inquiry was established in 2003 and Justice Sydney Linden subsequently issued its final report on 31 May 2007.31 This final report in four volumes and over fifteen hundred printed pages revealed the disconnections and miscommunications between the opp and the aboriginal protestors who had been occupying the provincial park. There had been many instances of inappropriate and culturally insensitive remarks made by opp officers towards aboriginal people. These were revealed during the inquiry in tape-recorded conversations and radio transmissions occurring on 5 and 6 September 1995. On numerous occasions there had been racist remarks made by the opp, and the final report stated that the conduct among members of the police contributed to the lack of a timely, peaceful resolution to the occupation.32 There is little doubt that, as shown by this final report, the key players in the police neither respected nor understood the protestors’ objective in occupying the park. The final report stated that, on 6 September 1995, the then Premier of Ontario Mike Harris had sought an injunction to remove the protestors from the park within twenty-four hours. The approach by the premier towards the occupation was far more aggressive and drastic than suggested by the attorney general, who had wanted a slow and cautious approach in resolving the matter.33 Harris’s actions came under question during the inquiry. It was an unrealistic approach to place a twenty-four hour limit on the removal of the protestors from the park. The Honourable Sidney B. Linden, the inquiry’s commissioner, wrote unequivocally that “[t]o maintain police independence, the government cannot direct when and how to enforce the law. Neither the Premier, the responsible Minister, nor anyone in government should attempt to specify a time period, such as twenty-four hours, for the occupiers to be removed from the Park.”34 The sudden actions of the opp and their tactical units storming the park led to a con-

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frontation between the police and the First Nations’ occupiers. During the confrontation, in which no firearms had been found on any of the occupiers of the park, Dudley George was shot three times by one of the officers, who erroneously claimed that Dudley had a rifle.35 During the inquiry process, there had been no evidence to suggest that Dudley George had a rifle or, in fact, that any of the occupiers of the park had any firearms whatsoever. Many of the officers who testified at the inquiry corroborated this evidence. The inquiry had also uncovered that the police and tactical units involved were not trained to deal with aboriginal protests. They had treated the group of protesters as if it had been a rioting soccer crowd or a mob of unruly strikers. It appeared from the beginning of the occupation that leadership – from the premier down to the opp – appeared to be rather insensitive and unaccustomed to aboriginal issues. This situation took place in spite of the lessons learned from the Temagami blockades and the blockades in Northern Ontario in support of Oka. The final report found that there was no attempt at resolving the occupation of the Ipperwash Provincial Park in a cautious and timely manner. The necessity of force and a twenty-four-hour limit on removing the occupiers set by Harris was neither acceptable nor realistic. The end of the occupation resulted in the death of an unarmed man who had been peacefully protesting the rights of aboriginal people in a provincial park. The death of Dudley George and the confrontation between the opp and the occupiers of the park on 6 September 1995 would have been prevented had both the provincial government and the opp taken a more cautious and understanding approach towards resolving the matter peacefully. The final report contained numerous recommendations, involving both the investigation into and the findings of the Ipperwash Inquiry regarding federal and provincial policy issues and policing matters pertaining to the provincial government. Specifically, it led to the creation of the stand-alone provincial Ministry of Aboriginal Affairs. Some of these key policy issues and findings are highlighted and listed below.36 Policing and the OPP • The opp should develop a strategy to restore relationships with both aboriginal and non-aboriginal communities after an aboriginal occupation or protest. The provincial, federal and municipal governments should support and participate in this strategy. This strategy should be distributed to interested parties and posted on the opp website.

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• Police planning for responding to an aboriginal occupation or protest should include: (a) A communication strategy for important messages that ought to be conveyed to the occupiers; (b) The technical aspects of how police would communicate with the occupiers; and (c) Specified people outside the police service who could effectively communicate with the occupiers. • All telephone calls to and from the command post should be recorded and minutes should be kept of all meetings of the Incident Commander. Incident Commanders should continue to be accountable for the keeping of accurate, detailed notes at the time of events.

Provincial and Federal Policies • The provincial government should invite the federal government to

participate in interministerial “blockade” committees to inform and coordinate governmental responses to aboriginal occupations and protests when a potential federal interest is engaged. • The Ontario Secretariat for Aboriginal Affairs, in consultation with aboriginal organizations, should compile a list of available negotiators and facilitators could assist the government to quickly and peacefully resolve issues that emerge. • The provincial government should commit sufficient resources to the Ministry of Aboriginal Affairs to enable it to carry out its responsibilities. The budget for the Ministry should include funding for a revitalized land claims process in Ontario, for the Ontario Aboriginal Reconciliation Fund, and for programs to improve aboriginal/non-aboriginal relations in Ontario. • The provincial government and Ministry of Aboriginal Affairs should create mechanisms for obtaining input from aboriginal communities on planning, policy, legislation and programs affecting aboriginal interests. • The federal government should issue a public apology with appropriate compensation to the Kettle and Stoney Point First Nation for the failure of the federal government for more than 60 years to honour its promise to return the lands to the First Nation. • The provincial government should establish a permanent, independent and impartial agency to facilitate and oversee the settling of land and treaty claims in Ontario. The agency should be called the Treaty Commission of Ontario.

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• The provincial government should make every reasonable effort to establish the Treaty Commission of Ontario with the full cooperation of the federal government. If that is not possible, the provincial government should establish the Treaty commission of Ontario on its own in cooperation with First Nations in Ontario. • The provincial government should prepare plain language public education materials regarding aboriginal burial and heritage sites. • The provincial government should improve public education about its land claim policies.

These recommendations, which might have prevented the unfortunate events at Ipperwash Provincial Park, were made in the final report. In autumn 2007, the Ministry of Aboriginal Affairs and its new minister, Michael Bryant, accepted and undertook to implement the recommendations that addressed the Ipperwash issues and to use them to resolve other longstanding land rights disputes. However, both the provincial and federal governments will need to implement these recommendations to bring about a place for fairness. During a news conference on 21 December 2007, Bryant announced that Ipperwash Provincial Park would be returned to the Chippewas of Kettle and Stoney Point First Nation: “We are sending a clear signal that the McGuinty Government is acting on the premier’s ambitious agenda on aboriginal affairs.”37 In the interim the land and the park are to be co-managed by the community, the government, and the First Nation, after which it will be transferred to the First Nation permanently. Sam George, Dudley’s brother, applauded the decision by Bryant to return the land, as he stated: “It shows it’s like a game of hockey. We can all play on the same forward line together.”38 This initial step by the Ontario Government to return Ipperwash Provincial Park (as outlined in the Ipperwash Inquiry) is an important step in addressing the key land rights issues that have plagued both the provincial and federal governments for many years. The issues in the 1995 events at Ipperwash were to be echoed at Caledonia. This was a very different situation from Ipperwash, where there was one “dead Indian.” The Six Nations began their resistance to claim the rights to their land in 2006; an action of peace that continues today. Prior to Ipperwash, the role of the opp had always been to keep the peace during confrontations with aboriginal protestors and sometimes even to negotiate peaceful resolutions with them. This practice could only have been altered by direct instructions from a premier whose intent was not to

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negotiate but to impose his own will. This reluctance to negotiate, this refusal to recognize the rights of First Nations is why Oka happened and why Ipperwash happened and why it will happen again in spite of the recommendations of the Ipperwash Inquiry. But there are alternatives. Peaceful negotiations are possible, as was evident in the events of the Temagami, Batchewana, and Long Lake blockades. The willingness to negotiate has always been a part of First Nations dealings with the non-aboriginal government. So it is up to the government, to the political powers that be, to initiate a process that honours and recognizes aboriginal rights and to propose initiatives that can be fulfilled and honoured. Hopefully, in the long term, the outcome of the Ipperwash Inquiry will be to put the Ontario Government back on track with aboriginal issues and create a place for fairness.

Retrospect: Towards a Place for Fairness

During the Temagami blockades, I recall being in the Legislative Building at Queen’s Park for a Cabinet meeting. As the premier and Cabinet attempted, with frustration and a great deal of futility, to address the Temagami land rights issues, I looked up on the wall of the room. There, staring at me was a large painting of the signing of the Toronto Purchase, by Toronto artist C.W. Jeffreys (1868–1959). The non-aboriginal visitors involved in this treaty could not understand the aboriginal peoples they were negotiating with, let alone their issues. Jeffreys’s painting reflects how aboriginal people and their culture had been conquered or surrendered through processes that betrayed the relationships first established and symbolized by the Two Row Wampum and the Covenant Chain. Once again, more than two hundred years after the Toronto Purchase, non-aboriginals were failing to grasp the actions of aboriginal peoples that had led to the Temagami blockades.1 There was no place left for fairness. The non-aboriginal views of aboriginal people and places of Toronto have largely been shaped in a visual way by the work of Jeffreys. His works illustrate our history books of Canada and of Toronto.2 Two of his paintings in particular illustrate his influence. The first is his portrayal of the Metis Étienne Brûlé (1592–1633), who was supposedly the first European to “discover” Toronto in 1615. Brûlé’s guides are portrayed as “Iroquoian savages” who are situated in the background of the painting. The second is the aforementioned depiction of the signing of the Toronto Purchase, which took place on board a Royal Navy vessel, a symbol of the British Empire. Like most of Jeffreys’s work and many Canadian historical writings on the subject of Toronto, it is about misrepresenting “Indians” and replac-

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ing them with racial figments from the imaginations of non-aboriginal people. Too often, these renderings of historical events are not based on the written record, let alone on indigenous oral traditions.3 It is equally false to regard Brûlé as a “white” person, failing to recognize that he was Metis (either by place of birth, adoption, and/or marriage), which is often overlooked in Toronto, Ontario, and Canadian historiography.4 The Metis role is often completely obscured.5 The Metis did not, as I wrote twenty-six years ago, merely give to Europeans “hearty co-operation and efficient aid.” The Metis were extremely prominent in their own right; among their other responsibilities, they were their own active agents as negotiators (on their own behalf and others), interpreters, translators, mediators, and facilitators.6 Moreover, as agents of the nation-state, they often also had power of “pen and ink”; they operated across and through the “borders of knowledge.”7 As this study of Temagami illustrates very well, Metis were prominent in its history from at least the mid-nineteenth century. Here is the role call of names in these Temagami events: George Ironside, Duncan Campbell Scott, Gary Potts, Bruce Clark, and this author, all of whom played a significant part in them. One could well argue, counterfactually, that if the Metis had not been there or prominent, then these events may have turned out far differently for the taa, perhaps more happily. It is clear that we need to have many more case studies in Ontario (and Canada) written by Metis using their own perspectives, from the borders of knowledge, to show how significant the roles of the Metis have been in the shaping of our place known as Canada. Temagami is much more than an example. It has always been a benchmark for aboriginal title and land rights. After spending millions on the court case, the federal and provincial governments, fourteen years later, found themselves on 15 August 1991 with a decision from the Supreme Court of Canada that was in their favour. But the result only served to preserve the status quo. Although the taa appeal was dismissed, the Supreme Court ruled that the “case raises for the most part factual issues on which the lower courts were in agreement,” and for this reason no “issue was taken with the findings of fact in the lower courts.” However, the Supreme Court did recognize that the taa held aboriginal title to the four thousand square miles of N’Daki Menan. It further decided: It is unnecessary, however, to examine the specific nature of the aboriginal right because, in our view, whatever may have been the situation

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upon the signing of the Robinson-Huron Treaty, that right was in any event surrendered by arrangements subsequent to that treaty by which the Indians adhered to that treaty in exchange for treaty annuities and a reserve. It is conceded that the Crown has failed to comply with some of its obligations under this agreement, and thereby breached its fiduciary obligations to the Indians. These matters currently form the subject of negotiations between the parties. It does not alter the fact, however, that the aboriginal right has been extinguished.8 The Supreme Court was absolutely wrong on the facts. The taa never received a reserve on the basis of the Robinson Huron Treaty; they had to pay for it at fair value with their own monies. In addition, there was no formal public meeting or adhesion that the taa signed to the treaty, as required by the Royal Proclamation of 1763 and by Canadian law. The annuity payments were issued unilaterally to the taa beginning in 1883 and ending in 1979. The land cautions remained in effect in the land claim area until 1996, when they were lifted by the ndp Government. The Tory Government, which replaced it, finished the nasty job by putting things back where they had been “on paper” more than twenty years earlier. The resistance of the taa dramatically, and literally, created a circle of time. One important event in the twentieth century was the Calder case of 1973. This Supreme Court of Canada decision found that aboriginal title and rights did exist in the justice system of Canada. It opened the legal doors for the prosecution of aboriginal title and rights cases in Canada. Calder was followed by many constructive Supreme Court of Canada decisions that reaffirmed aboriginal title and land rights and treaties, including Guerin (1984), Simon (1985), Sioui (1990), Sparrow (1990), Denny (1990), Delgamuukw (1997), and, most recently, Marshall (1999) among others. While these cases offer aboriginal communities a positive step forward, they are also influencing how non-aboriginal people view Canadian history and cultures.9 This may result in more violent confrontations between aboriginal and non-aboriginal communities similar to that which took place in Oka during summer 1990 or in Caledonia since 2006. There is a large discrepancy between what the Canadian courts are saying about how aboriginal people have been treated in Canada and the way in which they are today still denied their rights and their lands. Another decision handed down by the Supreme Court of Canada actually acknowledged the importance of oral histories when considering aboriginal rights. On 11 December 1997, thirteen years to the day that Justice

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Steele brought down his decision on Temagami, the Supreme Court dramatically rendered its judgement in the Delgamuukw v. British Columbia case, also identified as the Gitksan and Wet’suwet’en comprehensive “claim.”10 It ordered a new trial based on the palpable errors of the trial judge. Prominent among these was the latter’s discounting the oral history and traditions of the Gitksan and Wet’suwet’en peoples in its entirety. This case, like Temagami, is one that rests largely on aboriginal oral history and traditions. Relying in part on the findings in the 1996 Report of the Royal Commission on Aboriginal Peoples,11 the scc stated in the Delgamuukw ruling that oral traditions are “not simply a detached recounting of factual events but, rather, are ‘facts enmeshed in the stories of a lifetime.’” Moreover, they are “rooted in particular locations, making reference to particular families and communities.” As a result, aboriginal oral history is in fact “many histories, each characterized in part by how a people see themselves, how they define their identity in relation to their environment, and how they express their uniqueness as a people.” The Supreme Court also stated that the “laws of evidence” in the Canadian justice system must accommodate aboriginal oral history and traditions such that it “be placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents. This is a long-standing practice in the interpretation of treaties between the Crown and aboriginal peoples.”12 Not to recognize this history is to deny aboriginal people their land and water rights and to make a palpable error of legal judgement. Both the Temagami and the Delgamuukw (at the trial level) decisions reflect badly on the Canadian justice system. They have become embedded in subsequent legal precedents of the Supreme Court of Canada. A number of studies, including those by James Walker and Sidney Harring,13 discuss the importance of these decisions in coming to understand the role that racism plays in the judicial system. They are also blunt statements about history, especially about Canada’s history and the histories of aboriginal peoples. The treaties that have been signed are spiritual, living entities between sovereign nations. The Marshall ruling, by implication, reaffirms and recognizes this aboriginal sovereignty. In understanding and interpreting the spirit and intent of these treaties, the oral and the written records and the testimony of expert witnesses were relied upon, whether or not the treaty document was ambiguous on its face. These records should be used so as

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not to define aboriginal or treaty rights on the basis of a narrow focus on, or interpretation of, a written treaty document. All of the historical evidence, including oral traditions, as written or otherwise, must be both weighed and applied equally. The historical context, the intentions, and the result of the treaty negotiations in terms of the integrity and honour of the Crown must be taken into account in deciding aboriginal and treaty rights. The judgements in the Bear Island case and others will have a significant impact on many cases of aboriginal and treaty rights. We are just short of a true meeting ground – a balance based on harmony and the principles of honesty, trust, peace, and mutual respect. But it will come. This is the spiritual dimension of Delgamuukw and Marshall. All Canadians must now listen to this message – a message above all of spirituality and continuity. Islands are places of refuges and sacred places; they serve to remind us of the Two Row Wampum. The Toronto Islands, Bear Island, and the Queen Charlottes (the Haida Gwaii) … they all reflect the core of Canada as a place – its history and cultures. As such there is a spirituality and continuity flowing from this land and its peoples. This reality is also continuous and modern. It can be vividly seen in Bill Reid’s monumental canoe sculpture of The Spirit of Haida Gwaii, which rests outside of the Canadian embassy in Washington, DC (a replica entitled The Jade Canoe is located at the Vancouver International Airport). The non-aboriginal philosopher, James Tully, has described the sculpture as follows: Cast in bronze, it recreates a group of thirteen human, animal and bird figures interacting with each other as they head into the unknown in a Haida canoe, under the guidance of Chief Kilstlaai. Wrapped in the skin of the mythical sea wolf and holding a speaker’s staff that tells the Haida story of creation.14 Tully has drawn on this sculpture for his view of Canada’s “strange multiplicity.” However, Tully completely misunderstands Bill Reid’s work. There is nothing “strange” about Reid’s view of Canada. It is the epitome of the spirit of the place we know as Canada.

Acronyms

afn ico inac omaa omag omnd omnr omoe onad onap onas rcap rcne taa uoi

Assembly of First Nations Indian Commission of Ontario Indian and Northern Affairs, Canada Ontario Ministry of Aboriginal Affairs Ontario Ministry of the Attorney General Ontario Ministry of Northern Development and Miners Ontario Ministry of Natural Resources Ontario Ministry of the Environment Ontario Native Affairs Directorate Ontario Office of Native Affairs Policy Ontario Native Affairs Secretariat Royal Commission of the Aboriginal Peoples Royal Commission on the Northern Environment Teme-Augama-Anishnabai Union of Ontario Indians

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Notes

Preface i King, The Truth about Stories, 2. 2 McNab, Circles of Time, 1–10. 3 Plains Indian Drawings, 1865–1935, Pages from a Visual History, Janet Catherine Berlo, ed., New York: Harry N. Abrams, Inc., Publishers, in association with The American Federation of Arts and the Drawing Center, 1996. I had an opportunity to see this exhibit when it opened in Toronto at the Art Gallery of Ontario on 14 November 1997. 4 N. Scott Momaday, The Names.

Introduction i King, The Truth about Stories, 2. 2 See McNab (with Ute Lischke), “We Are Still Here: Introduction,” The Long Journey of Canada’s Forgotten People: Metis Identities and Family Histories, Waterloo: wlu Press 2007, 1–9. 3 See Lischke and McNab, The Long Journey of a Forgotten People, 1–9. 4 “Hearty Co-operation and Efficient Aid,” The Metis and Treaty #3, The Canadian Journal of Native Studies, vol. 3, no. 1, 1983, 131–49. 5 Communication, email from Professor John S. Long, Nipissing University to the author, and attachment, 24 April 2008. 6 McNab, Circles of Time, 1–10. 7 Plains Indian Drawings, 1865–1935. I had an opportunity to see this exhibit when it opened in Toronto at the Art Gallery of Ontario on 14 November 1997.

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8 McNab, Circles of Time, 1–10. 9 Ontario Secretariat for Aboriginal Affairs (formerly the Ontario Native Affairs Secretariat) website, visited on 26 July 2006: www.nativeaffairs.jus.gov.on.ca/english/negotiate/temagami/ temagami.htm. 10 Letter from chief provincial negotiator, 24 May 2006, on the Ontario Secretariat for Aboriginal Affairs website, visited on 26 July 2006: www.nativeaffairs.jus.gov.on.ca/english/negotiate/temagami/ temagami.htm. As this study goes to press in 2009, there have been no updates on the progress, or lack thereof, of the negotiations on the websites of the Temagami First Nation or the Ontario Ministry of Aboriginal Affairs. It appears that the negotiations were close to being brought before the parties for ratification. 11 My doctoral dissertation “Herman Merivale and the British Empire,” was on the British Empire in the nineteenth century. 12 Cell, British Colonial Administration, especially see his “Introduction.” 13 See my Circles of Time, 1-10. 14 McNab (with Ute Lischke), “Actions of Peace: Introduction,” Blockades and Resistance: Studies in Actions of Peace and the Temagami Blockades of 1988–89, (co-editor with Bruce W. Hodgins and Ute Lischke), Waterloo: wlu Press, 2003, 1–9.

Chapter One 1 2 3 4

See Angel, Preserving the Sacred. Benton-Banai, The Mishomis Book, 100. See McNab, “Borders of Water and Fire,” 35–46. Leighton, “George Ironside Junior,” 407–8; “Jean-Baptiste Assiginack,” 9–11. Assiginack was Ironside’s interpreter at Manitowaning. See also McNab, “‘The Land Was to Remain Ours,’” 229–50. For more on other Indian Agents in the late nineteenth century, see McNab, “The Walpole Island Indian Band and the Continuity of Indian Claims,” unpaginated. 5 R. David Edmunds, “tenskwatawa (Elskwatawa, first named Lalawethika, also known as the Shawnee Prophet and the Prophet),” DCB Online, www.biographi.ca/009004-119.01-e.php?&id_nbr=3689, accessed on 26 November 2008: “He was a Shawnee religious and political

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6 7 8 9

10 11 12 13 14 15

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leader; b. probably in early 1775 in Old Piqua (near Springfield, Ohio), son of Puckeshinwa, a Shawnee warrior, and Methoataske, a woman of Creek descent; m. and had several children; d. November 1836 in what is now Kansas City, Kans.” Leighton, “George Ironside,” 9-11. Williams, Jr, Linking Arms Together, 4. RG 10 (Indian Affairs), vol. 1822, 35. “July 9–14, 1764, Treaty of Niagara,” Hamilton, Papers of Sir William Johnson, vol. XI, 262–333. For Pontiac’s War of 1763, see Chevrette, “Pontiac,” 525–31. Steele, Warpaths, 246–7. Hamilton, Papers of Sir William Johnson, vol. XI, 13, 134–5, 152, 155. Hamilton, 162–4. Ibid., 221-2. “Royal Proclamation,” in Getty and Lussier, ed., As Long as the Sun Shines, 29–37. See also the “Plan for the Future Management of Indian Affairs, Referred to in the Thirty-Second Article of the Foregoing Instructions.” Constitutional Documents, Sessional Papers, no. 18, 614–9. “Royal Proclamation,” in Getty and Lussier, ed., As Long as the Sun Shines, 29–37. “Plan,” Constitutional Documents, 614–9. Hamilton, Papers of Sir William Johnson, 262–84, 303–6. “Treaty of Niagara of 1764,” in Hamilton, Papers of Sir William Johnson, 262–324, especially 309–10. Hamilton, Papers of Sir William Johnson, 311. Hamilton, Papers of Sir William Johnson, 326–327. While the Anishnabai kept the Belt as their treaty, Johnson replicated the treaty in writing, which is the copy he kept. Nin.Da.Waab.Jig., files, “Treaty of Niagara of 1764.” Ibid. Ibid. See CO 42 (Colonial Office Records), vol. 624, Offices, except Treasury, 1860, ff. 266–494, Microfilm Reel B-446, R.S. Pennefather to the Duke of Newcastle, 28 September 1860. Prince Edward and the Duke of Newcastle met with the First Nations’ representatives in Toronto and at Sarnia on 8–13 September 1860. Public Record Office, London, England. A copy on microfilm is in the Provincial Archives of Ontario.

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Chapter Two 1 2 3 4

5 6 7 8

9 10 11 12 13 14 15 16

The most recent biography of Tecumseh is by Sugden, Tecumseh. Nin.Da.Waab.Jig., Walpole Island, 27–37. Sabathy-Judd, Moravians in Upper Canada, xi–lxxiv. RG 8, volume 268, 1829, Microfilm Reel C-2856, Letter, and enclosures, Duncan C. Napier, “Report on the Indian Department in Upper and Lower Canada” to Couper, Military Secretary, 2 March 1829, 118–34. Sabathy-Judd, ed. and trans., Moravians in Upper Canada, xi–lxxiv. McNab, “Herman Merivale and Colonial Office Indian Policy,” 277–302. Milloy, “The Early Indian Acts,” 56–64. The following quotations and the arguments in this section are taken from my “Herman Merivale and the British Empire,” especially chapters 5 and 6. This dissertation is, in part, based on autobiographical and family history. See my “Hiding in Plane View,” 295–308. McNab, “Herman Merivale and the British Empire,” chapter 5. See also Merivale, Lectures. Merivale, Lectures, 506. Ibid. Merivale, Lectures, 548–50. Ibid. Ibid., 487–92. Ibid. Before he was appointed to the Colonial Office, Merivale had considered the effects and the possible solutions for the English Government when white settlers moved into a region, took the land, and commanded the labour of the aboriginal population. In the nineteenth century this imperial dilemma was termed the “Native question.” “Natives” were regarded as a lower class, like the Irish or the poor in Britain, and English liberals sought to better the material condition of these people by means of the panaceas of education and religion. Their object was humanitarian and their methods were usually paternalistic. Merivale, in his role as a commentator on the “Native question,” was both naive and at times utopian in his attempts to find a solution. The “Native question” was the most important problem of European expansion overseas. Merivale realized that the problems which were raised by the “Native question” were connected to other important imperial concerns such as responsible government, free trade, commercial companies, missionary enterprises, and

Notes to Pages 25–30

17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

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imperial defense. Eventually, Merivale perceived that the problem was an insoluble one and the best that could be done was to ameliorate the condition of the Native peoples in the present and hope that in the future they would be able to adapt their culture to European civilization. It was extremely ironic that Merivale was aware of these difficulties but found it increasingly impossible to influence British imperial policy as an administrator. Lectures, 494-5. McNab, “Herman Merivale and the British Empire,” chapter 5. The best full-length study of Head is by Kerr, Sir Edmund Walker Head. See also Gibson, “Sir Edmund Walker Head (1805–1868),” 381–6. Gibson, “Sir Edmund Walker Head,” 381–6. McNab, “Herman Merivale and the British Empire,” chapter 5. Merivale, Lectures, 495–8. Ibid., 499–504. Ibid., 502–4 See Dickason and McNab, Canada’s First Nations , chapter 29, 427–57; also my Circles of Time, 187–201. Merivale, Lectures, 503–4. McNab, “Herman Merivale and the British Empire,” chapter 5. Merivale, Lectures, 504. Ibid. Ibid. Merivale did not believe “extermination” would ever occur. He did not, however, give any reasons for this position, especially in light of the supposedly tragic fate of the Beothuk at the hands of the European settlers in Newfoundland. If it was “inevitable” that they perished, then, he concluded rather pessimistically, there was no use even considering the problem at all. It only remained for Europeans to “insure that the inevitable end be not precipitated by cruelty and injustice.” Merivale’s objections to the theory of “necessary depopulation” prompted this conclusion. Merivale, 506–12; see also McNab, “Herman Merivale and the British Empire,” chapter 5. Merivale, 506–12. Merivale, Lectures, 512. One of amalgamation’s chief advantages was simply that it had never been tried before “in earnest” in the history of European overseas expansion. Attempts had been made but there had not been a coordinated effort by church and state over a long period of time. When Merivale

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attempted to describe his plan of amalgamation in more detail in his Lectures, however, there was very little to distinguish it from other assimilatory schemes that, in the late twentieth century, would be regarded as a blatant form of racism. He regretted that he did not have sufficient scope in his Lectures to undertake a more thorough investigation; as a consequence, he kept an open mind on the subject. Merivale’s experience as an administrator made him less optimistic concerning the fate of native peoples. His scheme of amalgamation should be judged as an experiment devised by a lawyer and a political economist who had no practical experience. From 1841 to 1861, his views changed substantially, and he became aware of the “futility of sanguine expectations.” Failure to solve the “native question” was not due just to a lack of “perseverance” and the use of “reason and truth” by Europeans; the question was extremely complex. Therefore it certainly could not be easily solved, if it could, in fact, be solved at all. Merivale was aware, as early as 1841, that the major problem in dealing with the aboriginal was the conflict over land. As well, British Imperial administrators in the 1840s and 1850s were largely concerned with conflicts between aboriginal people and settlers over land and labour. Solutions were utilitarian and usually similar to those propounded by Merivale in his Lectures, specifically the alternatives of extermination, insulation, and amalgamation. Another alternative, slavery, was not considered because it had been outlawed in 1833 in the English Empire. The pressure of humanitarians and their societies effectively ruled out extermination as well as slavery. Nevertheless, there were a number of commentators who believed that native peoples would disappear as a result of “natural” causes such as disease or starvation. Imperial administrators only considered the more practical schemes of insulation and amalgamation. In the end, however, the “native question” was not decided by these theoretical, and largely utopian, ameliorative measures. Many factors were involved in finding the solution, including the demands of the white settlers for colonial self-government; the failure of missionaries to “civilize” and Christianize “native” culture; and the resistance – sometimes armed, sometimes passive – of aboriginal people themselves against the Europeans’ attempt to change their way of life. McNab, “Herman Merivale and the British Empire,” chapter 5. For an example of this, see McNab, “‘Principally Rocks and Burnt Lands,’” 157–72. Merivale, Lectures, 505.

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40 McNab, “Herman Merivale and Colonial Office Indian Policy,” 277–302. 41 Milloy, “The Early Indian Acts,” 56–64. 42 See Milloy, “The Era of Civilization.” 43 On Francis Bond Head, see Martin, “Sir Francis Bond Head,” 145–70. 44 McNab, “Herman Merivale and Colonial Office Indian Policy,” 277–302. 45 Tooker, “Wyandot,” Handbook, 401. 46 Milloy, “The Early Indian Acts,” 56-64. 47 McNab, “Herman Merivale and Colonial Office Indian Policy,” 277–302. 48 Milloy, “The Early Indian Acts,” 59. 49 Carter-Edwards, “George Ironside,” 340–1. Ironside Sr was appointed to the Indian Department in 1795 by Alexander McKee as a clerk and storekeeper at Amherstburg. He married Vocemassussia (Isabella), who was a relative of the Prophet (Tenskwatawa). He died at Amherstburg on 31 May 1831. He was succeeded by his son of the same name. On the Metis, see my “Canada’s Constitution and Metis Family History,” 23–39; “hbc (Here Before the Company)” 11–6; “The Significance of Metis Family History in Canada’s History,” 40–4; (with Ute Lischke), “Preface” and “We Are Still Here: Introduction,” and my “A Long Journey: Spirit Memory and Métis Identities.” 50 RG 10, Deputy Superintendent’s Office, Letterbook, 1830–1836, volume 569, microfilm reel #C-13, 373, Letterbook of George Ironside, 6–8. 51 Deputy Superintendent’s Office, Letterbook, 1830–1836, 8. 52 Deputy Superintendent’s Office, Letterbook, letter, 3 June 1830, Ironside to Givins, 9-11. 53 Deputy Superintendent’s Office, Letterbook, letter, 13 June 1830, Ironside to J.B. Clench, Superintendent Indian Affairs, 14. 54 For further biographical information about these men, see Leighton and Burns, “Samuel Peters Jarvis,” 430–3; Telford, “The Nefarious and Farranging Interests of Indian Agent and Surveyor John William Keating,” 372–402; Brock, “Joseph Brant Clench (c. 1790–1857),” 161–6; Mainer, “Solomon Yeomans Chesley (1796–1880),” 163–4. The Solomon Y. Chesley diaries (1848–74) are in the Provincial Archives of Ontario. While there is no biography of Vardon in the Dictionary of Canadian Biography, there is ample mention of him in the Chesley diaries. 55 Telford, “Keating, 1837 to 1869,” 372–4. 56 Chute, Shingwaukonse, 11. 57 I came across this story while doing research on Louise Erdrich for a

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book project on her writings. She wrote an introduction to Tanner’s Narrative. Tanner, Narrative, 73–4. See my “Borders of Water and Fire,” 35–46. Chute, Shingwaukonse, 13. See also Morrison, The Robinson Treaties of 1850. Merivale, Lectures, 521. See also McNab, “Herman Merivale and Colonial Office Indian Policy,” 277–302. These policies have created great uncertainty and extreme frustration with the failure of the Crown to uphold the Covenant Chain of Silver and the concomitant solemn treaty promises. This situation goes far to explain its failure and why Oka happened. On the events of Oka, see York and Pindara, People of the Pines; Hornung, One Nation under the Gun. A more academic discussion of Oka can be found in Miller, “The Oka Controversy,” 215–42. See also my “Making a Circle of Time,” 27–49.

Chapter Three i The late E.G. “Ted” Wilson interviewed the registrar of titles in August 1973 after the cautions were issued and the latter could not explain why he had accepted them. 2 Hodgins and Benedickson, The Temagami Experience, 6–67. 3 McNab, “Remembering an Intellectual Wilderness,” 31–53. For a view of the politics of the litigation and the wilderness see Hodgins and Bordo, “Wilderness, Aboriginal Presence and the Land Claim,” 67-80; Lischke and McNab, “Actions of Peace: Introduction,” 1–9. 4 RG 10, volume 573, Ironside to Pennefather (?), Letterbook, Sault Ste Marie, 2 February 1857, 154–6. 5 For one view, see Rae, From Protest to Power, 109–10. See also Hodgins and Bordo, “Wilderness, Aboriginal Presence and the Land Claim,” 67–80. 6 Leighton, “George Ironside [Junior, c. 1800–63],” 407–8, and Leighton, “Jean-Baptiste Assiginack,” 9–11. Assiginack was Ironside’s interpreter at Manitowaning. 7 See the chapters by Charles Bishop, for example, in Rogers and Smith, ed., Aboriginal Ontario. 8 George Ironside Jr, “Indian Record Books,” MS/Ironside, George, 1846, January-October, duplicate copy of August 1846 Present List, entitled

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“Places of Residence of the undermentioned Bands of Indians who received Presents in Augt [August] 1846.” 9 Hodgins and Benedickson, The Temagami Experience, 6–61. i0 I mean here the government of the colony of Upper Canada and then after the Act of Union in 1840, the government of the Canadas. i1 Cruikshank, The Peter Russell Papers, volume II, 1798–99, entry of 22 October 1798. The Executive Council noted in its “Minutes,” on a report from Chief Justice John Elmsley, “on the result of our deliberations on his Excellency the Governor General’s plan for disposing of the waste lands of the Crown for sale” and that there was the “propriety of making an extensive addition to the waste lands of the Crown by purchases from the Indians”: It is no secret to any Person at all acquainted with the state of Indian Affairs, that the Aborigines of this Part of His Majesty’s Dominions are beginning to appreciate their lands not so much by the use in which they are in the habit, or are capable of making of themselves, as by the value at which they see them estimated by those who purchase them, and either cultivate them, or dispose of them in their natural state – It is equally notorious, that if the Indians wanted penetration to make the discovery, there are a great many persons of European Origin who have attached themselves to the several Tribes which surround us, and who will not fail to inform them that the value of an Article depends as much upon its importance to the purchaser as on its usefulness to the present possessor – But if this were doubtful now, when the lands purchased from the Indians are distributed among His Majesty’s Subjects, at a Fee hardly exceeding the prime cost of them, it cannot possibly remain so when the Indians discover as they unquestionably will, that the purchases made from them are to be converted into a source of wealth to ourselves – Slow as their progress is towards civilization they are perfectly apprised of the value of money, and of its use, in maintaining them in those habits of indolence and intemperance to which most of them are inclined – In order therefore to exercise that foresight which our Indian neighbours are but beginning to learn, and in which it certainly cannot be our interest to promote their improvement, we submit to your Honour’s consideration the propriety of suspending the promulgation of the plan which has been laid down before us until we can make a purchase sufficiently large to secure to us the means of extending the population and encreasing [increasing] the

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strength of the Province, so far as to enable us before our stock is exhausted to dictate instead of soliciting the terms on which future acquisitions are to be made – For we are satisfied that the purchase of 50 or even 100 Townships, if made now, will cost us less than the purchase of ten after the promulgation of the Governor General’s plan. It was also considered to be of “indispensible [indispensable] necessity” that … before we proceed to dispose further of the waste lands of the Crown, we inform ourselves of the quantity which after satisfying all claims for which the public faith is pledged we shall have to dispose of. It may not perhaps be possible to form a very accurate statement, on account of the uncertainty with which the negligence of our predecessors has involved us, with respect to the limits of the purchases from the Indians, but we are very decidedly of opinion that an attempt towards it should be made before any step is taken towards carrying the plan of the Governor General into execution. This was one of the reasons the government of Upper Canada refused to approve of Joseph Brant’s land sales, since they likely reflected land sales at about fair market value, thereby, in the words of the Executive Council minutes of 28 May 1799: “… establishing a price for Indian Lands many times greater than they ever demanded from the King before – which would certainly prevent our ever hereafter being able to obtain them cheaper –.” i2 Telford, “‘The Sound of the Rustling of the Gold.” i3 Hodgins and Benedickson, The Temagami Experience, 6–61. i4 RG 1, Crown Lands Records, Vidal-Anderson Report, appendix B. i5 Indian Lands file #186217, volume 1, D.F. Macdonald to Aubrey White, 18 September 1894. i6 Morrison, “The Robinson Treaties,” 85–90. Morrison’s note is to Canada, Journals of the Legislative Assembly 1851, appendix II, voucher no. 11. It is this voucher that Ironside fabricated in the expectation that the taa would come to participate in the treaty in autumn 1850. i7 Morrison, “The Robinson Treaties,” 103–4. i8 Fitzroy MacLean, Highlanders, 257; Charles MacLean, The Clan Almanac, 60, 121. i9 On MacNab and Macdonell, see Beer, Sir Allan Napier MacNab), 125, 145, 182, 388, 389; Baskerville, “Sir Allan Napier MacNab (1798–1862),” 519–27; Swainson, “Allan Macdonell (1808-1888),” 552–5.

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20 The best study to date on the background to the Robinson Treaty negotiations is by Telford, “The Sound of the Rustling of the Gold.” For a general historical background, see Hall, “Native Limited Identities,” 148–73. 21 See Alexander Morris, The Treaties of Canada. 22 Morton, “James Bruce, 8th Earl of Elgin,” 89–93; Morrison, “The Robinson Treaties,” 92–9. 23 Hodgins and Benedickson, The Temagami Experience, 6–61. 24 Morrison, “The Robinson Treaties,” 103–4. 25 For example, see the Toronto Globe, September 1850. 26 Canada, Indian Treaties and Surrenders, vol. 1, cited as Treaty #61. 27 Alexander Morris, The Treaties of Canada. 28 See my “Who Is on Trial?” 117–34. 29 Potts, “Teme-Augama Anishnabai,” 201–28. 30 Alexander Morris, The Treaties of Canada. 31 RG 10, Microfilm Reel C-13,374, volumes 573–5, Deputy Superintendent General’s Office Letterbooks, 1852–62; letter, William Plummer to W.H. Langevin, dated 16 April 1869, 123–4; letter, William Plummer to W.H. Langevin, dated 17 September 1869, 189–90; letter, William Plummer to Joseph Howe, dated January 1870, 232–5; letter, William Plummer to Joseph Howe, dated 22 March 1871, 372. 32 A fuller explanation can be found in my “Who Is on Trial?” 117–34. 33 Admittedly, Ironside’s letter is not unambiguous regarding the events to which he is referring. It is clear that he is not talking about a meeting in 1856 here, since he stated that this should have happened but had not occurred. The words beginning the new paragraph read, “The meeting of the Chiefs took place at Manitowaning shortly after the issuing of Presents”; this cannot then refer to either 1856 or 1857 because no presents were issued in 1856 and the date of the letter is 2 February 1857, before the time in which the presents were given out, i.e., August of each year. The meeting Ironside is referring to here can thus be the time period when the presents were still issued, i.e., sometime between 1850 and 1852. However, it should be noted here that the issuing of the presents ceased in 1855. This dates the events described by Ironside to 1850 and not likely at a later time than 1855, such as at a meeting in 1856. See RG 10, volume 268, “Memo. Wants & complaints of Bands visited by Commissioners in Augt. 1857,” 164295–164301. This document indicates that in August 1857 that there were complaints by First Nations against the Crown for not having received their presents in 1856.

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34 Here it appears that Ironside is referring to another meeting held in August 1856 at Manitowaning, at which the First Nations complain that they have not received their presents but at which they were given their annuity monies in cash, not in kind. 35 RG 10, volume 573, Microfilm Reel # C-13374, George Ironside to Richard Pennefather(?), Letterbook, Sault Ste Marie, 2 February 1857, 154–6. 36 MS/Ironside, George. Folder n.d. c. 1840–49, letter, J.W. Keating to George Ironside, “Walpole Island,” dated June 23 [1846?]; Folder MS/Ironside, George, 1846 January-October, Duplicate copy of August 1846 Present List, entitled “Places of Residence of the undermentioned Bands of Indians who received Presents in Augt [August] 1846.”; letter, J.N. MacLeod, “Amherstburg,” to George Ironside, dated 29 April 1846; Folder 1846 Nov/Dec, letter, Robert [Sir Robert John McClure?] McClure to George Ironside, dated 1 December 1846, marked “Private and Confidential”; Folder “1849,” letter, George Ironside to E.S. Freer, Esq. Post Office Surveyor, dated 24 January 1849; letter, George Ironside to Charles Hale, “Toronto,” dated 21 February 1849; letter, Arthur Gore to Reverend Alexander W. Gale, Knox College, Toronto (this letter was to have been given by Gale to Ironside), dated 10 March 1849. 37 RG 10, volume 573, Microfilm Reel # C-13374, Ironside to Pennefather(?), Letterbook, Sault Ste Marie, 2 February 1857, 154–6. 38 McNab, “Who Is on Trial?” 117–34. 39 Ibid. 40 Potts, “Teme-Augama Anishnabai,” 201–28. 41 RG 10, volume 519, Microfilm Reel #C-13347, letter, Pennefather to the provincial secretary, Indian Department, Toronto, 31 May 1859. On 31 May 1859 R.T. Pennefather wrote to the provincial secretary in Toronto about his forthcoming trip to Sault Ste Marie and Bruce Mines. He requested that a warrant may issue as usual for the payment of the customary annuity to the Indians of Lake Huron and Superior as settled by the Treaty of 1850. As it is my intention to leave town on Friday next and take with me the amount payable to the Lake Huron Indians, I have to request that the amount may be issued in my favor [favour] not later than tomorrow. Pennefather was going to pay the annuities in cash and then at the same

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time get surrenders from the Batchewana, Garden River, and Thessalon First Nations. But when Pennefather arrived in Sault Ste Marie on 9 June 1859, the shit hit the bureaucratic fan. As noted earlier, George Ironside did not have the accurate documentation on the annuity paylists. He wrote the following caustic letter to Ironside: I beg to draw your attention to the fact that no vouchers or Pay Lists have been received at the Indian Office at Toronto for the annuity of the Lake Huron Indians for the year 1858, $3349.70-nor for the sum of L574.11.6 which was directed to be paid to the same indians as part of the balance of their annuity of the year 1857 by you in conjunction with Thos. [Thomas] Worthington Esqe. [Esquire] As these necessary documents are now long over due I request your early attention to them with a view of furnishing them with the least possible delay.

42

43 44

45 46 47

RG 10, volume 519, Microfilm Reel #C-13347, Letter, Pennefather to George Ironside, Indian Department, Sault Ste Marie, 9 June 1858. See McNab and Standen, ed., Gin Das Winan, 24n12. Leighton has described these events in greater detail in “The Manitoulin Island Incident of 1863,” 113–24. Leighton, “George Ironside [Junior, c. 1800–63],” 407–8. There is some evidence that at least two First Nations considered Ironside in an ill light, as noted in their complaints made about him, especially by the Garden River First Nation and the Wikwemikong First Nation in 1861, see for example RG 10, Indian Affairs Records, volume 573, Microfilm Reel #C-13374, Indian Affairs, Deputy Superintendent General’s Office Letterbook, 1852–62, 283–4, letter, Ironside to Pennefather, Manitowaning, 23 March 1861; 287–310; letter, Ironside to Pennefather, Manitowaning, 23 May 1861. Hodgins and Benedickson, The Temagami Experience, 6–61. Jacobs, “‘We have but our hearts and the traditions of our old men,’” 1–13. The clan name “Skene” comes from the name of the same place in Aberdeenshire. The clan motto is “a palace the reward of bravery” and the clan badge is “an arm holding a laurel wreath.” See Charles MacLean, The Clan Almanac, 112.

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48 The name, son of Donald, in Gaelic is “Domhnull,” which means “World Ruler.” The clan motto is “By land and by sea” and the “heathery isle.” Heath is the plant or heraldic badge. Charles MacLean, The Clan Almanac, 59. See also Fitzroy MacLean, Highlanders, 257. 49 Hodgins and Benedickson, The Temagami Experience, 6–61. 50 In 1986, in preparing for the 1986 settlement offer, the Ontario calculations prepared by an independent certified public accountant on this amount were over $12 million. 51 Leighton, “Lawrence Vankoughnet and the Department of Indian Affairs,” Ian A.L. Getty and Antoine S. Lussier, ed., As Long as the Sun Shines, 104–19. 52 RG 10, volume 7757, file #27043-9, part 1, “Nipissing Agency – Survey of land for a reserve for the Timagami band of Indians (map). 1880–1929.” 53 Hodgins and Benedickson, The Temagami Experience, 6-61. 54 S. Barry Cottam, “Aubrey White (1845–1915).” This biography must be used with caution since it is uncritical of White. 55 See my “‘A Lurid Dash of Colour,’” 258–71. 56 On Scott’s family see my “‘A Lurid Dash of Colour,’” 258–71. On Scott’s Indian Department career, see Titley, A Narrow Vision. This is still the best general study of Duncan Campbell Scott as a colonial administrator. Also see Draglund, Floating Voice, which is more narrowly focused on Scott’s literary career. There is no full-scale biography of Scott. 57 RG 10, volume 7757, file #27043-9, part 1, Ontario Ministry of Natural Resources Lands files (now with the Ontario Ministry of Aboriginal Affairs) #186217. 58 RG 10, volume 7757, file #27043-9, part 1–2. 59 Lands files #186217, “Temagami Indian Reserve #18,” 2 volumes; #65213, “101 Bear Island Town.” See also Archives of Ontario, Leslie Frost Papers, RG 3, box 89, Correspondence 1954-55, folders entitled “Temagami.” 60 Federal Department of Indian Affairs, Ontario Regional Office, Toronto, copies of federal and provincial orders-in-council, dated 1943 and 1943, respectively. 61 RG 10, volume 7757, file #27043-9, part 2. 62 Hodgins and Benedickson, The Temagami Experience, 267–89. 63 Gary Potts’s father was a status Indian and a citizen of the Temagami First Nation like Gary. Gary’s mother was born in England and thus

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Gary, although does not identify as such, could be seen to be a Metis person. 64 Hodgins and Bordo, “Wilderness, Aboriginal Presence and the Land Claim,” 67–80. Potts, “Teme-Augama Anishnabai,” 201–28. 65 Ugarenko “The Teme-Augama Anishnabai and the Robinson Huron Treaty of 1850,” which was prepared for the omnr (Ontario Ministry of Natural Resources) the client in the case, was, to my knowledge, never provided to the taa in the court action or put before the court. I have a version of it prepared for publication (but apparently never published) by the Ontario Native Affairs Directorate and dated 17 June 1988. 66 omnr, Office of Indian Resource Policy file on the “Temagami or Bear Island Land Claim.” This file, and other files of this office, were transferred to the Ontario Native Affairs Directorate (later – 1990 – Secretariat) after 1 February 1988, when the Office of Indian Resource Policy ceased to exist within the omnr.

Chapter Four 1 This expression was a favourite of Ted Wilson, and he often said it in the context of what his instructions were from the deputy minister, the minister, and the premier under the Tories in the late 1970s and early 1980s. 2 McNab, Circles of Time, 1–19. 3 For a general background of the Ontario Native Affairs Secretariat, see Sampson, “An Historical Consideration of Ontario Aboriginal Policy,” 11–26. 4 See Hamar Foster et al., eds, Let Right Be Done, 6-9. 5 McNab, Circles of Time, 1–19. 6 For more on Currie, see Fitzroy MacLean, Highlanders, 257; Charles MacLean, The Clan Almanac, 60, 121. 7 McNab, Circles of Time, 101–16. 8 McNab, “The Professionalization of Historical Research,” 27–45. 9 McNab, “‘A Lurid Dash of Colour,’” 258–71. 10 Some of the government records of these years are now available in the Provincial Archives of Ontario, and I have examined them. See my unpublished paper “Resource Development and the Bkejwanong Reserve,” 3 June 1995. 11 McNab, “The Professionalization of Historical Research,” 27–45.

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12 Frank A. McDougall (1896–1975) Papers, MU 1785, 1940-1946, MU 1786, “Notes, Misc. & Forestry, 1942-57”; MU 1788, file, “Departmental Re-Organization, 1947”; MU 1790, file, “Plans & Projects, 1956”; MU 1793, File, “Notes & Recorded Thoughts, 1965”; MU 1794, File, “Retirement, 1966-1974,” box 12; MU 1794, file, “Provincial Forestry Service, – reminiscences, 1971–72.” 13 Fitzroy MacLean, Highlanders, 120; Charles MacLean, The Clan Almanac, 55. 14 Guillet, ed., The Valley of the Trent, li–lii, plates 68 and 70 between 422–3. 15 Presumably, he avoided a clear conflict of interest by not holding the trapline himself. Traplines were (and still are) controlled and regulated by the omnr. 16 I was the second full-time appointment to that office as “Indian Land Claims Researcher” on 2 January 1979. From 1979 to 1987 there was only one other professional staff member who was aboriginal, Deborah Doxtator; she was subsequently awarded her Ph.D at the University of Western Ontario. She became a Professor of Humanities at Atkinson College at York University in Toronto. She passed on from breast cancer in 1998 in her late thirties. Her position remained vacant for six years, until I was hired by the School of Arts and Letters in the then Atkinson Faculty of Liberal and Professional Studies on 1 July 2004. Except for my calendar diaries, I made few drawings of events or meetings between 1979 and 1987. By 1987 I had resolved to make such drawings or writings on the assumption that they would be of some significance at a later date. I could not have foreseen specifically that the drawings would include the taa blockades as well as the events of Oka in 1990 or its aftermath in 1991. 17 Wilson spent most of his career in the ministry in Southern Ontario. He worked on special assignments on the Niagara Escarpment and on the establishment of Bronte Creek Provincial Park. By 1976 he had become deputy regional director for the omnr’s Central Region, which was a plum appointment because of its location, but he had reached a ceiling in the ministry. There were few director positions available and many candidates. When he accepted the position of director of Indian Land Claims, Wilson had a letter of agreement from the deputy minister that at the end of six months he could go back to his previous position in Richmond Hill. The deputy minister reneged on that letter and Wilson remained as director of Indian Land Claims and subsequently director of the Office of

Notes to Pages 60–1

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Indian Resource Policy until 1 February 1988 – almost thirteen years. This was greatly frustrating for him. He suffered a stroke on the Canada Day weekend of 1991, at which time he was with the Ontario Native Affairs Secretariat; he was fired by the secretariat in 1992; and he died in autumn 1995. To give him his due, Wilson was one of the best senior managers that omnr had at that time, and he was well-respected at head office. He could pick up the telephone and call anyone in any ministry or agency right up to the Cabinet Office. He taught me how to write succinctly on issues and with accuracy, and for that I am grateful. He acted with integrity based on his own beliefs. He should never have been forced to remain for such a long time in oirp and the Ontario Native Affairs Directorate (onad). A consummate professional bureaucrat, he followed his instructions usually to the letter. In the end, in return for his loyalty and service, he was treated very badly by the omnr and by the onad – later Ontario Native Affairs Secretariat (onas) – and it probably literally shortened his life. One of the best examples of this professionalization was the first university-educated professional hired by Lands and Forests in the early 1950s, Dr Keith Reynolds, who was Wilson’s mentor and held a Ph.D in biology from the University of Western Ontario. Reynolds began his career as a biologist working with field staff in Southwestern Ontario. He was the first professional to attain the position of deputy minister of Natural Resources and he was still the deputy when I arrived at the ministry on 2 January 1979. Reynolds was empathetic towards the aspirations of aboriginal people but, as deputy minister, had to follow (as did Wilson) very closely the specific instructions coming to him from Premier Bill Davis and Secretary of the Cabinet Office Ed Stewart, as well as from Tory ministers. Reynolds often spoke accurately, if not whimsically, of the fact that the omnr professionals trained in natural resource scientific management knew a great deal about the “hunted” and almost nothing about the “hunters,” including aboriginal people. Little or nothing was done about this situation, and the non-aboriginal “hunters” (and sports fishers) among the field staff remained in control of the day-to-day operations of the ministry, effectively making policy on the ground through enforcement of Ontario’s hunting and fishing regulations. This situation has usually meant that the aboriginal hunters have been given short shrift. See also Mackenzie, Empires of Nature and the Nature of Empires, 81. 18 This view is not to denigrate the Advisory Committee or its influence. The committee focused on aboriginal culture, and it led to the establish-

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20

21 22 23 24 25 26

27

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Notes to Pages 61–75

ment of the Ontario Aboriginal Crafts Council by the end of the 1960s, thereby making a giant step forward in making aboriginal culture of greater significance and not just relegated to tourist crafts. But this had little or no impact on internal government processes regarding aboriginal issues. Ed Rogers indirectly drew my attention to this fact when I asked him about the influence of academics or other professionals on aboriginal policy; he stated that lobby groups such as the Indian-Eskimo Association, later the Canadian Association in Support of Aboriginal Peoples, was a more effective device to make changes in government policy. See my “The Professionalization of Historical Research,” 27–45. Advisory groups, of course, do not make government policy but merely provide advice and usually only when it is asked for by government. The Indian Commission of Ontario still carried that political baggage with it to until its demise in 2000, and it was for the most part seen by First Nations as a tool of the federal and provincial governments to deflect criticism and to do nothing on hard First Nation issues. See Hawthorn, A Survey of the Contemporary Indians of Canada, part 1, 13. McNab, Circles of Time, see, for example, chapter 3, on the Assabaska Land Claim. See McNab, Circles of Time, 45–74, on the history of Temagami and the people of Bear Island. Lischke and McNab, Walking a Tightrope, 1–18. See my “Who Is on Trial?” 117–34. This state of affairs is beginning to change with court victories at both the trial and the Court of Appeal in 2000-01 by the Metis in Ontario in the Powley hunting case. The Supreme Court of Canada heard the case on 17 March 2003; on 19 September 2003, it handed down its unanimous ruling with an unequivocal victory for the Metis on their hunting rights. See my “‘We are sorry,’” chapter 29 in Canada’s First Nations. See the examples in my Circles of Time.

Chapter Five 1 I joined the Office of Indian Resource Policy on 2 January 1979 as Indian land claims researcher and stayed in that office until Friday, 20 November 1987. I started with the Ontario Native Affairs Directorate as its land

Notes to Pages 75–82

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21

22

23 24

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213

claims advisor on Monday, 23 November 1987. My last day with the Ontario Native Affairs Secretariat was on Halloween, 31 October 1991. Hall, “Where Justice Lies,” 223–53. Justice Steele’s ruling can be found in the Canadian Native Law Reporter, no. 1 (1985), 1–119. Hall, “Where Justice Lies,” 232. Ibid., 223–53. Clark, Justice in Paradise, 10. Clark notes that his mother came from an “Italian, French and Indian family.” This point is also made by Hall in his “Where Justice Lies.” Rogers, personal communication with the author, February 1982. This information was provided to me after the trial was over by Rogers, curator of Ethnology at the Royal Ontario Museum, long after the trial ended in 1984. These judgements can be found in Canadian Native Law Reporter. Hall, “Where Justice Lies,” 229–31. Ibid., 223–53. Ibid., 239. Ibid., 232. Ibid., 223–53. Rupert Ross has described this well in his Returning to the Teachings, Exploring Aboriginal Justice, and Dancing with a Ghost. Ross, “Introduction” to Dancing with a Ghost, xiii. For a different view from the perspective of the law, see Paul Williams, ‘“Oral Traditions on Trial,” Gin Das Winan, 29–34. Ross, “Introduction” to Dancing with a Ghost, xiv. Wright has since become a judge while McCabe was appointed Queen’s Counsel for his efforts and is now retired. Compare the remarks made by Potts at the Research Symposium, “Refiguring Wilderness: A Research Symposium at Wanapitei on Lake Temagami,” Frost Centre for Canadian Heritage and Development Studies, Wanapitei, Lake Temagami, Trent University, 1 September 1996. They are partly contained in Lischke and McNab, “Actions of Peace: Introduction,” 1–9. For a legal commentary on the Justice Steele ruling and the Ontario Court of Appeal decision, see McNeil, “The Temagami Indian Land Claim,”185–222. Hall, “Where Justice Lies,” 236. Ibid., 243.

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Notes to Pages 82–102

Clark, Justice in Paradise, 65–81. Ibid., 80–1. Berger, Northern Frontier Northern Homeland. See chapter 7, below, on the context of the 1989 taa offer of settlement. Compare with McNab, Circles of Time, 117–34, especially chapter 6, on the Manitoulin Island negotiations.

Chapter Six 1 Leighton, “The Development of Federal Indian Policy in Canada.” 2 McNab, “The Professionalization of Historical Research,” 27–45. 3 Final Report of the Ipperwash Inquiry, 31 May 2007. This was one of the Inquiry’s recommendations accepted by the Ontario Government. 4 Although Hydro One Inc. is a corporate creation of the Ontario Government, it has always taken its own path on aboriginal matters, as its commitment to its own aboriginal policy shows. I would also like to thank John Peters, then of the Aboriginal and Northern Affairs Branch of Hydro One Inc., who suggested this difference to me in a personal communication, 10 January 1997. See also my “‘The Ill-Considered Objections of a Few Backward Indians,’” 228–49. 5 This drawing is based on my “Drawings, Volume I, 1987–1988,” November-December, 1987. My journals are writings (which are drawings) and also drawings. 6 Scott, To Make A Difference. There is not very much about aboriginal issues in this memoir. 7 Jim Morrison, who had been appointed chair of the Stewardship Council, told the story of the council’s demise at the political hands of the ndp in his remarks at the Research Symposium, “Refiguring Wilderness.” 8 His ideas on the subject of self-government can be found in his paper “Sources of Power,” 45–50. This paper is quite at odds philosophically from the statements by former Premier Bob Rae in the same book, “The Road to Self-Determination,” 150–5. 9 McNab, “Drawings, Volume 1, 1987–1988,” December 1987. 10 Ibid. 11 Ibid., January 1988. 12 Final Report of the Ipperwash Inquiry, 31 May 2007. This was one of the Inquiry’s recommendations accepted by the Ontario Government. 13 McNab, “Drawings, Volume 1, 1987–1988,” December 1987.

Notes to Pages 102–29

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14 On this camp, see my “The Professionalization of Historical Research,” 27–45. 15 McNab, “Drawings, Volume 1, 1987–1988,” February 1988. 16 I had been at those negotiations as the provincial representative for more than five years before this meeting. The negotiations had failed because the federal Department of Justice had re-evaluated its previous legal opinion on the value of the claim and had persuaded Indian Affairs bureaucrats to “discount it” by almost 100 percent. As a result, senior staff in Indian Affairs had pulled the plug on the federal negotiator, Derek Dawson. Dawson had not exceeded his mandate at all. This would not be the first time nor the last that Westland would attempt to rewrite “history.” 17 Now in the private sector, Rem Westland can currently be found at the website of the Corporate Research Group (accessed on 14 February 2008): www.thecrg.com/index.cfm?fuseaction=main. DspSubDivision&PageID=16&SubPageID=49&fkMainPage=0. 18 “Drawings, Volume 1, 1987-1988,” February 1988. 19 McNeil, “The Temagami Indian Land Claim,” 185–222.

Chapter Seven 1 For one aboriginal person’s perspective of these events, see Wagamese, The Terrible Summer. 2 Hodgins and Bordo, “Wilderness, Aboriginal Presence and the Land Claim,” 67–80. 3 Ibid., 68. 4 taa, “The Native Dimension: Key Dates,” 147–51. 5 Killan, “The Development of a Wilderness Park System,” Temagami, Bray and Thomson, eds, 85–122. 6 Hodgins, “Contexts of the Temagami Predicament,” ibid, 126–9. 7 Killan, “The Development of a Wilderness Park System,” 110. 8 Ibid., 109–11. 9 Ibid., 104. 10 Potts, “Teme-Augama Anishnabai,” 201–28. 11 “Drawings, Volume 1, 1987–1988,” June 1988. 12 Ibid., June-July 1988. 13 “Ibid., August 1988. 14 For the Manitoulin Island settlement negotiations, see chapter 9 of my Circles of Time.

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Notes to Pages 130–49

15 “Drawings, Volume 1, 1987–1988,” August-October 1988. 16 Ibid., November 1988. 17 Ibid., December 1988; “Drawings, Volume 2, 1989,” January-February 1989.

Chapter Eight 1 The permanent and official record of what is said in the legislature. 2 It was not until the following year that monies from this fund were accessed from the Management Board of Cabinet. The monies were not used to fund First Nations “economic participation” but rather were given to First Nations directly through contribution agreements with the directorate to assist them in negotiating agreements with the province. Indirectly, they may have assisted in aboriginal economic development. 3 See the legal arguments against the Steele and the Court of Appeal ruling in Kent McNeil, “The Temagami Indian Land Claim,” 185–222. The Ontario Court of Appeal decision can be found in Canadian Native Law Reporter, 1989, 2 cnlr, 73-89. 4 “Drawings, Volume 2, 1989,” February 1989. 5 Ibid., March 1989. 6 Ironically, Cullingham is now doing a doctoral dissertation on this issue in the History Department at York University, where I also teach. 7 “Drawings, Volume 2, 1989,” April-August 1989. 8 The ruling can be found in the Canadian Native Law Reporter 4 (1990), 3–6. 9 “Drawings, Volume 2, 1989,” January-December 1989. 10 Rae, From Protest to Power, 109–10. 11 Scott (born 1934), after a devastating stroke in 1993, left politics altogether and passed away in 2006. In his memoirs, Scott named his first romantic partner as Kim Yakabuski (who passed away late in 1993), son of former Tory politician Paul Yakabuski (1922–87). Although everyone knew Scott was gay, it was not a matter of public consumption. I found out about Kim’s relationship with Scott after the publication of the memoirs. Kim turned out to be one of the first students in my “Indian History” class at Wilfrid Laurier University in 1975–76; he was then a physical education student at the neighbouring University of Waterloo, See Scott, To Make a Difference. 12 See Smith’s “Ontario’s Approach to Aboriginal Self-Government,” 50–7.

Notes to Pages 152–70

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Chapter Nine 1 2 3 4 5 6 7

8 9 10 11 12 13 14 15

16 17 18 19

See my Circles of Time, especially chapter 7, 135–46. “Drawings, Volume 4, 1990.” Ibid., February. Gerald Killan, Protected Places. Wagamese, The Terrible Summer. “Drawings, Volume 4, 1990.” onad, “Big Grassy Reserve Boundary Settled,” 24 February 2000, accessed on 17 February 2008 at: www.aboriginalaffairs.osaa. gov.on.ca/english/news/archives/news_000224_2.htm/. “Drawings, Volume 3, 1990,” July. The best published account from the “inside” of this resistance in summer 1990 is Hall, “Blockade at Long Lake 58,” 66–89. Ibid. “Drawings, Volume 3, 1990,” August. “Drawings, Volume 4, 1990,” August. “Drawings, Volume 3, 1990,” August. Ibid., September. See Monahan, Storming the Pink Palace. Pat, now academic vicepresident and provost, is a colleague of mine at York University; he worked for Ian Scott on constitutional issues, especially Meech Lake. See also his Meech Lake. “Drawings, Volume 4, 1990,” September. Ibid. For a different view see Rae, From Protest to Power, 109–10. Ibid., 109–10, 159–91.

Chapter Ten 1 2 3 4

Walkom, Rae Days, 212. Ibid. Rae, “The Road to Self-Determination,” 150–5. Krasnick, “Sources of Power: What Is First Nation’s Government?” 45–50. 5 “Drawings, Volume 3, 1990,” October 1990. 6 Rae, “The Road to Self-Determination,” 151. 7 Ibid., 154.

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Notes to Pages 170–83

8 Rae, From Protest to Power. 9 On the importance of the Long Lac elders that summer, see Hall, “Blockade at Long Lake 58,” 66–89. 10 “Drawings, Volume 4,” July 1990. 11 Ibid., October-November 1990. 12 Letter, Bud Wildman to Chief Sydney Abraham, dated 12 December 1990. 13 “Drawings, Volumes 5–6, 1991,” 1991. 14 “Drawings, Volume 4, 1990,” November 1990. 15 Chiefs of Ontario Magazine, 1997, accessed 17 February 2008 at: www.chiefs-of-ontario.org/magazine/2-02.html. 16 Walkom, Rae Days, 224–5. 17 Walkom, Rae Days, 249. 18 This work is not about the development of aboriginal policy by Ontario Hydro, now Hydro One Inc. While Ontario Hydro undeniably was a creature of Ontario, Ontario Hydro’s policy on aboriginal people developed separately and has evolved differently according Hydro’s needs and not the province’s requirements. My experiences working in the provincial civil service did not include reference to Ontario Hydro’s activities and they always remained quite separate, at least since the 1970s. In addition, Hydro now has an aboriginal policy while Ontario does not. The history of the development of Ontario Hydro policy on aboriginal matters deserves a separate volume. Since 1991 I have participated in one of Ontario Hydro’s negotiation process on hydro-electricity and the Bkejwanong Reserve. In contrast, Rae’s ndp Government refused to negotiate any agreements with the Walpole Island First Nation during this time. 19 Rae, From Protest to Power, 109–10. 20 Ibid., 128–31. See also Monahan, Storming the Pink Palace. 21 Rae, From Protest to Power, 88, 129–31, 174. 22 Monahan, Storming the Pink Palace. 23 Walkom, Rae Days, 111, 224–5. 24 Ibid., 213. 25 Platiel, “Ipperwash Statements,”A1, A5. 26 Walkom, Rae Days, 224–5. 27 Platiel, “Ipperwash Statements,”A1, A5. 28 For an Anishnabek perspective, see the Anishnabek News 7, issue 10 (October 1995), 1, 24. 29 Harries, “T-Shirt Logo.”

Notes to Pages 183–9

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30 Edwards, One Dead Indian. To date, this is still the best book on Ipperwash. 31 The Ipperwash final report of 31 May 2007 was accessed on 17 February 2008 at: www.ipperwashinquiry.ca/. 32 Linden, Report of the Ipperwash Inquiry, 29. 33 Ibid., 43. 34 Ibid., 44. 35 Ibid., 73. 36 All of these recommendations and findings are available in the Report of the Ipperwash Inquiry in the fourth volume of the executive summary, see Linden, Report of the Ipperwash Inquiry, 95–112. 37 www.cbc.ca/canada/story/2007/12/20/ipperwash-ont.html. 38 Ibid.

Retrospect 1 Compare this view with that of Bobiwash, “The history of Native People in the Toronto Area,” 5–24. 2 See for example, Robinson, Toronto during the French Regime. Surprisingly, this work remains as the standard historical work on this subject sixty-five years after it was first published. Also the works of George Edward Tait (1910–2002), such as Breastplate and Buckskin, have been formative in shaping the views of non-aboriginal people in terms of Canada’s history from a nationalist perspective. 3 McNab and Ute Lischke, “Introduction,” Walking a Tightrope, 1–18. It should be noted that this situation is gradually changing. See, for example, Armstrong, Toronto, 15–20. 4 Dictionary of Canadian Biography Online, “Étienne Brûlé,” www. biographi.ca/009004-119.01-e.php?&id_nbr=95; accessed on 19 November 2008. 5 This study shows also illustrates the significance of the Metis in Canada as a place since “we are still here”; see also my (with Ute Lischke), “We Are Still Here: Introduction,” 1–9. 6 See my “Hearty Co-operation and Efficient Aid,” 131–49; “Metis Participation in the Treaty-Making Process in Ontario,” 57–79. 7 See the life of Archie Belaney (1888–1938; aka Grey Owl, or wenjiganoozhiinh, meaning “Great Horned Owl”), a contemporary who was

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Notes to Pages 189–92

adopted into the Temagami First Nation and married indigenous women, as portrayed accurately in Richard Attenborough’s film Grey Owl (2000). See also my “‘those freebooters would shoot me like a dog.’” Canadian Native Law Reporter 3 (1991), 79–81. McNab, “A Few Thoughts,” 18–21. Delgamuukw v. British Columbia, 31–2. See Report of the Royal Commission on Aboriginal Peoples, vol. 1, 33. Delgamuukw v. British Columbia, 31–2. Walker, “Race,” Rights and the Law in the Supreme Court of Canada, 328–9; Harring, “The Six Nations Confederacy,” 181–230. The political philosopher James Tully, in his 1995 book, Strange Multiplicity, makes a contribution to Canadian constitutional and federalist discussions using Bill Reid’s canoe sculpture. But Tully’s analysis also misses the mark, for he has misinterpreted the central figure in the canoe as only a facilitator in constitutional discussions. Perhaps he does not understand the broader spiritual role of the Great Mystery or the storyteller in aboriginal oral traditions. See xi, xv, 17-34, 202–12. Tully presented his work in the first John Robert Seeley Memorial lectures at Cambridge University in 1994.

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Index

aboriginal governance (sovereignty) 11, 14, 27, 31, 36, 56, 82, 152, 156, 158, 163–6, 169, 174–6, 179–80, 191, 222–4 aboriginal trade 15 adhesion 41, 78, 137, 190 agriculture. See horticulture Akwesasne (reserve) 92, 152, 163, 176 Albany 12, 223 Algonquins (Golden Lake) 22, 74, 106, 117, 129, 155 American Revolution 18 Amherstburg 11, 33, 35, 201, 206 Anderdon Reserve 34 Anderson, General William (Bill) 61 Anderson, Thomas Gummersal 41– 2, 204 Anishinabe. See Ojibwa Assabaska First Nation 63–4, 107, 157, 212, 227 assimilation, policy of 7, 20, 22, 29, 33

Bawating 36 Bear Island (reserve) ix, 5, 9–11, 19, 37, 39–41, 52–7, 65–7, 73, 75–6, 81–3, 85–7, 100, 108, 127–8, 130, 135, 140, 157, 179, 192, 208–9, 212, 230 Berger (Thomas) Inquiry 58, 84, 214, 221 Big Grassy First Nation 107, 156–7, 217 Bishop, Charles 66–7, 202 Bkejwanong (Walpole Island) First Nations 10, 32, 35, 74, 106, 156, 169, 176, 196, 198, 206, 218, 224, 228, 230 blockades 9, 64, 66, 83, 88–9, 93, 99–100, 109–13, 116–17, 130, 132, 134–5, 141, 144, 149, 152–3, 155–7, 159–66, 168, 171, 181, 184, 187–8, 196, 210, 225, 227, 229 Bond Head, Sir Francis 20, 32, 201, 225 Bradley, James 114–16, 120, 123

234

British Columbia 57, 70, 92–5, 97, 159, 163, 166, 179, 191, 220, 222, 225, 229, 231 British Empire 8, 18, 28, 31, 188, 196, 198–200, 226 British Imperial Policy 25, 199 British North America Act (1867) 21, 51 Bruce, Robert 43–4, 47, 205, 229 bureaucracy (Ontario provincial) 3, 73, 84, 93–5, 97–9, 108, 117, 120, 178 Cabinet Committee on Native Affairs 61, 114, 145, 153, 155 Calder (case) 7, 57, 190, 222 cautions (Temagami) 39–40, 53, 56–8, 112, 114, 117, 122–3, 137, 179, 190, 202 census 46–7 Charlottetown Accord 56, 168, 180–1 civilization policies 20–2, 29–30, 33–4, 169, 199, 201, 203, 229 Clapp, Judy 72–3, 93, 102 Clench, Joseph Brant 35–6, 201 CN Railway 157, 159, 162–3 comprehensive claims policy 7, 71, 86–7, 106, 129, 178, 191 Confederation of Canada (1867) 21, 32, 36 conservation officers (omnr) 68–70 Constitution of Canada (1982) 4, 14, 38, 56, 68–70, 75–6, 82–3, 91–2, 96–8, 149, 168, 177, 180, 197, 201, 217, 220, 222, 226, 229, 231 Conway, Thor 78–9 cottages 52

❖

Index

Council Fire 44 court injunctions 122, 148 Covenant Chain of Silver 12, 16–17, 21, 45, 118, 176, 188, 202 Crystal Mel 101, 118–19, 122, 125, 154 Cullingham, Jamie 142–3, 216 Currie, Cam 59, 63, 210 Delgamuukw 190–2 Department of Indian Affairs (inac) 11, 25, 33, 41, 43, 46, 49–52, 86, 103, 105, 149, 157, 160–2, 197, 201, 203, 207–8, 215, 223, 225, 231 Department of Justice 103–4, 215 discount policy 95, 104–5, 191, 215 Eccles, William J. 77–8, 142 economic development 6–7, 21, 26– 9, 31–2, 36–7, 39–40, 53, 56, 58– 9, 86, 92, 97, 108–9, 116–17, 120. 124–5, 131–2, 135–6, 146, 158, 160, 164–5, 173, 216, 223–4, 229 education 20, 27, 30, 32, 76, 106, 135, 186, 198 Eger, Tim 102 Elders 10, 65, 79–80, 103, 152, 158, 164, 171, 218 environment 57–9, 61, 76, 111–24, 133–4, 139, 145–6, 148–9, 155, 178, 191, 225 extinction 23, 25 Feilders, Bart 96, 100, 124–8, 130– 1, 133, 138–41, 143–6, 148, 150, 166, 178 First World War 52 Fontaine, Rene 124–5, 133

Index

Fort William 44 fraud(s) 12, 15, 35, 47 fur trade 41, 59, 226 Garden River 42–5, 47, 156–7, 163, 169, 173, 207 George, Dudley 4, 65, 70, 101, 181–4, 186, 223 Georgian Bay 49 Grassy Narrows 96 Great Depression 52 Great Lakes 17, 32, 37, 39, 42, 156, 228, 231 Green Lake 42, 47, 42 Guerin (court case) 190 Gus Wen Tah (Two Row Wampum) 11–12 Halifax 86 Hampton, Howard 135, 170, 172 Harris Mike 4, 40, 65, 82, 107, 149, 175, 181–4 Haudenosaunee 12 Hawthorn Report 61, 147, 213, 223 Heidenreich, Conrad 54, 78 Henderson, Chief Janice 170 Hodgins, Bruce 77, 85, 140, 142–4, 196, 202–5, 207–9, 215, 223, 225, 227–8 horticulture (agriculture) 31, 72 Hudson’s Bay Company 14, 59 Illington, Joy 94–5 imperialism 8, 31, 225 independent tribunal 28, 109 Indian Act 21, 33, 36, 198, 201, 229 Indian Agents 35–6, 49–50, 162, 196, 201, 223

❖

235

Indian Commission of Ontario 3–4, 58, 61, 72, 76, 172, 175, 212 Indian territory 13, 15, 20, 40, 230 interim arrangements 62, 67–70, 73, 126, 130, 141–2, 144, 164 international boundary 152, 192 interpreters 3, 26, 37, 189 Ipperwash 65, 70, 72, 82, 101, 118, 123, 181, 183–4, 186–7, 214, 218–19, 222–3, 225, 230 Ironside, George Jr 11, 33–5, 41, 46, 48–9, 53, 66, 189, 196–7, 201–2, 204–7, 223–5, 228 Jarvis, Samuel Peters 35–6, 201 Johnson, Sir William 12–13, 16–17, 197, 223 Kahnawake 163 Kanesatake (Oka) 9, 96, 106–7, 109, 118, 123, 149, 151–3, 156–7, 159–64, 179, 184, 187, 190, 202, 210, 226, 232 Kerrio, Vincent 83, 87, 92, 114–17, 119–20, 130, 140, 146, 154 Kettle Point First Nation 163 Krasnick, Mark 86, 91–103, 106–7, 122–3, 125, 129, 136, 141–4, 147, 150–1, 153, 156–7, 163, 169, 173, 179, 217, 224 Laal Stien 123, 140 Lachappelle, Caroline 94 Lady Evelyn Smoothwater Provincial Park 113–15, 122 Lake Nipissing 43, 45–7 Land Titles Act 53 Laronde, Mary 75, 142–3, 145–6, 151, 224

236

❖

Linden, Sydney 183, 219, 225 Long Lac #58 First Nation 69, 156–65, 170–5, 218 Macdonald, Craig 78–9 MacDonald, John A. 50–1 Macdonnell, Allan 43 MacNab, Sir Allan Napier 43, 204, 221 Manitoulin Island 11, 17, 32, 37, 40–1, 45–6, 49, 55, 88. 94, 96, 100, 102, 104, 108, 129, 147, 156, 166, 169, 207, 214–15 Manitowaning 11, 35, 40–1, 43, 45– 9, 196, 203, 205–7 McLeod, Lyn 151, 154 Meech Lake 56, 149, 152, 155, 167, 180, 217, 229 meeting ground 26, 37, 192, 228 Merivale, Herman 22–32, 38, 196, 198–202, 226, 229 Metis 3, 11, 22, 33, 35, 37, 39, 43, 49, 52, 55, 62, 68–9, 76–7, 171, 188–9, 195, 201, 209, 212, 219, 222, 225–8 Mica Bay 43, 45 Michilimackinac 17 Milloy, John S. 33, 142–3, 198, 201, 229 mineral rights 6, 38, 42, 51, 53, 58, 85, 137 mining 22, 38–9, 43–4, 57, 85, 114, 158 Mississauga River First Nation 79, 104, 107–8, 156, 169, 172 Monahan, Patrick 166, 217–18, 229 Morrison, James 42, 65, 78–9, 202, 204–5, 214, 229 Morse, Bradford 142–3

Index

N’Daki Menan 7, 11, 39–40, 53, 112, 115, 125, 189, 224 Nebenegwune (Nabonaigonai) 43–4, 143 New Democratic Party (Ontario) 4, 40, 57–8, 61, 72, 83, 96–7, 112, 120, 127, 135–6, 147, 149, 155, 159, 163–76, 179–81, 190, 214, 218, 229 Ojibwa (Anishinabe) 10, 18, 36–7 Oka. See Kanesatake Ontario Hydro 163, 172, 178, 214, 218, 229 Ontario Ministry of the Attorney General 87 Ontario Ministry of the Environment. See environment Ontario Ministry of Native Affairs (formerly Ontario Native Affairs Directorate/Secretariat) 91–3, 95, 118, 153, 169, 174–6, 181, 211, 217 Ontario Ministry of Natural Resources 59–72, 78, 84–5, 87, 91–3, 98, 100–1, 109, 114–22, 124, 126– 8, 131–2, 134, 138–40, 144–6, 148, 150–1, 153–5, 160–1, 164–5, 173, 209–11, 230 Ontario Provincial Police (opp) 4, 119, 123, 140, 148, 157, 159, 161, 163, 171, 181–4, 186, 223 Ontario Public Lands Act 122 Ottawa 176 patents 14, 114 Peau de Chat, Chief 44 Penetanguishene 137 Pennefather, Robert James 46, 48, 197, 202, 206–7, 225

Index

Peterborough 144 Peterson, David (provincial Liberals) 4, 66, 83, 88, 101, 111, 120, 124, 130, 138, 150, 153, 155, 161–2, 166 Point Grondine 169 Pontiac’s resistance 12, 16, 197, 222 Potawatomi 176 Potts, Gary 5, 53, 76, 118, 122–3, 125, 127, 129, 131, 138–41, 143, 145, 149–51, 176, 189, 205–6, 208–9, 213, 215 Pouliot, Gilles 135, 164–5, 173–4 Powley case 69, 212 presents 11, 13, 17–19, 26, 41, 46–7, 203, 205–6, 223 provisions 11, 20, 41 Quebec City 13–14, 26, 83, 149, 152, 163 Queen’s Park 51, 53, 55, 92, 101, 117–18, 120, 126, 130, 134, 188, 227 racism 5, 9, 30, 49, 70, 82, 87, 94, 170, 181, 191, 200 Rae, Bob 4, 40, 96, 99, 111, 149, 156, 160, 163, 165, 167–70, 175–6, 178–81, 202, 214, 216–18, 230–1 resistance (aboriginal) x, 5, 8–9, 12–13, 19, 25, 31, 35–6, 43–5, 49, 107, 114, 121, 134, 151–2, 172, 179, 181, 186, 190, 196, 200, 217, 225–9 roads 52, 124, 126–7, 132, 139–40, 144, 163–4, 172 Robinson, William Benjamin 43–6, 48, 230

❖

237

Robinson Treaties (Huron and Superior) 5, 8, 19, 21, 26, 33, 35–8, 40– 8, 50–1, 54, 65–9, 74, 77–9, 81–2, 84, 137, 156–8, 160, 164, 171–4, 190, 202, 204–5, 209, 219, 229 Rogers, Edward S. 63, 78, 202, 212– 13, 230 Royal Commission on Aboriginal Peoples (rcap) 176, 191 Royal Proclamation of 1763 8, 13, 16, 20, 22–3, 40, 197 Sault Ste Marie 17, 36, 41–3, 45, 47– 8, 60, 69, 104, 154, 156, 163, 173, 202, 206–7, 225 Scott, Duncan Campbell 52, 189, 208, 227, 231 Scott, Ian G, 4, 66, 72–3, 82–7, 91–3, 96, 116–17, 120, 122–3, 128–33, 135–8, 140, 145–51, 154, 159–60, 162, 165–7, 169, 214, 216–17, 231 Second World War 61, 182 Shingacouse 43–4, 160 Six Nations 12–13, 22, 35, 163, 176, 186, 220, 223 Skene, Charles 50–1, 207 Smith, Brock 124–6, 133, 137, 144–5 Smith, Donald B. 78, 202, 230 Smith, Wallis 147–51, 216, 231 Social Credit Party 93 Sparrow case 62, 69–70, 190 squatting 33, 52–3 Steele, Donald 65–6, 75–6, 78–84, 131, 137–8, 142, 191, 213, 216 Stevenson, Mark 96, 104, 129, 169 Stoney Point First Nation 163, 181, 185–6

238

Tagawininni, Chief 45, 137, 142–3 Temagami Committee 121, 124–5, 127, 130, 137–40, 144, 146 Temagami Wilderness Society 116, 138, 144 Teme-Augama Anishnabai (taa) ix, 3–9, 11, 16, 19, 33–4, 37–60, 63, 65, 67–8, 75–9, 81–9, 967, 100, 108–14, 116–23, 125–55, 158–9, 166, 179, 189–90, 204, 209–10, 214–15 Thessalon 207 Tonene, Chief 50 Tough, George 122–3, 125–6, 137, 145, 154, 161 Two Row Wampum. See Gus Wen Tah traplines (trapping) 29, 31, 36, 46, 50, 53, 59–60, 68–70, 115, 158, 164, 170, 173, 210 treaties. See Robinson Treaties; Treaty of Co-Existence; Treaty of Niagara Treaty of Co-Existence 45, 56, 149

❖

Index

Treaty of Niagara 12, 22, 45, 197 Trent University 77, 85, 140–2, 144, 146, 159, 213, 223, 226–7, 229, 231 Ugarenko, Len 54, 62, 66–7, 73, 209 Walpole Island First Nations. See Bkejwanong (Walpole Island) First Nations Wampum belts 11–13, 16–17, 20, 188, 192 Wanapitei 46, 85, 213, 229 War of 1812 18, 20–1 Wendaban Stewardship Authority 97, 127–8, 145–6 White, Aubrey 52, 59, 204, 208 Wikwemikong 207 Wildman, Bud 160, 165, 171–6, 179, 218 Wilson, E.G. 59–64, 66–8, 70–3, 92–3, 107–8, 202, 209–11