Defining First Nation treaty rights is a slippery job

OPINION: Hunters and fishers launch lawsuit challenging a treaty covering a huge swath of northeastern Ontario, writes David Tabachnick
By David Tabachnick - Published on March 26, 2018
a person holding a freshly-caught pickerel
A 2016 agreement between First Nation and provincial authorities was supposed to determine fishing rules on Lake Nipissing. (iStock.com/Shidlovski)

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​NORTH BAY — In February, Prime Minister Justin Trudeau announced an initiative aimed at establishing a new nation-to-nation relationship between the federal government and Indigenous communities. The Recognition and Implementation Rights Framework represents an attempt to deal with outstanding issues including questions about fishing rights, land claims, and pipeline approvals.

The pledge is admirable, and the 2018 Canadian budget backed it up with billions of dollars’ worth of allocations. It is perhaps the most comprehensive commitment any government has made toward settling questions surrounding the economic rights of First Nations people. And yet there seems little recognition in the plan of the intractable complexity of Indigenous identity, a fundamental barrier to settling these issues.

Because Aboriginal rights are interpreted as collective rights in our constitution, it has been incredibly difficult to identify and work with the exact collective or group that these rights apply to (as I explained in my earlier article on the complications related to the settling of the massive Algonquin land claim). Because different Indigenous communities make overlapping claims, governments are hard pressed to settle any land claim or rights framework without alienating one claimant group or another. In part, this is why these negotiations go on for years — and often decades — with no end in sight. 

This problem is now on display in a new lawsuit filed on behalf of 40 Indigenous hunters and fishers in the North Bay area. The suit challenges the validity of the Robinson-Huron Treaty of 1850, which covers much of northeastern Ontario — including North Bay, Sault Ste. Marie, and Sudbury. In exchange for this land, the colonial Canadian government promised to pay the area’s First Nations a lump sum and an ongoing annual payment, as well as respect hunting and fishing rights.

The suit argues that these individuals were improperly charged for violating a 2016 commercial fishing law jointly established by the Ontario government and the Nipissing First Nation (NFN) because it infringes upon their traditional rights as Algonquin people and members of the vast Amikwa Nation.

In 2016, the NFN established a memorandum of understanding with the government of Ontario that allowed the Ministry of Natural Resources and Forestry to help enforce their fishing laws. The purpose of the agreement was to balance the viability of the commercial fishery with conservation efforts. This new relationship was designed to end years of disputes between the First Nation and tourist outfitters that both rely on the lake for their livelihoods. These 40 hunters and fishers didn’t adhere to this agreement and were charged accordingly.

Here’s where the complexity of Indigenous identity comes into it. The plaintiffs bringing this case forward argue the Robinson-Huron Treaty was signed by the Potawatomi people, an Indigenous group from what is today Wisconsin. Those behind the suit say their ancestors, the Algonquin (Amikwa) peoples, traditionally lived in the treaty area and truly had the rights to it — and the Potawatomi didn’t. Therefore, they argue, their ancestors were the proper title holders to the lands and waters in the huge swath of Ontario covered by the treaty, which derives its boundaries from Indigenous tradition (an account of the oral tradition is included in the statement of claim). In turn, the plaintiffs insist their people never surrendered any territory under the 168-year-old treaty. It follows that the hunters and fishers are not subject to its terms — nor the decisions made by the NFN, which has authority over part of northeastern Ontario because of the treaty.

The agreement reached by the Ontario government and the NFN, on the face of it, is the exactly the sort of “nation-to-nation” model Trudeau seeks to implement across the country, and it’s proving problematic in practice. Both the Nipissing First Nation and the Algonquin plaintiffs base their claims on Aboriginal treaty rights recognized and affirmed by the constitution — the exact same foundation upon which Trudeau’s new framework is to be built.

The difficulty is clear: because Aboriginal rights are collective rights, there is no obvious way for the government to pick who is in one agreement and who is out of another. Without recognizing this intractable and enduring problem, the best of intentions of the government will continue to go unrealized.

David Tabachnick is a professor of political science at Nipissing University in North Bay.

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