Anishinabe Interest in Islands, Fish and Water
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Anishinabe Interest in Islands, Fish and Water RHONDA TELFORD Historical Research & Consulting Services INTRODUCTION According to their oral traditions, the Anishinabe south of the height of land in Ontario: that is, the Ojibway of the north shores of Lakes Superior and Huron, the Chippewa and Mississagua of southwestern and central Ontario, did not surrender the water, land under water, fish or game to the Crown through treaties. Certain islands had at times been shared with the Crown through treaties; all other islands remained under First Nations ownership. Under the rules of the Royal Proclamation of 1763, the Crown could not dispose of Aboriginal property without Aboriginal consent obtained through a public assembly and Treaty.1 Prior to its fishing legislation of 1857, the Crown was supposed to have treated the Great Lakes fisheries as a public right. However, both the Crown Lands and Indian Departments had at various times issued licenses of occupation or leases to individuals or small companies. Some commen tators have argued that these dispositions were on crown lands fronting on desirable fishing sites.2 An examination of some of the pre-1857 fishery dispositions proves this to be incorrect. For example, in 1834 Crown Lands issued an order-m-council to the Huron Fishing Co. for the Fishing Islands, embracing land, water and land under water over which the Crown held no title. This order-m-council stated that "a License of Occupation during pleasure be Granted to the Huron Fishing Company for the Islands referred to in the annexed plan." The license included the Surveyor General's description, embracing 13 islands (shown on an attached map): ...commencing at a Point of Land in Lake Huron called Chief Point, then into Lake Huron west one mile and a quarter, then north 4 miles and three eights of a mile, then east two miles and a half more or less to the East Royal Proclamation, 7 October 1763. Revised statutes of Canada, 1985, Appendix 1. 2 Alan B McCullough, The commercial fishery of the Great Lakes (Ottawa: Canadian Parks Service, Environment Canada, 1989). ISLANDS, FISH AND WATER 403 Shore of Lake Huron, Then southerly along the waters edge of the Lake following the several points and Bays to the place of beginning.3 The Surveyor General's license did not refer to any length of term for the license. The fact that this license specifically included water boundaries was significant, indicating Crown recognition of Aboriginal water rights. The Saugeen Nation similarly understood that it owned the fish and water.4 The terms of this agreement were breached very early, but neither the Crown Land nor the Indian Department acted to protect Anishinabe inter ests. Furthermore, this lease, as well as subsequent ones, were not abro gated, but transferred to other users without Aboriginal consent.5 The suggestion that fishing was a public right was misguided and a colonial act of appropriation of resources which did not belong to the Crown. Fishing privileges could not be held by or disposed of to the public and others until title or sharing rights to the water, fish, islands or land required was obtained through a treaty with the appropriate First Nation. The passage of the Fishing Act in 1857 by the Crown Land Department was .. singular act of appropriation. Not only was it illegal from an Aboriginal perspective, since no "Great Lakes" First Nations had surren dered either water or fish to the Crown, it was also questionable from the public's perspective, since fishing had been held (although wrongly) to be a 'public' right. It is not at all clear under what legislative authority, or by what right the Crown subverted the Royal Proclamation or an alleged 'public' right. Certainly both 'communities' were injured here. However, the greater injury was perpetrated against the First Nation owners because the Crown officially appropriated jurisdiction and beneficial interest in an important part of the Aboriginal economy. This paper will examine the continuous chain of Aboriginal assertions and actions to an exclusive right to islands, fish and water. First Nation 3 AO, RG 1, A-VII, v. 10, No. 66, Order-in-Council, 21 May 1834. MNR, Crown Land Registry, LO #158, 30 May 1834, Surveyor General's Office, License of Occupation and attached map. 4 First Nations considered themselves as owners of the waters, see for example: NAC, RG 10, v. 1011:93-94, (Paudash Papers), 23 Jan 1840, General Council. Present were delegates from: Credit, Alderville, Rice, Mud and Balsam Lakes, the Narrows, Snake Island, Coldwater, Saugeeng, St. Clair and Muncey Town. 5 See for example, Victor Lytwyn, "The usurpation of Aboriginal fishing rights: a study of the Saugeen nation's fishing islands in Lake Huron." Co-existence9 Studies in Ontario-First Nations relations ed. by Bruce W. Hodgins, Shawn Heard and John S Milloy (Peterborough, 1992), 81-103. 404 RHONDA TELFORD interests were lost in the competing atmosphere of departmental and then federal/provincial disputes over the ownership and beneficial interest in Aboriginal lands and resources. In the aftermath of court cases between 1882 and the end of the century, it was clear, from a colonial perspective, that provincial rights over water and fisheries had won at the expense of central ones. It is common to point to the British North America Act of 1867 as creating the severance between Aboriginal People and the beneficial interest in their land and resources. This division can be summed up as that between section 109 giving ownership and beneficial interest in all land and natural resources in the province to Ontario and section 91 (24) giving Canada responsibility for Native peoples. This constitutional division led to severe disputes between Ontario's Crown Land Department and the federal Department of Indian Affairs. Both claimed the right to dispose of natural resources and to retain the beneficial interest.6 Except for seven crucial years between 1860 and 1867, these kinds of competitions between the two departments had existed before 1867. There had always been disagreements between the Crown Land and Indian departments over the disposal and beneficial interest in Aboriginal property. For example, during the first decades of government in Upper Canada, the Crown Land Department licensed unceded fisheries adjacent to Fighting Island in the Detroit River and the Fishing Islands in Lake Huron. It disposed of timber, minerals and land under licenses, leases and sometimes patents along the north shores of Lakes Superior and Huron, pocketing the money. Prior to 1857, the Indian Department (and/or its agents) occasionally leased Aboriginal fisheries, timber and land, but was supposed to retain the revenues for the benefit of the First Nation. In addition, there were disputes between some First Nations (especially 6 For a detailed discussion of the federal and provincial disputes see, Rhonda Telford "The sound of the rustling of the gold is under my feet where I stand; we have a rich country": a history of abonginal mineral resources in Ontano (Ph D dissertation,University of Toronto, 1996), ch. 3. ISLANDS, FISH AND WATER 405 Saugeen and Nawash) and the Indian Department over who had the right to construct fishing deals and how the monies would be retained and spent.7 APPROPRIATION AND RESISTANCE: THE FISHERY 1856-98 To reveal how the Crown appropriated Aboriginal fisheries and water a number of questions could be addressed. For example, was there a confluence of interests between Crown Lands and the Indian Departments in 1856 when the first reading of the fishery bill was made and when the Indian Department took hundreds of Aboriginal islands under various treaties? If there was no collusion, which office (Crown Lands, Indian or Colonial) or officer propelled the process of appropriation? Research to date indicates that the Crown Land Department as a singular entity, and specifically its head, Phillip Vankoughnet, drove the process. Competing interests and departmental aggrandizement may have been at the root of Superintendent General R. T. Pennefather's June 1856 islands treaties. These treaties embraced hundreds of islands (many of which were 7 The Crown Land Department issued a Licence of Occupation [hereinafter: LO] to Thomas Paxton for Fighting Island on 13 Sep 1827 and collected rent on the same for the following 29 years. See NAC, RG 10, v. 325:217982-4, 218038. Paxton and the Huron of Anderdon concluded a rental agreement for Fighting Island at the beginning of August of the same year. Payments were made in 1827 and 1828 with the knowledge of Indian Agent George Ironside. See 325:217,802-7. In 1829 and 1839 respectively, Ironside witnessed and endorsed copies of a 999 year lease and a deed from the Chippewa, Ottawa and Pottowatomi to Paxton: v. 2246:n.p. and v. 787: 92-4. Direct transactions regarding Fighting Island continued between Paxton and the DIA from 1840 to 1 870, including rental bonds, Arbitration, Patent and a federal order-in-council granting him fishing nghts around the island without payment of a fee. The two departments also issued a variety of documents dealing with the Saugeen and Nawash Fishing Islands. See for example: MNR, Crown Land Registry, LO, Crown Land Dept. to A. McGreggor, 15 Dec 1832. This LO was unilaterally abrogated by the Crown Land Dept. on 21 May 1834 and reissued to the Huron Fishing Co. as discussed above in the text. The Indian Dept. had knowledge of these transactions either at the time or shortly thereafter, and references to them appear on Indian Dept. files. Throughout the 1840s to 1857, the Indian Dept. also issued a number of leases (with and without Saugeen and Nawash First Nations knowledge and consent).