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 fishan d 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,timbe r 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). See for example the following selected items: NAC, RG 10, v. 509: 207-8 S P Jarvis,ChiefSupenntendentofIndianAffairstoJ.M.Higginson,2May 1845; 'v. 537:212, T.G. Anderson to John Frost, 5 Jul 1851; v. 432:458-460, Adam Wilson toT. G. Anderson, 21 Jun 1854; v. 417:750-763, Indenture, 19 Sep 1856. As one example of the independent Sagueen and Nawash commercial fishery see: v. 409:743, requisitions signed by Wabatik and Sawyer, 7 Nov 1845; also p. 747, signed by Thomas Wabatick, Peter Sacko, Jacob Mittiguab, Peter Jones, David Sawyer, Henry Clifford, Richard Carney, 20 Dec 1845. 406 RHONDA TELFORD valuable only as fishingstations) . Pennefather made these treaties only two months after then Commissioner of Crown Lands, Joseph Cauchon had introduced fishing legislation in the Executive Council. Based on corre­ spondence from 1857 to early 1859, it would appear that Pennefather foresaw at least two positive outcomes from these treaties. First, he thought they gave the Indian Department the right to control the disposal of the islands for First Nation benefit. He may also have viewed the treaties as potential leverage to bar Crown Lands from disposing of Aboriginal islands without his knowledge. Second, it is clear that Pennefather linked the fishery and islands issues as he believed that the Indian Department would have the right to dispose of the fisheries sunounding these islands and adjacent to Reserve lands for First Nation benefit. This is clear from the tenor of an inspection and valuation report commissioned by the Indian Department on the islands in Lakes Simcoe, Couchiching and Georgian Bay shortly after the conclusion of its islands treaties. However, by March 1859, Pennefather knew he had made a mistake. Indian Department correspondence expressly stated it had no control over leasing fishing stations and that Crown Lands had unilaterally sold a number of Indian islands without retaining the proceeds for First Nations.8 This last issue was particularly troublesome to both the First Nations and to the Indian Department The Mississaguas of Alnwick complained that the Crown Land Department had sold some of their islands in the Bay of Quinte without their consent and pocketed the compensation. Upon investigation of the case, Indian Agent WR Bartlett reported that the Crown Land Department had in fact been renting a particular island since 1850,

8 Legislative Assembly Debates, 1856,2nd sess., 5th Pari. 25 Apr 1856, n.p. The debates were regularly published in an assortment of provincial newspapers. Canada, Indian treaties and surrenders, v. 1, see Surrender Nos. 76 (5 Jun 1856) 77 (19 Jun 1856), 78 (24 Jun 1856), 79 (9 Feb 1857), 80 (16 Jan 1857) and 80'/2 (19 Jan 1857). Only two islands were obtained after the passage of the Fishery Act on 1 June 1857 (Nos. 85 and 86, both 21 Jul 1857). A wider setting of these issues is given in Rhonda Telford, "The Anishinabe presentation of their fishing rights to the Duke of Newcastle and the Prince of Wales" in the Proceedings of the 30th Algonquian Conference (Winnipeg, in press). NAC, RG 10, v. 230:136781-801, Inspection & Valuation Report on the Islands in Georgian Bay, Lake Couchiching & Lake Simcoe- W. H.E.Napier to R.T. Pennefather, SGI A, 1 Dec 1856. v. 544:114 W R Bartlett VSIA to the Indian Chiefs & Warriors Cape Croker, 21 Dec 1858; p. 125 Bartlet to Chief & Councillors of Alnwick, 8 Jan 1859; pp. 126-7, Bartlett to A Diamond Belleville, 11 Jan 1859; p. 176, Bartlett to Wm Spence, Napanee, 29 Mar 1859 and pp. 201-4, Bartlett to various First Nations, 26, 27 May 1859. ISLANDS, FISH AND WATER 407 which it sold in 1857 at a combined total profit to itself of $720. Bartlett suggested that the Indian Department bill the Crown Land Department for this amount, which rightly belonged in the Aboriginal trust funds. Bartlett's enquiries soon came to involve dozens of islands in this area. The actions of the Crown Land Department were illegal since the First Nation did not surrender this and other islands until mid-1856. Bartlett concluded with the observation that: "The Islands included in the [1856] surrender above referred to, are very numerous, and have been, and will continue to be a continual source of trouble and annoyance to the Indian Department, so long as they are left to be dealt with by the Crown Land Department."9 Looming just in front of all of this was the pending transfer of government from imperial to provincial control. In 1860, the Commissioner of Crown Lands became the Superintendent General of Indian Affairs and remained in this position for seven formative years. Certain questions immediately arise. How soon did executive councillors here know that the Commissioner of Crown Lands would be the same man as the Superinten­ dent General? In particular, when did Phillip Vankoughnet know he would control both these positions? Why was Vankoughnet chosen over Pennefat­ her? As we shall see below, Vankoughnet himself was responsible for scooping up the powers and responsibilities of the Superintendent General. This is how Phillip Vankoughnet usurped the position and power of the Superintendent: according to a parliamentary reporter: ...Mr. Vankoughnet moved the second reading of the Bill to provide for the management of Indian Lands. The object of the Bill was to transfer specially the management of the Indian Lands from the Imperial Government to the Colonial Government. The reason for the change was a despatch received from the Home Government some time ago, announcing that after the present year, no sum would be put into the Estimates .. The Home Government thought that Canada was in a position to take care of the Indians herself... With regard to the Secretary of His Excellency, who was sometimes styled the Chief Superintendent of Indian Affairs, he begged to state that the Governor General was the Head of that Department, as the representative of the Imperial Govern­ ment and that, under the new management — he (Mr Vankoughnet) would assume [the] office [of Chief Superintendent of Indian Affairs].

9 NAC RG 10 v 544:145-6, W. R. Bartlett, VSIA to R. T. Pennefather, SGIA, 31 Jan 1859 Additional evidence that the Indian Dept. knew the Crown Land Dept. was selling islands without its knowledge or consent may be found m v. 545:464-5, Bartlett to C. T. Walcot, Accountant, 13 Aug 1861. 408 RHONDA TELFORD

There was no salary attached to it. He thought that the Crown Lands and the Indian Lands could be worked very well without a double set of employees.1 This dual responsibility was subsequently cemented by legislation." This amalgamation was a coup of such magnitude (in terms of Indian Affairs) that it in fact overshadowed anything that happened seven years later at the confederation of Canada and the passage of the British North America Act. Vankoughnet, however, was wrong. The Crown Lands and the Indian Lands could not be worked well together. It was a blatant conflict of interest and a breach of fiduciaryobligation . The fact that the Commis­ sioner of Crown Lands was the Superintendent General until confederation, meant that the most absurd correspondence imaginable circulated and the most contrary actions occurred under the auspices of the same man. For example, dozens of petitions for an exclusive fishery were sent from various First Nations, including Walpole Island, Christian Island, Snake Island, Cape Croker, Saugeen and Wikwemikong to their Agents. Responses authorized by the Superintendent General stated that the Indian Department had no authority over the leasing of the fisheries and that First Nations would have to deal with the Commissioner of Crown Lands, who was, of course the same man. Equally bizarre was that Agents were advised by the Superintendent General that the Indian Department held numerous islands, but that they were not for sale. Under the 1856 and 1857 islands treaties, these were supposed to have been sold for the benefit of the First Nations who owned them. While Superintendent General Vankoughnet and his successors (McDougall, Sherwood and Campbell) refused to sell these islands as he was bound to, as Commissioner of Crown Lands he was leasing fisheries from some of them with no benefit accruing to the First Nations. As he knew from the 1856 inspection and valuations many of these islands were valuable only for the fisheries adjacent to them.12 Thus

10 AO, Thompson's mirror of Parliament. Being a report of the debates in both houses of the Canadian legislature, No. 31, p. 8, 3rd Sess., 6th Pari., 23 Apr 1860. See also the report for 24 Apr 1860, No. 32:5, Vankoughnet was attempting to weaken the wording surrounding the Crown's definite role in land surrenders. He was called on this by the Hon. Mr. Morin. uAn Act Respecting the Management of the Indian Lands and Property. Cap. CLE Proclaimed 13 Dec 1860. 12 NAC, RG 10, Vol. 546:141-2, W. R. Bartlett, SIA to C. T. Walcot, Accountant ID, 19 Dec 1861; v. 427:380-4, Snake Island, Statement in Council, 27 Oct 1858- v 548:200, Bartlett to Walcot, 29 Jul 1864; p. 250, Bartlett to Alex'r McNabb, Saugeen ISLANDS, FISH AND WATER 409 the longer they were leased out and their fisheries and timber depleted, the lower their market value would become. This breach of fiduciaryobligatio n only highlights the blatant conflict of interest in allowing the Commis­ sioner of Crown Lands to be the same person as the Superintendent General. Fisheries Superintendent John McCuaig' s reports emphasize the future potential for expanding the provincial fisheries particularly along the coasts and islands of Lakes Ontario, Erie and St Clair and the Rivers Niagara and Detroit in his district. By the end of 1861, a total of 244 fishing leases had been issued and most fishing stations visited. Some of these licenses concerned the inland waters of the Bay of Qumte where the Mississagua of Alnwick claimed fishing rights and almost all of the islands, which had been dealt with under the 1857 Treaty. McCuaig reported persistent problems with illegal gill net fishing in this area and noted that the seine net fishers wanted it banned. As late as 1864, arrears payable on 3-year fishing licenses, which expired in January 1862, were outstanding. These included some in the Bay of Quinte.13 The result of all this on the ground was that First Nations were pushed into a vigorous and unpleasant competition with their neighbours and outsiders for access to their own lucrative fishery. The very man who was supposed to be championing their rights was at the same time disposing of these to others. While this gross parody was in progress at headquarters, at least one Indian Agent, W. R. Bartlett, was arguing that First Nations had always controlled these fisheries; that their Treaty rights had been breached; that the loss of the fisheries was causing financial hardship and prolonged hunger. First Nations were aware that their Aboriginal Rights

30 Aug 1864; v. 266:163,326-9, Points of Grievance Complained of at Sarnia "from nearly every tribe and band of Canada..." 14 Sep 1860; v. 573:287-296, esp. p. 291, No. 11, Translation of Indian complaints, 23 May 186. See v. 546:264, Bartlett to Joseph Jones, Interpreter at Cape Croker, 24 Mar 1862; v. 416:1108, John & James Assance to Bartlett, 9 Nov 1863; v. 547:541-2, Bartlett to William Spragge, DSGIA, Quebec, 22 Dec 1863; v. 428: 933-4, Spragge to Bartlett, 16 Jan 1 864; v. 549:201, Bartlett to Spragge, 19 Jan 1866, v. 544:282, Bartlett to J Sanson, Orillia, 18 Aug 1859; v. 545:29, Bartlett to Arch'd McCorquodale, Beaverton, 27 Mar 1860; p. 446, Bartlett to Samuel Wiley, Trenton, 23 Jul 1861; v. 419:828, Chief Joseph Jones, Cape Croker to Bartlett, 20 Mar 1862; see fishery leases in v. 252. 13 Report of the Commissioner of Crown Lands of Canada for the year 1861. Pnnted... 1862. n.p. Sessional Paper, Annual Report of the Superintendent of Fishenes for Upper Canada. Report of the Commissioner of Crown Lands of Canada for the year 1862. Printed...!863, n.p. 410 RHONDA TELFORD and Treaty Rights were being violated; that others sought to monopolize their fisheries; that others used their unceded or unsold land and islands to conduct this fishery; that revenues which rightly belonged in their own economy were falling to the Crown Land Department and non-Native fishers; that their fisheries were being destroyed by pollution and over­ fishing; that they were being squeezed and legislated out of their own lucrative commercial fishery; and that it was even a struggle to maintain their subsistence fishery.I4 For example, members of the Rama First Nation protested: We are very anxious to secure the renewed Licence for our old Fishing ground as soon as possible, as there is a man at the Bridge, whose name is Harris, who is taking a great many Herrings at the Narrows and selling them, and if he is allowed to go on much longer he will entirely mm the fishing for that kind offish, so that when the Indians want to fish there in February there will be nothing left by the small ones not worth catching. He tells the Indians that he has got a Licence from the Governments for which he pays $20.00 per year. If this be the case, we are treated very badly as we still hold the old Licence, and we have long applied to you to get our Licence renewed so that we are the first applicants, and have the best right.15 First Nations responded to these affronts in a variety of ways. Between 1857 and 1867, almost all sent petitions, letters and deputations to the Superintendent General. At least one grand council was held in which many Anishinabe Nations met and discussed fishing title and rights. The Mississagua of Alnwick pressed their claim to hundreds of islands in Lake Ontario, Bay of Quinte, the St Lawrence River and numerous lakes behind Kingston on Agent Bartlett and the Crown Land Department. The Lakes Huron and Simcoe Chippewa and Mississagua petitioned against the

4 See for example, NAC, RG 10, v. 433:452-462 (especially pp. 459-460), unidentified Native Person from Mitchagwatiwong, 23 May 1861- v 546-141-2' Bartlett to Walcott, 19 Dec 1861; v. 418:945-9, Gibbard to Bartlett, 17 March 1863! v. 547:161-2, Bartlett to Gibbard, 28 Feb 1863; v. 428:893-4, J James to Bartlett, 26 Dec 1863; V. 416:1107-8, Chiefs John & James Assance to Bartlett, 9 Nov 1863 also pp. 1035-7, Chief James Assance & others to Bartlett, 23 Feb 1863- v 549-542 lett t S Prag 8 e 2 C 1863; v 722;255 ?fin . =A , c /, n , o-?, „ - < ^port by William Spragge, DSGIA! 16 Dec 1865; v. 549:187-190, Bartlett to Spragge, 9 Jan 1866; v. 722:253-4, Report b.y ™am SPr.agge, 19 Dec 1865; v. 549:187-9, Bartlett to Spragge, 9 Jan 1866; v. n,g,Shkung t0 Bartktt 4 Dec 1866 7 R 3, 7,'-,C n ?0S ' ; 128-31, Nanigishkung to Bartlett, 28 Dec 1866. 15 NAC, RG 10, v. 425:125-7, 4 Dec 1866. ISLANDS, FISH AND WATER 411 fishery law and against the government's appropriation of many of the resources which they had retained for their Aboriginal economy: We were astonished when we heard from superintendent ...Bartlett that there was a law made to authorise a superintendent of fisheriest o rent our fishing grounds without our consent. We were told if we wished to reserve them for our own use we must apply to the superintendent and pay a rent or run the risk of being deprived of them. When we surren­ dered our lands to the Government we did not sign over all the game and the fish. Indians have always the privilege of hunting wherever they

The Cape Croker First Nation petitioned Queen Victoria about the unfair­ ness of the attempted appropriation of their fisheries declaring that: According to an old Treaty we have documents shewing that hunting of various kinds was never surrendered being the main of living with most of the Indians, but now the Canadian Parliament has passed an Act to encourage the forfeiture of the privilege of hunting and fishing, which the Indians used to [do], and was to enjoy for ever - ...l7 They went on to demand unilateral control and beneficial interest in their fishing, hunting and timbering enterprises. Frustration mounted as First Nations were denied access to fishing grounds for both domestic and commercial purposes. Anishinabe in Georgian Bay struck out and destroyed offending non-Native fishing equip­ ment. Members of the Cape Croker Nation were the firstt o act, cutting to pieces the reels and posts of the lessee at Rabbit Island. The following year, the Cape Croker and Colpoy's Bay Nations confiscated the fish and cut the nets of a neighbour in Colpoy's Bay.18 In one account, Fishery Overseer Gibbard noted that: a large white boat with a black or a dark red band rowed it 4 or 5 Cape Croker Indians in it, took 18 fish out of [Mr Horn's] net in front of his house, cut & tore his nets to pieces, and on Mr Horn getting into his boat

16 NAC, RG 10, v. 414:1012, Chief John Sunday, Jacob Storm, William Crow & Thomas Fraserto Bartlett, 14 Jan 1870. NAC, RG 10, v. 266:163303-9, "Explanatory memorial of General Indian Council April 17 1860 to the Queen, No. IV, Sub Enclosure in No. 2. Mrs Sutton's Memorial" 17 Apr 1860. 18 NAC, RG 10, v. 418:575-6, Gibbard to Bartlett, 3 Oct 1857. The Newash First Nation continued destroying white fishermen's nets and equipment, confiscated then- fish, and burned their buildings. See for example, v. 544:316-7, Bartlett to Penne­ father, 8 Oct 1859; v. 416:830-1, Joseph Jones, Cape Croker to Bartlett, 24 Oct 1859; v. 418:597-600, Gibbard to Bartlett, 23 Jan 1860; v. 416:1103-4, 6 Nov 1863; v. 428:932-4, Spragge to Bartlett, 16 Jan 1864. 412 RHONDA TELFORD

to stop them, they abused him and went a short distance off to the south side of white Cloud Island, lit a fire and cooked his fish - he had no help, and did not like to get his neighbors on a Sunday - The same party also did the same to Mr Black another lessee in Owens Sound Bay.'9 In 1863, parliament was supposed to pass new legislation for the better administration and protection of the fishery. This legislation did not mate­ rialize until 1865. The long delay was no doubt occasioned by Adam Watson's legal opinion on the fisheries, which had been commissioned by Commissioner of Crown Lands/Superintendent General William McDougall in the spring of 1863. In light of the Crown Land Department fishery leases, Watson' s opinion must have been deeply disturbing. Watson did not deal with Aboriginal Title and Rights to water or fish. Instead he argued that fishing was a public right in Lakes and navigable rivers "...and that neither the Crown nor any power or person can assert any special right in or exclusive use of highway or of fishery in such waters." Public rights could only be curtailed or restricted by act of Parliament. However, Watson went on to argue that the Crown could never grant exclusive fishing rights in water. The Crown could grant special fishing leases or licenses from crown land only "...but this I think means only that the Governor may grant exclusive rights to occupy the Crown Lands for fishing purposes...I don't think it authorizes the Crown to grant exclusive rights of fishing in the deep waters of the Lake to any extent it pleases."20 In this period of legislative adjustment, Agent Bartlett collected from each of the First Nations under his superintendency the location and extent of the exclusive fishing areas they wished to retain. Although he submitted this to the Indian Department at the beginning of 1866, more than a year passed before Commissioner of Crown Lands/Superintendent General Alexander Campbell forwarded the new fishing licenses to the First Nations.21 commissioned by Campbell. Among other factors leading to the request for this opinion, was a Report by William Spragge, the Deputy Superintendent General of Indian Affairs, which concluded in the wake of the Saugeen and Nawash surrender of their Fishing Islands (White Fish and nf d T' r° l?'n f44^0-1 > W- R- Bartlett, Indian Agent to Chiefs & Warriors of Cape Croker & Colpoys Bay, 10 Mar 1860. a le RG 10 428:932 4 323 ^l4^T T ' ' I' - > Spragge to Bartlett, 16 Jan 1864; v. 323.216143-6 legal opinion, Adam Watson, Solicitor General to Commissioner of Crown Lands/Supenntendent General of Indian Affairs, 11 March 1863. 21 NAC, RG 10, v. 549:443, Bartlett to Spragge, 2 Oct 1866. ISLANDS, FISH AND WATER 413

Burke), that these First Nations had a "beneficial interest in the lands ceded." Campbell (acting as Superintendent General) asked Spragge to have his Report reviewed by solicitor Hewitt Bernard along with papers that Campbell (acting as Commissioner of Crown Lands) had already ordered forward. Bernard was to determine whether First Nations had any right to the "rents and profits" related to the islands. No response from Bernard has been located. Instead on 8 March, Solicitor General James Cockburn gave an opinion, at the heart of which was Aboriginal fishing rights. Cockburn argued that Native People ...have no other or larger rights over the public waters of this Province than those which belong at Common Law to Her Majesty's subjects... Previous to the recent Statute...the Crown could not legally have granted an exclusive right of fishing on the Lakes and navigable waters, but under the 3rd section of that Act the power is conferred on the commissioner of Crown Lands of granting Licenses for fishing in favor of private persons wheresoever such fisheries are situated, [except when a prior legal right existed at law, such as under the French law before the conquest]...it certainly does not apply to the Indian tribes who have acquired no such rights by law, unless it may be contended that in any of the treaties or instruments for the cession of Indian territory there are clauses reserving the exclusive right of fishing,an d even in that case, if such should be the fact, I should say that without an Act of Parliament ratifying such reser­ vation, no exclusive right could thereby be gained by the Indians, as the Crown could not by any Treaty or act of its own (previous to the recent Statute) grant an exclusive privilege in favor of Individuals over public rights, such as this, in respect of which the Crown only holds as trustee for the general public.22

With regard to the issue of the "rents and profits" from the Fishing Islands, Cockburn stated that "...it would require further legislation to legalize the appropriation to the Indians of what would form part of the public funds of the Province. "Thus, Cockburn viewed as extra-legal any arrangements to share fishery profits with First Nations, even if they owned the islands and had never surrendered their fisho r water. Certainly his opinion was much more conducive to Crown appropriation of water and the fisheries than Watson's had been. Cockburn's opinion represented one branch of the settler government providing another with an iron clad rationalization for

22 NAC RG 10 v. 549:187-9, Bartlett to Spragge, 9 Jan 1866; v. 1002:94-96, Spragge to' Hewitt Bernard, 1 Feb 1866; also pp. 101-3, legal opinion, James Cockburn, Solicitor General, 8 March 1866. 414 RHONDA TELFORD its appropriation of the property and economy of the so-called colonized people. Both opinions failed to consider the issue of Aboriginal Title. With the confederation of Canada in July 1867, the Indian Department was transferred from (the now provincial) Crown Lands to the new (federal) Department of the Secretary of State. Under Section 91 (12) of the British North America Act, Canada was responsible for inland fisheries. Its new Department of Marine and Fisheries produced the first federal fishery legislation in 1868.23 Between 1867 and 1882, First Nations frequently petitioned and wrote to the Superintendent General demanding the return of their fishing grounds for their own exclusive use. They counselled their Indian Agents, that when they made their treaties they did not cede the water or the fish. For example, Chief Augustin of the Garden River First Nation on the north shore of Lake Huron argued that the water was the Aboriginal equivalent of the white man's 'storehouse'. As others before him, he resented Crown appropriation of the Anishinabe economy. Chief Augustin said: ...me and my people get our living by hunting in the woods The animals I consider are ours and we did not give up our right of hunting. The animals belong to us yet; I did not let them go.

Now this water. I never heard that my grand father ever sold the River and I did not. It was overlooked in the Treaty and neither white man or Indian spoke of it. When we want food we get it from the water. The Fish and the Water both belong to us yet. I never surrendered them. I let the white man have the dry land and not the water. The white man builds a big house and stores his provisions in it; He goes to it when he wants food and has only to turn the key and get it. The water is my storehouse, that is where I take my provisions from. As long as the world lasts, the water will still be their store house for the Indians. The absurdity of having to beg government for access to their own fishery, was not lost on the Snake Island First Nation residing on Georgma Island in Lake Simcoe. They petitioned William Plummer, a former Fish-

23 Statutes of Canada. Cap. XLII. An act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and ordnance lands. Assented to 22 May 1868. Cap. LX. An act for the regulation oj fishing and protection of fisheries.Assente d to 22 May 1868 ISLANDS, FISH AND WATER 415 ery Overseer and their current Indian Agent, who explained their position to the Minister of the Interior (also the Superintendent General): ...that they may be permitted to fish on their own fishing grounds, around Georgina Island, without being [asked] to pay for a License, at the rate of thirty five dollars per annum, which has been exacted by the local overseer for the past six years. I may remark that the Fishing... ground occupied by them is quite as usual Indian property as the Islands they now live on. and it cannot be used by any others than the Indians, as there would be no place for the fishermen to reside on to Land & cure their fish, dry their nets &c &c except on the Island owned by the Indians. ... It is well known that the Indian Department when making the [grand] Surrenders of their territories retained the Islands especially for the privileges of fishing, on what they have always regarded as their own property.25 Plummer was a rare and exceptional champion of Aboriginal fishing rights in 19th century, but he was not the only Indian Agent who could be relied upon to promote the Anishinabe position. Charles Skene was also unusual for his advocacy. On behalf of Parry Island and Shawnaga First Nations, among others under the Robinson Huron Treaty of 1850, he argued that the fishery law could not be reconciled with promises made in the Treaty. He added that ...some of the Indians spoke to me about the Fisheries at the Limestone Islands and other places being leased and that they were thus prevented from Fishing there - and that they had never ceded their right of Fishing - I asked them if they had ever stopped Fishing there - they said No They had not...26 By the mid-1870s a noticeable wave of Anishinabe protest erupted again as First Nations at Christian Island, Wikwemikong, Nawash and Saugeen in Lake Huron and Georgian Bay disrupted the non-Native fishery in their waters by lifting and/or destroying non-Native nets. Fish were taken out and kept, and in some cases, white fishermen were assaulted. These activities caused quite a panic in the Indian Department and were

25 NAC, RG 10, v. 557:700-1, William Plummer, Visiting Superintendent and Indian Agent to the Minister of the Interior, 10 Sep 1874. 26 NAC, RG 10, v. 1972, File 5530, n.p., Charles Skene, Visiting Superintendent and Commissioner to E. A. Meredith, Deputy of the Minister of the Interior, 23 Dec 1875. N.B.: After 1883, both Plummer and Skene were gone from the Indian Department. They were replaced by Agents having neither understanding of nor sympathy for Aboriginal fishing rights. 416 RHONDA TELFORD reported in the local press.27 For Example, it was reported to W. F. Whitcher the Fisheries Commissioner that: ...the Indians of the Christian Island lifted 5,000 lbs [of] nets belonging to William Shute, of this place, they took the nets to their village on the Christian Island when Shute went to lift his nets on the 10th he could not find them; he suspected the Indians for taking them, and went to their village next day; he then saw two of his nets put out to dry, he demanded his nets from them they told him they would not give them up as he had been fishing on grounds leased by them from Mr Plummer their Agent at Toronto, after some further conversation with the Indians their Treasurer told Shuter if he would come back next day and pay him one dollar for each net taken by them he would deliver the nets up to him. Shuter went back next day but the Treasurer was gone from home. Shuter then went to Penetangushine to see the Chief who was there, he gave Shuter a letter to some of the Indians on the Island telling them to give up the nets, on his, (Shuter's) paying the money; he only had part of the money with him, and they give him the nets, but kept the anchor lines for security until he aid the balance; the Indians kept the nets eight days; they still have the anchor lines as I told him not to give them any more money until I had received instructions from you.28 By the mid-1870s fishing descriptions and sketches made by the Indian Agents and in Departmental possession showed most of the coast line along the north shore, Manitoulin Island and Georgian Bay as locations claimed by the First Nations as their fishing grounds. Often where one water boundary ended, the next began.29 A similar situation would apply along most of the great lakes where there were Reserves and many of the interior lakes such as Simcoe, Rice, Scugog, to name a few. Indeed, most of south­ ern Ontario's major coastlines (which are generally fronted by thousands of islands) would have been taken up by continuous Aboriginal fisheries.30 It is not difficult to see why conflict with other users arose. In one of his

27 NAC, RG 10, v. 423:171 -187, multiple letters re Christian Island, various dates, 1875; also: pp. 236-9, 29 Dec 1875, 10 Jan 1876 and clipping "Indian Outrages"; v. 1972, n.p. W. F. Whitcher for Minister of Marine & Fisheries to G. B. Abrey, Fishery Overseer, Little Current. 28 ' NAC, RG 10, v. 423:174-5, [James Falton], Collingwood to W. F. Whitcher Commissioner of Fisheries, 23 Oct 1875. See NAC, RG 10, v. 1972, which contains several fishing sketches as well as a great deal of fishenescorrespondenc e for the 1870s and 1880s. 0 While it would be difficult to make any case for a continuous Aboriginal fishery on the north shore of Lake Erie, the Walpole Island First Nation and possibly others, including the newly recognized Caldwell First Nation, have an interest in the islands, fishan d parts of the water and lake bed. ISLANDS, FISH AND WATER 417 early fishery reports, McCuaig noted that already 5000 miles of coast were taken up in leases along Lakes Ontario, Erie and St Clair and the Detroit and Niagara Rivers alone. Between 1882 and 1900, Canada and its provinces were embroiled in a number of lengthy court battles and arbitrations over which level of government had the right to dispose of land and resources which had been retained by the Crown for the benefit of First Nations; over which level of government would be responsible for paying the costs and perpetual annuities under the treaties; and over a wide variety of Indian claims.31 Among the court cases was one about the disposal of inland fisheries in New Brunswick. The case was one of competing licenses, the colony having issued first in 1835 and the federal Minister of Marine & Fisheries secondly in 1874. The Supreme Court of New Brunswick found the federal license invalid. Robertson subsequently sued the Crown for the loss of fishing privileges and legal expenses. The Supreme Court of Canada decided that Canada had only regulatory rights and that fishing licenses could only be issued where an exclusive fishing right did not already exist by virtue of riparian right. The pre-confederation provinces were deemed to hold riparian rights in crown lands. Thus, Canada had no right to dispose of fisherieso n rivers.32 This decision allowed several provinces to contest federal control of fisheries. Yet, the decision did not make sense. The pre- confederation provinces could not hold riparian rights at confederation because they never obtained these by treaty prior to 1867 as required by the Royal Proclamation. Between 1885 and 1898, Ontario had passed fishing legislation, and regulations by order-m-council, also appointing its own fishery overseers. Mounting disputes between Canada and the provinces led the former to refer 17 questions relating, in part, to water, fish and harbours to the Supreme Court. That ruling was appealed to the Judicial Committee of the Privy Council, which admitted federal regulatory powers, while arguing that the provinces held proprietary rights to the fisheriesan d water under section 109 of the BNA Act. The convoluted exception to provincial

31 See Telford "The sound of the rustling of the gold", ch. 3. Much of the primary documentation for the disputes referred to can be found at the AO, in the Irving Papers. 32 Robertson v. The Queen. 1882 SCR v. 6. See also Irving Papers, MU 1529, 46/47/01-04 and MU 1530, 47/47/05-06. 418 RHONDA TELFORD ownership of water was that Canada owned the 'harbours.' After 1899, Canada yielded its regulatory role to the various provinces, so that fishery legislation in Ontario would be enacted by Ontario.33 Canada removed itself from the fishery altogether, thus breaching both its fiduciary obligations to First Nations and the spirit and intent of the treaties. In conclusion, it is clear that Crown appropriation of Aboriginal waters, fisheries and islands in Ontario was facilitated by the Departmental struc­ ture of the Canadas which emerged in 1860 at the transfer of government from imperial to provincial control. Commissioner of Crown Lands Philip Vankoughnet successfully captured the office of the Superintendent General. It was an unacceptable conflict of interest that the Commissioner of Crown Lands, who had traditionally coveted and irregularly disposed of unceded Aboriginal natural resources, should come to be the Superinten­ dent General: the collector and supposed protector of First Nations pro­ perty. The seven years prior to confederation were formative for the develop­ ment of fishery policy and legislation, which could have been crafted and revised to take into account the ancient, inherent Aboriginal and Treaty fishing rights of the First Nations. The unique opportunity to do this was present between 1860 and 1868 because of the multiple responsibilities of the Commissioner of Crown Lands and Superintendent General. But this opportunity was ignored. Indeed, the successive Commissioners of Crown Lands did nothing to ensure that Aboriginal and Treaty Rights were respected or fulfilled, instead sanctioning the dispossession of First Nation fisheries and allowing over-exploitation and pollution through the non- implementation of colonial and grasping legislation. The provincial appropriation of Aboriginal fisheries was advanced in 1898 when courts found in favor of provincial ownership and beneficial interest in water and fisheries without reference to Aboriginal Title or the oral traditions, usages and treaties of First Nations. Canada breached its fiduciary obligations to First Nations by acquiescing in this erroneous decision when it washed its hands of the fishery, handing over total control to the provinces.

AO, Irving Papers, see for example: MU 1529 and 1530. ISLANDS, FISH AND WATER 419

REFERENCES Archives of Ontario (AO). RG 1, Crown Land Records; . Irving Papers. MU 1529, 1530. Canada. 1856. Legislative Assembly Debates. . 1861. Reports of the Commissioner of Crown Lands of Canada. . 1862. Reports of the Commissioner of Crown Lands of Canada. . 1891. Indian treaties and surrenders. Ottawa: Brown Chamberlain. . 1985. Revised Statutes of Canada. Ottawa: Queen's Printer. . Statutes of Canada. Lytwyn, Victor. 1992. The usurpation of aboriginal fishing rights: a study of the Saugeen Nation's fishing islands in Lake Huron. Co-existence? studies in Ontario-First Nations relations ed. by Bruce W. Hodgins, Shawn Heard and John S Milloy (Peterborough: Frost Centre for Canadian Heritage and Development Studies, Trent University), 81-103. McCullough, Alan B. 1989. The commercial fishery of the Great Lakes. Ottawa: Canadian Parks Service, Environment Canada. National Archives of Canada (NAC). RG 10, Department of Indian Affairs records Ontario Ministry of Natural Resources (MNR), Crown Land Registry and Surveys Branch Robertson v. The Queen. 1882. Supreme Court Reports Vol. 6. Telford, Rhonda. 1996. "The sound of the rustling of the gold is under my feet where I stand; we have a rich country": a history of Aboriginal mineral resources in Ontario. Ph.D. dissertation, University of Toronto. . In press. The Anishinabe presentation of their fishing rights to the Duke of Newcastle and the Prince of Wales. Papers of the 30th Algonquian Conference ed. by David Pentland (Winnipeg: University of Manitoba). Thompson's mirror of parliament. Being a report of the debates in both houses of the Canadian legislature. No. 31, p.8, 3rd Sess. 6th Pari. 23 Apr 1860. . No. 32, p. 5, 24 Apr 1861.