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Part 1: Common Intention

The goal of this thesis is to develop the concept of ‘narrative validity’ and apply it to the Robinson Treaties of 1850 through a close examination of the Stage One Judgement in the Restoule case. The Judgement involves both the Superior and Huron Robinson Treaties which are identical but for minor distinctions, thus we will be addressing both by implication.

Restoule Stage One Judgement

(I. Introduction)

The Restoule v. Canada judgement of 2018, before the Ontario Superior Court of Justice Hennessy, concerns a case to interpret the escalator or augmentation clause found in the Robinson Treaties of 1850. Justice Hennessy addresses the principles of treaty interpretation, the historical and cultural context of the treaties, and the positions taken by the case participants: the Lakes Superior and Huron Anishinaabe, and the Crown representatives for Canada and Ontario.

The goal of my review of this case is to look beyond its immediate consideration, the escalator or augmentation clause, in order to interpret the Robinson Treaties as a whole. My intention is to take the written judgement regarding the nature and validity of the augmentation promise in order to glean relevant implications for the validity of the Treaties’ promises overall.

Here is the primary structure of Justice Hennessy’s judgement:

1. the historical and culture context
   • the Anishinaabe of the upper Great Lakes
   • from the Royal Proclamation to the Vidal-Anderson Commission
   • the Mica Bay incident
2. the 1850 Treaty Council
   • the post-treaty historical record
3. the principles of treaty interpretation
   • common intention and reconciling interests
   • honour of the Crown and fiduciary duty

For our purposes, I will rearrange the order of treatment:

1. the principles of treaty interpretation
2. the historical and cultural context
3. the 1850 Treaty Council

We will first consider the principles of treaty interpretation in order to address what constitutes a valid treaty. We then explore the historical and cultural context that set the stage for the treaty negotiations to understand what brought the parties to participate in the negotiations. Finally, we will consider the negotiations themselves at the Treaty Council in 1850. In order to facilitate following the structure of the original judgement document, I have placed Justice Hennessy’s section headings in round brackets immediately following the major headings in this thesis.

Justice Hennessy summarizes the case before her noting the Robinson Treaties “provided for a land cession of a vast territory” on the part of the Anishinaabe and money payments (lump sums and perpetual annuities) on the part of the Crown. Increasing the annuities, which remained at $4 since 1875, is the subject of the litigation. [1]

The First Nation plaintiffs seek an interpretation of the annuities promise “according to the common intention that best reconciles the interests of the parties at the time”. Justice Hennessy indicates that such an interpretive task requires an appreciation of Anishinaabe and Euro-Canadian perspectives, their shared history and the honour of the Crown in its dealings with Indigenous peoples. [2]

Justice Hennessy finds that the Crown has a “mandatory and reviewable obligation” to increase the annuities when the economic circumstances warrant. Any Crown discretion is not unfettered, applies to the implementation process, and is subject to judicial review based upon fiduciary obligations flowing from the honour of the Crown to achieve the purpose of the Treaty promise.[3–4]

Again, we will be following her judgement in order to assess the validity of the terms and promises in the Robinson Treaties as a whole.

Justice Hennessy indicates that Anishinaabe and Euro-Canadian perspectives “came before the court on equal footing”.¹⁶ [12] Anishinaabe law and legal principles were presented as part of the “fact evidence” of the Indigenous perspective. She notes the court was not asked “to apply Anishinaabe law” but to allow it to inform the “common intention analysis”.[13] Nevertheless she says it is necessary to consult the historical and cultural record in order to properly interpret the Robinson Treaties.¹⁷[14]

I will draw out certain issues for consideration at this point.

A Vast Land Cession?

Despite the issue at trial being a financial consideration, augmenting the annuity, is it accurate and valid to characterize that financial consideration as primarily in exchange for a “land cession of a vast territory”? Is this an uncontested interpretation of the treaty?

Common Intention & Narrative Validity

At the heart of treaty interpretation is the notion of a valid agreement. As the Supreme Court of Canada (SCC) has indicated treaty interpretation requires finding the best interpretation to account for the common intention reconciling the interests being negotiated. The core consideration of my thesis is to question whether an intelligible and valid common intention, underlying the Treaties as a whole, can be discerned that effectively reconciles the interests being negotiated. In effect, ‘common intention’ provides the baseline for assessing the validity of a treaty. If no such common intention can be identified, then presumably there is no valid agreement and thus the purported treaty is invalid.

Historical & Cultural Context

The requirement that understanding the historical and cultural context is necessary in order to evaluate the common intention of a valid agreement, points in the direction of what I have called narrative validity. The foreground issues need to be elucidated as part of an intelligible narrative where foreground and background intersect in an intelligible and explanatory manner. At least, this will be the operating principle of this thesis.

Aboriginal Law

Justice Hennessy notes she was not asked to apply Anishinaabe law but to consider it as part of the fact-based evidence of the Anishinaabe perspective in the formation of the treaties common intention. We are compelled to ask, when considering the Treaties as a whole, how might the adjudication process differ if Anishinaabe law had been applied to the proceedings? If Anishinaabe law is requisite to understanding the Anishinaabe perspective, and if that perspective “came before the court on equal footing” with the Euro-Canadian perspective, are there crucial junctures where that “equal footing” is no longer in fact equal? And how might the Treaties and treaty interpretation be different if it was?

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The Principles of Treaty Interpretation

(VIII. Principles of Treaty Interpretation)

The Primary Principle

As the Supreme Court of Canada states, the purpose of historic treaties, such as the Robinson Treaties, is to reconcile the pre-existence of Indigenous societies with the assertion of Crown sovereignty.²³⁴ Therefore, treaties must be interpreted in a way that achieves the purpose of the treaty, gives effect to the interpretation of the parties’ common intention that best reconciles the interests of both parties at the time the treaty was made, and that promotes the treaty’s reconciliatory function.²³⁵ [322]

Justice Hennessy’s reference to this SCC direction regarding the purpose of treaties provides us with a useful starting point for evaluating the validity of a treaty. A valid treaty, as a valid agreement, must be animated by a “common intention” and in doing so validly reconcile the interests at the time. Conversely, one could presumably argue if no such common intention can be reasonably discerned as animating the outcome of the treaty negotiations, then the treaty outcome is not a valid legal outcome.

Nine Keys of Treaty Interpretation

Justice Hennessy notes the principles of treaty interpretation which guide her judgement are drawn from Marshall.²³⁶ She summarizes nine key points, we will briefly consider each.[324–325]

1. Aboriginal treaties are a unique type of agreement attracting special principles of interpretation.

This would suggest that such unique and special aspects need to be the focus of any assessment of the validity of a treaty.

1. Treaties are to be liberally construed, with ambiguities resolved in favour of Aboriginal signatories.

If ambiguities need to be resolved in favour of Aboriginal interests this must be a requirement for the Aboriginal consent necessary for a valid agreement. If ambiguities are not resolved in favour of Aboriginal interests presumably this directly affects the validity of a treaty, or at least the validity of the items to which the ambiguities apply?

1. The goal of treaty interpretation is to choose the common intention which best reconciles the parties interests at the time of signing from among those possible.

Here again we find the general purpose of treaties, to forge a common intention constitutive of the agreement that reconciles the participating parties’ interests. Therefore a valid treaty must have a valid common intention that validly reconciles the parties interests. This, in effect, is our working definition of a valid treaty.

1. The integrity and honour of the Crown is presumed in finding the common intention of the parties.

This would appear to indicate that the Crown can not engage in ‘sharp dealing’, misrepresentation, dishonesty, etc., in the formation of the common intention which grounds the treaty. A valid treaty must be an honest agreement with transparent and informed consent on both sides regarding the treaty’s terms and expected outcomes. Absent that, the treaty is absent a valid common intention, and therefore the treaty is invalid.

1. Court must be sensitive to cultural and linguistic differences.

This would appear to acknowledge the societal gap at the treaty negotiations between different societies, cultures and systems of governance. How does this societal gap affect the interpretation of the validity of a treaty and of the underlying requirement for a discernible common intention? How deep into the ground of a valid treaty and valid common intention do such fundamental differences run? Did the Robinson Treaties sufficiently reconcile such cultural differences to form a valid common intention?

1. Treaty words are to be given the natural sense at the time, with
2. technical or contractual interpretations to be avoided, and
3. the court should not alter treaty terms given what is possible or realistic on the language.

I’ve combined these related considerations regarding language. They appear to flow from the recognition of cultural and linguistic differences noted above. What are ‘treaty words’? Are they the words written, spoken or both? If we are to avoid “technical or contractual interpretations”, what are the consequences if words of that kind are found in the treaty text? Are any ambiguities that flow from technical language to be resolved through an interpretation that favours the Aboriginal interest? And if the treaty’s interpreted outcomes did not in fact favour the Aboriginal interest, then a false presumption, based upon technical language, that it did would render a presumptive common intention invalid and therefy invalidate the treaty.

1. Aboriginal treaty rights should not be interpreted in a static or rigid way, as frozen in time, but must be updated for modern practices reasonably incidental to the core treaty right in its modern context.

How are past, present and future implicated in the ground of validity of a treaty? Must each side at trial, in effect renew a treaty in the “modern context”, continuing to perceive and maintain a common intention regarding interests in order for a treaty to maintain its validity? In other words, must a valid treaty be validly renewed to remain valid? Or can a valid treaty be later violated, possibly making the treaty itself retroactively invalid, because a treaty is not a singular closed transaction but an ongoing process of valid regular renewals?

Key Dilemmas of Treaty Interpretation

Justice Hennessy is aware of the dilemmas.

Ascertaining intentions is difficult given different worldviews. Anishinaabe culture, traditions, and legal orders sought to maintain relationships, between themselves, with others, and with the land. The Euro-Canadians, while dealing honourably with Indigenous peoples, subscribed to the Imperial Government’s vision of their right to expand the British Empire. [326]

Here we have a statement of the crux of the dilemma regarding common intention at the Robinson Treaty negotiations. The Anishinaabe legal order sought to “maintain relationships” whereas the Government side of the negotiations was pursuing its perceived “right to expand” the imperial legal order. How are such competing interests going to form a ‘common intention’. One side seeks to maintain relationships (between legal equals), the other side seeks to fundamentally transform them (into colonial subjects). How are such fundamentally opposed interests to be reconciled without violating the valid formation of a common intention?

Again, Justice Hennessy appreciates the dilemma. She notes there are no Anishinaabe written records of the negotiations and that the treaties reflect Euro-Canadian language and linguistic practices. Expert witnesses testified certain words and concepts could not be translated into Anishinaabemowin. Thus Hennessy concludes the treaty language and records probably do not reflect each party’s understanding,²³⁸ especially given that the Anishinaabe speeches at the Treaty Council have been lost.

If we are reliant on one side of the negotiations for what went on at the negotiation, are we not that much more reliant on widening the historical and cultural context to construct the Anishinaabe interest underlying the purported common intention of the 1850 treaties. In other words, we need to remain alert to the real possibility that the written treaty document represents a prejudiced view of the agreement. Our goal in this thesis is to see if ambiguities and prejudices are operative in the standard interpretation of the Robinson Treaties’ common intention.

Steps One & Two of Treaty Interpretation

Hennessy follows the 2-step approach to treaty interpretation set out in Marshall. Step One addresses any patent ambiguities in the treaty text due to linguistic and cultural differences.²³⁹ Hennessy notes that with or without ambiguity, evidence of historical and cultural context is required.²⁴⁰ Step Two is to consider the possible meanings of the text against the background of the treaty’s historical and cultural context.²⁴¹ In the immediate context of the Robinson treaties, that would include mining activity and Anishinaabe demands for a share of it. Furthermore, Hennessy notes “that treaties, as written documents, recorded agreements that had already been reached orally and did not necessarily record the full extent of those oral agreements”.²⁴² Thus she reiterates that the court relies upon contextual evidence in “ascertaining the full extent of the agreement between the parties”. [327–330]

Narrative Validity & Treaty Texts

What Hennessy calls contextual evidence regarding intention and agreement, I will characterize as ‘narrative validity’. The contextual construction of intentions is essentially a task of constructing a believable narrative. Thus, in order to assess the validity of claims concerning common intention and underlying animating interests, we must construct a coherent and believable narrative about those intentions and interests. In the context of the societal gap producing the treaty texts of 1850, we must cast a wider contextual net to assess the potential misunderstandings and ambiguities found in the textual document. In fact, by starting with Step One, reading the Treaty text for ambiguities, we may be already prejudicing somewhat the outcome of the analysis by allowing the text to define the issues.

Step Three of Treaty Interpretation

Justice Hennessy calls for a Step Three where the court, relying upon the historical context, determines which interpretation most closely reflects the original parties’ common intention and best reconciles the parties’ interests.²⁴³ If rights are intended to be multi-generational, the historical context may assist in determining the modern counterpart.²⁴⁴ I would argue that again we are drawn into a consideration of narrative validity to assess durable intentions across generations. [331–334]

It is precisely the role of narrative validity to evaluate the intelligibility and believability of a story. To that I will add a third requirement, livability, which addresses the issue of active and willing renewal. Along with intelligibility and believabiity, a community lives within a story, and thus renewal involves the collective task of renewal, the willingness to live within the temporal dimensions of past, present and future that a story lays out. In Anishinaabe culture this is provided for by ceremony, symbols & story telling traditions.

Hennessy concludes that the central purpose of the Robinson Treaties was “to renew a relationship on which this country was founded”. If so, we need to ask, what was the original founding relationship that the treaties sought to renew. To answer that question, we must construct a coherent and valid narrative on the relevant matters. Can we construct an intelligible and believable narrative about a founding relationship being renewed at the Robinson treaty negotiations? Or is it a more intelligible and believable narrative to tell the story of the Robinson Treaties as attempting to fundamentally transform if not break or violate that founding relationship? And if the latter is more believable, must we also conclude that the Robinson Treaties are not valid because they lack a valid common intention?

What is Purposive Interpretation?

A purposive interpretation of a treaty provision, obliges the court to keep in mind the purpose of the treaty provision, the purpose of the treaty as a whole, as well as, the purpose of all treaties between the Crown and Indigenous peoples. The latter is the reconciliation of the pre-existence of Indigenous sovereignty with assumed Crown sovereignty.²⁴⁷

This brings us to the heart of our story. The purpose of all treaties according to the SCC, constitutionally grounded in s. 35, is to reconcile sovereignties, pre-existing Indigenous sovereignty and “assumed” Crown sovereignty. Regarding the augmentation clause, Justice Hennessy indicates the purpose was to bridge the gap between the parties’ expectations. For our concern, purposive interpretation draws us deeper into the question of how these sovereignties are related over the narrative period from the arrival of the newcomers, through their founding events, through the Robinson treaty negotiations. Is there an intelligible and valid narrative regarding a valid common intention which runs through the parties distinct interests through these episodes, and which purportedly finds renewal in the Robinson Treaties of 1850? Or will the historical and cultural analysis reveal that the Robinson Treaties harbour fundamentally unresolved and unreconciled interests and intentions which threaten the validity of the Robinson Treaties themselves? [335–339]

Purpose of the Augmentation Clause

Regarding the augmentation clause, Hennessy suggests the Crown sought a land cession, covering mineral and lumbering resources, that would not carry a heavy financial liability for the Crown in providing compensation for the Anishinaabe.

The purpose of the augmentation clause was to bridge the gap between the expectations of the parties. The Crown sought a cession of vast territory in northern Ontario, with mineral and lumbering resources, while limiting their current financial liability to a compensation amount that would have been unacceptable to the Anishinaabe. [338]

This is Justice Hennessy’s interpretation of the purpose of the augmentation clause as forming a valid common intention at the time. The Crown’s interest is described as seeking a vast territorial cession, with natural resources, and limited financial liability. Justice Hennessy then describes the Anishinaabe expectation.

The Anishinaabe sought full respect for their pre-existing sovereignty over the territory and compensation that reflected the value of the land.

Hennessy sees the augmentation clause as the provision that would bridge this gap in expectations by providing a future-oriented form of compensation. She says, “a purposive approach respects the authority and autonomy of the parties to the treaty.”

Purpose of the Robinson Treaties

If we consider the purpose of the treaty as a whole, and not simply that of the augmentation clause, has the historical context of the treaty truly respected the “authority and autonomy” of the sovereignties negotiating the agreement? The presumption in Justice Hennessy’s interpretation is that the gap between expectations could be satisfied, that is, form a valid common intention, through an appropriate financial compensation. But did the augmentation clause truly close the gap of interests and intentions?

Looking forward, there will be two interpretations we will be considering for the purpose of the Robinson Treaties. First, that the Government sought to legitimize existing mining locations for which permits had been ‘illegally’ provided and also to provide for future locations which were not expected to be numerous. Second, the Government sought full and exclusive sovereign control over all Anishinaabe territories north of the Lakes Superior and Huron, such that any activity, economic or settlement, would be governed under that exclusive sovereignty of Crown rule while subject to a limited and flexible financial burden of compensation.

The question is, are the Robinson Treaties clear on this distinction. And is the Anishinaabe interest and intention clearly represented in the result?

Let’s review the main terms being negotiated.

The Crown expectations included:

• a vast land cession
• access to mineral and timber resources
• limited financial liability

Anishinaabe expectations included:

• full respect of their pre-existing territorial sovereignty
• compensation based upon present and future land values

The trial focuses upon the financial provisions of the treaty text and sees the treaty as a land purchase of some kind incorporating the augmentation clause. But what is being purchased, the fully respected pre-existing territorial sovereignty of Anishinaabe peoples? This would imply a fundamental transformation in the Anishinaabe form of governance.

Or was the Government simply purchasing access to minerals and timber? In other words, rather than purchasing sovereignty, they were simply purchasing permits and licenses for accessing resources.

Unstated here, because not directly related to the augmentation clause, is the question of reserves. How do reserves feature in the treaty? Along with access to resources, the Government also sought legal authority for possible future settlements even though none were anticipated. How do reserves and settlements feature in the Robinson Treaties?

This is the last treaty the Crown will negotiate with the northern Great Lakes Anishinaabe covered by the Robinson Treaties. The Crown will go on to further define the relationship unilaterally in S91.24 1867 claiming legislative authority over ‘Indians and lands reserved for Indians’ and, subsequent to that, in the unilateral legislative provisions of the Indian Act. Such developments would suggest an interpretation that goes beyond simply a British Imperial Government purchasing mining and lumbering permits within a particular Indigenous territory through negotiations with an autonomous Indigenous sovereignty. Is this what the Anishinaabe intended? Is this what the idea of a reserve meant to the Anishinaabe in 1850, unfettered Crown governance through unilateral legislative actions burdened only by limited financial liabilities?

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Positions of the Parties on Common Intention

(IX. The Positions of the Parties and the Issue in Dispute)

The primary dispute Justice Hennessy is considering concerns the annuity augmentation clause, in describing its role in the Treaties she summarizes the Robinson Treaties as a whole. [340–350]

The augmentation clause is found within the compensation provision, one of four basic elements of the Robinson Treaties: (i) a release or cession of the Anishinaabe interest in the lands north of Lake Superior and Lake Huron; (ii) an assurance that the Anishinaabe maintained the rights of wildlife harvesting and the ways of life associated with them; (iii) the establishment of reserves; and (iv) compensation, a combination of a lump sum payment together with a perpetual annuity.

So Justice Hennessy sees the following terms being negotiated in the Robinson Treaties:

1. Release or cession of the Anishinaabe interest in certain lands
2. Maintenance of Anishinaabe rights of harvesting and “ways of life”
3. Establishment of reserves
4. Compensation (lump sum and perpetual annuities)

How are we to understand each of these basic elements and how they interconnect from the point of view of a valid common intention? What is the nature of the land release or cession? What Anishinaabe interest is being addressed? What are the implications of the assurances regarding wildlife harvesting and, especially, the associated “ways of life”? How do reserves relate to the other provisions? For what is the compensation precisely compensating? Notice that there is no mention of fundamental transformations in structures of governance or ways of life.

The key question for us is, do these four considerations form themselves into a valid overall common intention as a reasonable interpretation of the Robinson Treaties?

Huron Plaintiff’s Position

The Huron Plaintiffs argue that common intention is built upon a shared history and shared images, and a nation-to-nation relationship of autonomous parties. The Huron Plaintiffs argue that nothing in the treaty text, Anishinaabe law or the evidence, indicates that Anishinaabe autonomy, jurisdiction, or the “pre-existing web of relationships with creation were intended to be extinguished”, rather they sought to renew the Covenant Chain alliance. [352–364]

Thus the Huron Plaintiffs argue that “the Anishinaabe’s pre-existing rights to hunt, to harvest, to use and maintain connection to the land, and to enjoy exclusive use and control of land surrounding village sites and common council fires were reserved”. Overall the Huron position on common intention is about an agreement to share in which the pre-existing Anishinaabe relationships and authority would continue and not be extinguished.

Is this view compatible with the Crown’s view of common intention?

Justice Hennessy summarizes the Huron position regarding common intention in the Robinson Treaties as renewing a long-standing relationship through mutually beneficial sharing and not by creating an unfettered Crown discretion.

Is the principle of unfettered Crown discretion incompatible with renewing an existing sharing relationship? Would sharing versus unfettered discretion indicate unreconciled interests, and thus point to an invalid common intention underlying an invalid Treaty document?

Superior Plaintiff’s Position

The Superior Plaintiffs see the Crown as having an interest in settlement and development, while trying to limit its financial liability, which the Plaintiffs argue is compatible with the Anishinaabe interest in receiving assistance in developing the land and securing a share of their territories wealth “as they always had — by their absolute dominion and control over the economic activity taking place within their territory” in a manner consistent with Anishinaabe law. They invoked “Chief Shingwaukonse’s vision of a prosperous Anishinaabe nation within the Euro-Canadian nation state”. [365–367]

Kinship: where the Great Mother will be generous and ensure that the Anishinaabe thrive; and; Reciprocity: where the value of the gift received is commensurate with the value of what was given away. [370–372]

Again, nothing of this is found in the language of Robinson’s Treaty text. The Superior Plaintiffs view of the common intention as one where the Anishinaabe retain “absolute dominion and control” would seem to be directly at odds with the notion of a surrender of sovereignty at the 1850 treaty negotiations? What relationship between the Anishinaabe nation and the Euro-Canadian nation state, would make sense as a common intention in 1850? What form of sovereignty is being envisaged between nations that recognizes the ongoing relationship as involving reciprocity and commensurate gift exchange?

Canada’s Position

Canada’s view of the common intention was the shared norm of the Sovereign. “[T]he Sovereign was the symbol and embodiment of positive values such as honour, graciousness, liberality, and justness”. Did this norm contain the notion of an absolute and exclusive Sovereignty? How were the Anishinaabe supposed to relate to the Sovereign, pre-Treaty and post-Treaty? [377–383]

Justice Hennessy says Canada accepts the obligation of $4 per person, but claims that the Crown has full discretion beyond that limit, although “its decisions must reflect the value of the ceded interest by taking into account net territorial resource revenues”. Canda also accepts that the Crown’s conduct is subject to judicial review based upon the honour of the Crown.[386]

Ontario’s Position

Overall Ontario acknowledges the Crown has an obligation to pay $4 per person with unfettered discretion above that limit. [390–391]

Common Intention of the Treaties

From the point of view of the validity of the treaties as a whole, we will address such key ideas as unfettered Crown discretion, the link between the ceded interest and financial compensation, the Sovereign as a shared symbol, and Anishinaabe values of respect, responsibility, reciprocity and renewal.

We need to ask some specific questions regarding the key terms of the Treaties. What was the common intention regarding land “cessions”, regarding harvesting and the Anishinaabe way of life, regarding reserves and governance, and regarding financial compensation?

Perhaps the most remarkable feature about the Robinson Treaties, as Justice Hennessy has noted in comparison to more modern agreements, is the absence of detail regarding these concerns. The text in the document shows in many ways the effects of the fact that Robinson simply jotted down the basic ideas on a piece of paper one evening and called it a treaty. [392–394]

Clearly the Huron and Superior Plaintiffs currently at trial do not see unilateral and exclusive Crown sovereignty as the embodiment of the Robinson Treaties’ common intention. Did the Anishinaabe intention and interest in 1850 embrace such an idea?

The Crown’s interpretation sees the land cession as providing for the extinguishment of Anishinaabe sovereignty. The Treaty Council in 1850 took place at the Anishinaabe council fires, at sites of Anishinaabe governance. Was the goal of those 1850 council fires to extinguish all future Anishinaabe council fires and the autonomous governance they represented? There is no mention of council fires in Robinson’s Treaty text.

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Finding the Common Intention

(X. Finding the Common Intention that Best Reconciles the Parties’ Interests)

The task Hennessy undertakes is, using the principles of treaty interpretation set out in Marshall, to ascertain the common intention of the parties, concerning the augmentation clause, which begins with the premise that both parties sought to advance their peoples’ interest through agreement.²⁵² [395–397]

Justice Hennessy finds, regarding the augmentation clause, that the common intention that best reconciles the parties’ interests is that they did not intend to fix a cap on the collective annuity. Of course, our concern is not only simply the augmentation clause but the Treaties as a whole.

Step One: Presence of Patent Textual Ambiguities

Regarding textual ambiguities Justice Hennessy notes the lack of legal detail. Even though Hennessy noted the principles of treaty interpretation call for avoiding legal and technical language, as well as acknowledging linguistic and cultural differences, nevertheless, following Marshall, Justice Hennessy begins with the legal connotations of the English text and addresses the ambiguities found there. [398–410]

How will this lack of legal detail affect the interpretation of the validity of the treaty as a whole? Will it make it even more necessary to consult the historical and cultural context to allow us to fill in the relevant interests and intentions?

Step Two: The Historical and Cultural Context

Justice Hennessy indicates that treaty analysis of the Robinson treaties must consider the following historical and cultural context: i) the Anishinaabe perspective, ii) the Crown perspective, iii) the historical records, iv) issues of document interpretation, and v) the honour of the Crown. [411]

Anishinaabe Perspective

The Anishinaabe sought a treaty consistent with the long-term relationship with the Crown characterized by the Anishinaabe principles of respect, reciprocity, responsibility, and renewal, and grounded in the Covenant Chain alliance. Treaties were sacred agreements that brought newcomers into the existing relationships the Anishinaabe had with all of creation. [412–423]

a. Respect: The Anishinaabe sought respect for their territorial jurisdiction, for their autonomy and for their concepts of governance.

b. Responsibility: The Anishinaabe had responsibility, connected to interdependence, for their bands, clans, kin, and the land, including the animals, flora, fauna, and non-human beings with whom the Anishinaabe shared the territory.

c. Reciprocity: In the context of gift-giving, reciprocity involves commensurate exchanges that maintain relationships. ²⁵⁶

d. Renewal: Both parties recognized the treaty represented an ongoing relationship requiring regular renewals since the time of Sir William Johnson and Covenant Chain diplomacy.

The key values of respect, responsibility, renewal, and reciprocity become crucial to assessing the validity of the common intention through treaty negotiations from the Anishinaabe perspective. If Anishinaabe autonomy is undermined, if interconnected responsibility is violated, if the exchange is not commensurate, or if the relationship is not adequately renewed, then the Anishinaabe interest and intention is arguably not reconciled in the Treaties’ purported common intention.

Did the Crown perspective in fact find common ground with these Anishinaabe intentions? Was financial compensation going to be able to close the gap created by the distance between the parties expectations, as Justice Hennessy’s finding, regarding the augmentation clause, would indicate?

Crown Perspective

The Crown perspective, Justice Hennessy notes, is recorded in documents since the Royal Proclamation 1763, revealing the Imperial policy of creating a British colony.²⁶¹ [424–429]

Following the Royal Proclamation, the Robinson Treaties claim the Crown seeks to engage in “just and reasonable…” conduct.²⁶² Justince Hennessy also remarked, of the Royal Proclamation, ”Other than the unexplained assertion of dominion, the approach was one of respect and alliance."

I would argue, “the unexplained assertion of dominion” in the Proclamation will haunt the Robinson Treaty proceedings. Will the Robinson Treaties clarify, resolve or reconcile what was left “unexplained” in the Proclamation?

Robinson’s instructions recognized Anishinaabe title to the land, resources and “unceded Forests” and that a treaty representing the "full consent of the Anishinaabe” was necessary for the newcomers to fully access the wealth and future opportunities of the territory. Robinson’s objective, Justice Hennessy indicates, was to legitimize the Crown’s settlement and development of Anishinaabe territory in a liberal and just manner.

In 1850 the Crown was facing pressures from the Anishinaabe, the mining sector and its own dire financial situation. Anishinaabe leaders complained about disruptive mining activities and demanded their rights be respected. Mining interests equally sought resolution which would legitimize their activities. The Government sought a peaceful continuation of settlement and development but without incurring a large debt for the right to access the “vast but sterile” territory, thus Robinson tied the annuities to future proceeds departing from the established fixed annuity model. [430–458]

So the question is what common intention would reconcile these interests, simply legitimizing individual mining permits or a complete and full transfer of sovereignty? What was the common intention?

Robinson’s diary and report contain numerous references to Anishinaabe satisfaction. However, Justice Hennessy raises doubts given there is so little agreement amongst the lawyers before her court, all fluent English speakers and educated in the common law. As non-fluent in English and non-fluent in common law, what was the understanding of common intention of the Anishinaabe in 1850?

There is no record of Robinson explaining many of the terms of the treaties and Justice Hennessy acknowledges the difficulty interpreting legal terms to lay people, never mind parties of a different language and culture. Court interpreters and fluent elders prepared treaty translations and indicated words like title, cede, and surrender had no translation in Anishinaabemowin.²⁶³ There was no concept of alienation of land. There is no way to translate “as Her Majesty may be graciously pleased to order.” In which case, what did the Anishinaabe participants actually understand regarding the legal text of the treaty in 1850?

Again Justice Hennessy is fully aware of the dilemma.

The Robinson Treaties use formal English and legal terminology. I am not at all convinced that the presence of interpreters could or should have given Robinson confidence that the Chiefs understood the concepts of discretion, royal prerogative, or Her Majesty’s graciousness, if such concepts had been embedded into the Treaties. And, therefore, such concepts could not have informed the common intention of the parties. [447]

These considerations by Justice Hennessy are crucial for our interpretation. Justice Hennessy is clearly saying that such concepts as “discretion, royal prerogative, or Her Majesty’s graciousness” could not have “informed the common intention of the parties”. We might in turn ask, to what extent are such concepts crucial to the interpreted outcome of the Robinson Treaties?

According to Justice Hennessy, Robinson inserted the augmentation clause to overcome resistance to an agreement.

The Plaintiffs argue that the £1 amount in the treaty text should be seen as a “placeholder” for future specification, as in other treaties. Justice Hennessy accepts that “this has a certain logic”.

This raises an interesting consideration. Are there any other ‘placeholder’ concepts operating in the Treaty document. Are Robinson’s phrases, like ‘cede, surrender and convey’ or ‘all right, title, and interest’, just legal phrases which he largely cut and pasted as placeholders for concepts like sovereignty but which Robinson chose not to elaborate on in the text or in the oral discussions. Such legal and policy ‘placeholders’ would beg the question, what was the Anishinaabe understanding of such ‘placeholders’?

Justice Hennessy describes Robinson’s goals as needing to satisfy Anishinaabe expectations, limit Crown financial exposure and adhere to the Colborne Policy. The Colborne Policy was to civilize the ‘Indians’ through assimilation to sedentary agricultural settlement. Are the treaty provisions regarding reserves similarly ‘placeholders’ in the Robinson Treaty standing in for unelaborated Government ‘civilization’ policies? If so, was this ‘civilization’ policy embraced as a common intention by the Anishinaabe?

Step Three: Choosing the Common Intention that Best Reconciles Intentions

Justice Hennessy then develops the interpretation she says best reconciles the parties “common interests”. Regarding the augmentation clause, which is again the object of litigation, the parties did not intend a cap on the annuities, rather the Crown promised to increase the collective annuities without limit based upon territorial revenues without loss to the Government. [459–475]

This interpretation holds the parties in a relationship, looking toward the future together, the common intention as the historical and cultural context demonstrates.

The “if and when” sharing model, Justice Hennessy says, satisfied the common interest, insofar as augmentation was “always central to the intent of both the Anishinaabe and the Crown”.

From pre-Treaty petitions, to Vidal-Anderson recommendations, the Anishinaabe perspective of sharing territory with other nations and the newcomers was central. The if and when approach allowed for an uncertain future.

Justice Hennessy finds that the “revenue sharing model was consistent with the Anishinaabe perspective” and despite being new for the Crown, reflected the Crown interest “to access land and resource while limiting their liability and dealing honourably with the Anishinaabe”.

The sharing model was consistent with renewal, responsibility, and reciprocity.

But is the “sharing model” consistent with the Crown’s interpretation of the land cession and the sovereignty implications of the Robinson Treaties? Justice Hennessy continues.

The Treaty Council underscored the long-standing relationship and that the Anishinaabe dealt with the Crown as kin. The Crown relied upon the Covenant Chain alliance as the basis of negotiations.

Justice Hennessy sees the augmentation clause as “an inducement to overcome Anishinaabe resistance within the duties of the honour of the Crown flowing from the Royal Proclamation”. She notes that Robinson was a tough negotiator, sidelining the lawyer Macdonell whom the Anishinaabe preferred as their legal representative and negotiator, as Robinson divided the First Nation delegations with a ‘take it or leave it’ proposal for the Hurons after the Superior delegation accepted his proposal. Justice Hennessy concludes, “Robinson found the point of agreement”.

Justice Hennessy says the augmentation clause met the goals of the Crown who sought to gain access to land with flexible liability, through an honourable arrangement with Governor General Elgin’s approval, that would increase the annuities if net territorial revenues allowed.

Justice Hennessy offers the following caveat, “…assuming he did not engage in ’sharp dealing’…”

I will argue it remains unclear how the augmentation clause finds the point of agreement regarding sovereignty and land cession. The augmentation clause is understood as open-ended, forward-looking, and risk sharing in relation to future revenues from the land. In other words the relation between land and compensation, from the compensation side, remains limited and flexible. However, the land surrernder and sovereignty provisions do not appear to be limited and flexible at all. They appear to be a complete and full transfer of sovereignty, regarding land and governance, from the Anishinaabe to the Crown. How is this respecting Anishinaabe autonomy, Anishinaabe responsibility towards their relationships, a reciprocal and commensurate form of gifting, or affording the need for renewal? The Crown’s post-Treaty position appears to be there is nothing to be renewed because the transfer of sovereignty is whole and complete. Is this what the Anishinaabe were agreeing to?

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Four Major Provisions

According to Justice Hennessy the Robinson Treaties provide for four major provisions.

• a land cession
• protecting harvesting and ways of life
• reserves
• financial compensation

What is the valid common intention associated with each of these major provisions? How do they interrelate? And do they do so in the form of a valid common intention?

In order to pursue such questions regarding the four major provisions, I will attempt to follow Justice Hennessy’s three steps: 1) textual ambiguities, 2) historical and cultural context, and 3) the common intention that best reconciles intentions and interests.

Land Cession

Here is the main statement of the land surrender, referring to the “chiefs and principal men of the Ojibewa Indians inhabiting” the territories described.

…[They] do freely, fully and voluntarily surrender, cede, grant and convey unto Her Majesty, Her heirs and successors forever, all their right, title and interest in the whole of the territory above described, save and except the reservations set forth…

The first observation is that this sounds like technical, legal language. What would “surrender, cede, grant and convey…all their right, title and interest” mean in Anishinaabemowin? How was it translated? As was noted at trial, some words have no translation: title, cede, surrender. As we also noted, the SCC indicates that regarding treaty interpretation, ambiguities of language must be interpreted to favour the Anishinaabe interest. The requirement is presumably necessary to enable the formation of a common intention. Clearly there must be ambiguity here regarding the Anishinaabe understanding of such technical legal language. What would be the interpretation that favours the Anishinaabe interest and intention?

Did the Anishinaabe interest assume a surrender of their title to the land and their right to be self-governing? Was this the common intention forged at the negotiations? There is simply no description of issues of governance, sovereignty, and authority, in the Treaty text beyond the legal and technical terms cited above and a few sub-provisions regarding Government consent for the sale or lease of land or resources. Does this not mean we must look to the context of intentions that brought the Anishinaabe to the negotiations to interpret their contribution to the common intention?

The Anishinaabe were complaining about incursions into their territories which were disrupting their way of life. Does this mean the land cession clause must be interpreted in a manner that minimizes that disruption in order to favour the Anishinaabe interest? Is a complete surrender of land title and sovereignty consistent with such an interest? Or is a complete surrender in fact maximizing that disruption by attempting to legitimize and legalize the fullest possible version of that disruption?

Notice that “reservations” are exempted. How are they exempted? According to the text there is a distinction between ceded lands and reserved lands in the Treaties partitioning of traditional Anishinaabe territories. However, no details are offered regarding governance or sovereignty except with regard to limited notions of Government permission when selling resources or land.

Harvesting and Ways of life

The harvesting provisions concern the “ceded” territories.

…to allow the said chiefs and their tribes the full and free privilege to hunt over the territory now ceded by them, and to fish in the waters thereof as they have heretofore been in the habit of doing, saving and excepting only such portions of the said territory as may from time to time be sold or leased to individuals, or companies of individuals, and occupied by them with the consent of the Provincial Government.

The harvesting provision is directly associated with the “now ceded” territory apparently allowing the Anishinaabe to harvest “as they have heretofore been in the habit of doing”. This would appear to be a provision that would address the Anishinaabe interest to protect and maintain their way of life. The Treaty appears to protect the Anishinaabe way of life but at the same time the territory is apparently now ‘ceded’, a word, we are told, that cannot be translated into Anishinaabemowin.

How clearly was this provision of protection explained. The Anishinaabe clearly understood the issue of protecting their ways of life was directly linked to their power of permission, i.e., their sovereignty, which they were clearly and explicitly asserting in numerous petitions in order to enforce that protection. How clearly was it explained that the Treaty would be extinguishing Anishinaabe title, sovereignty and governance to the Crown? That the Treaty would be extinguishing their power of permission “forever” in exchange for a below-standard, flexible compensation in the form of money which most Anishinaabe did not really use. In other words, what interpretation is in keeping with the Anishinaabe intention and interest, and what interpretation would violate that intention and interest? How was this shift in sovereignty explained by Robinson?

Reserves

The “reservations” are given minimal description in the Treaty text.

…which reservations shall be held and occupied by the said Chiefs and their Tribes in common, for the purpose of residence and cultivation…

These “reservations” refer to that part of traditional Anishinaabe territories exempt from the provisions creating, and applying to, “ceded” lands.

Does this provision fall under the Anishinaabe intention to maintain and protect their way of life. On the one hand, it might appear so insofar as it creates a territory exempt from the provisions covering the “ceded” territories which appear to be open to some form of Government managed use. It might appear to be land retaining the status of the pre-Treaty traditional territory. However, on closer examination, the “reservations” have some curious qualifiers.

First, they are “held and occupied…in common”. We are not told what that means. Presumably it refers to a system of land holding outside the fee simple forms of individual land holding found within Crown regimes. We are not told if “common” implies matters of sovereignty and governance.

Furthermore, they are held in common “for the purpose of residence and cultivation”. This is the rather curious qualifier. Bear in mind, the Anishinaabe intention and interest, as clearly enumerated in their many petitions, was to complain about incursions which were disrupting their way of life. Their way of life was not one of fixed “residence and cultivation”. In other words, the question emerges, what were “reservations” according to the Anishinaabe interest and intention and what were they according to the interest and intention of the Colonial Government?

Was the provision regarding “reservations” calling for a dramatic transformation in the Anishinaabe way of life? Is this treaty text regarding reserves, described as specifically “for the purpose of residence and cultivaton”, a ‘placeholder’ reference by Robinson to the Colborne policy of civilization through fixed settlement and agriculture? Were the Anishinaabe aware of and agreeing to such an understanding? None of this is addressed in the Treaties’s text.

Financial Compensation

The other main provision is the financial compensation.

…for and in consideration of the sum of two thousand pounds of good and lawful money of Upper Canada, to them in hand paid, and for the further perpetual annuity of five hundred pounds, the same to be paid and delivered to the said Chiefs and their Tribes at a convenient season of each summer, not later than the first day of August at the Honorable the Hudson’s Bay Company’s Posts of Michipicoton and Fort William,

The structure of the text has the above compensation provision as compensation for the provision regarding the land cession, “for and in consideration of”, suggesting that it is the land cession that is primarily what is being purchased with the financial compensation.

Sub-Provisions:

Selling Minerals & Land on Reserves

Recall, however, the land cession has the reserve exception attached to it. Furthermore, the reserve exception has following it a further consideration regarding selling reserve land.

…and should the said Chiefs and their respective Tribes at any time desire to dispose of any mineral or other valuable productions upon the said reservations, the same will be at their request sold by order of the Superintendent General of the Indian Department for the time being, for their sole use and benefit, and to the best advantage.

Thus within the un-ceded reserve lands, “mineral or other valuable productions” can be sold, but only “by order of the Superintendent General of the Indian Department”. Here we have an implicit reference to a specific issue of governance in the Treaty, beyond the general reference in the land cession provision regarding “Her Majesty, Her heirs and successors forever”. In this case it regards minerals. It would appear this consideration is in response to the mining activity which the Government is attempting to legitimize but concerns post-Treaty reserve lands.

There are other sub-provisions with financial implications.

Following the clause providing for harvesting rights in the “now ceded” territory, there is a provision for sales within this ceded territory.

…saving and excepting only such portions of the said territory as may from time to time be sold or leased to individuals, or companies of individuals, and occupied by them with the consent of the Provincial Government.

In other words, the harvesting rights in ceded territories may be restricted if the Government sells or leases portions of it to individuals or companies.

There is also a sub-provision regarding the sale of reservation lands.

The parties of the second part further promise and agree that they will not sell, lease, or otherwise dispose of any portion of their reservations without the consent of the Superintendent General of Indian Affairs being first had and obtained;

Here Robinson provides for the sale of reservation lands by the Anishinaabe, but only with the “consent” of the Government. This is largely inkeeping with the rules governing colonial purchase of Indian lands laid out in the Royal Proclamation.

Mining Activity

There is a provision not to interfere with mining activity.

…nor will they at any time hinder or prevent persons from exploring or searching for mineral or other valuable productions in any part of the territory hereby ceded to Her Majesty as before mentioned.

This is likely a reference to incidents like the Mica Bay incident which did just that.

There is then a provision for mining permits already sold by the Government on land now reserved to be paid to the “tribe to whom the reservation belongs”.

The parties of the second part also agree that in case the Government of this Province should before the date of this agreement have sold, or bargained to sell, any mining locations or other property on the portions of the territory hereby reserved for their use and benefit, then and in that case such sale, or promise of sale, shall be forfeited, if the parties interested desire it, by the Government, and the amount accruing therefrom shall be paid to the tribe to whom the reservation belongs.

Thus the details of the Treaty text are preoccupied with resource development locations and the management of the financial revenues and compensations associated with such locations.

Augmentation Clause

There is then the relatively lengthy provision regarding the possible augmentation of the annuities if economic circumstances of the ceded territory warrant it without loss to the Government, which is then followed by the description of the extent of the reservations.

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Structural Logic of the Robinson Treaty

Here I lay out the compressed structure of the textual provisions of the Robinson Treaty. I have followed the transcription in breaking up the parts of the treaty according to the use of periods and colons.

P1: Agreement

This agreement (when & where) between Her Majesty and Lake Superior Ojibwe:

P2: Compensation, Surrender, Reserves

For & in consideration of (compensation) do (surrender land) except for (reserve) (reserve resources are sold for the tribe’s benefit).

P3: Compensation, Harvesting, Lease Exception

Reiterate (compensation), affirm (harvesting rights on ceded land), with exception for (sold or leased land).

P4: Reserve Sales, Non-interference

(Reserve lands may be sold only through the Government); (no interfering with mining on ceded lands).

P5: Pre-Treaty Sales

(Pre-treaty land revenues go to reserve tribe)

P6: Augmentation

(augmentation clause).

P7: Reserves

(reservations schedule)

P8: Signatures

(signatures)

Role of Financial Compensation

There appear to be three primary references to financial compensation. P2 is the primary reference to compensation linked to the land cession provision, which P3 simply reiterates but now linked to the protection provision. P6 is the augmentation clause regarding possible increases in annuities. As noted above, there are other sub-provisions regarding resource or land sales where the revenues may flow to the ‘Ojibwe Indians’. There is no explicit indication who receives the revenues from ‘ceded’ lands, however, given the seller appears to be the Government, one might presume the Government is to be the receiver.

Every section of the Treaty contains some kind of financial consideration, either primary or secondary. But is money, as the primary form of compensation, a reflection of the Anishinaabe interest or the Government interest? As Justice Hennessy notes, money is simply not a cultural and economic form of which the Anishinaabe at this time make widespread use. It is a question worth asking, at this time, is money really being used in Anishinaabe communities? Even at HBC posts, is bartering goods still the primary medium of exchange? In other words, is the compensation being offered by the Government largely useless to the Anishinaabe? If so, does that strongly suggest that the perception of the Robinson Treaties as a land cession in exchange for financial compensation reflect a profound misinterpretation of the Anishinaabe interest and intention?

The Land Surrender

The land surrender provision immediately follows the primary financial consideration suggesting a direct exchange. In other words, the surrendered land is being purchased.

It is at this point that the textual language is at its most legal and technical. The chiefs and principal men are described as acting “freely, fully and voluntarily” in this purchase agreement. The action is to “surrender, cede, grant and convey”. The action concerns “all their right, title and interest” in the “whole of the territory” in question, “forever”.

Recall that when faced with technical and legal language, the SCC has indicated treaty interpretation must favour the Indigenous interest. Which begs the question, what is being sold in this purchase transaction? And does it favour the Anishinaabe interest to sell it? In other words, is what was sold on paper what the Anishinaabe thought they were selling in commensurate and reciprocal exchange for the compensation provided in the Treaty?

Macdonell, the lawyer representing the Anishinaabe, and likely the only person amongst the Anishinaabe participants who understood the language used, was “sidelined” by Robinson, as Justice Hennessy described Robinson’s dismissal of Macdonell.

Again, are the Anishinaabe simply granting permission to limited access for existing locations and future prospects? There is no indication in this section that this land transaction might imply issues of governance.

The only implicit reference to sovereign governance relations occurs with respect to augmenting the annuities where the Treaty states that the Crown “desires to deal liberally and justly with all Her subjects”. There is no explicit indication in the land surrender section that the Anishinaabe were being turned into “subjects” of the Crown. One would have assumed that if this document was in fact addressed to the Anishinaabe readers, it would have gone into some detail to explain the nature of the new arrangement the treaty was creating between the Anishinaabe and the Crown. If there was going to be a profound change in the relationship, and not just permission and permits to access particular locations, why was this not spelled out more clearly in the document?

Other Ceded Land Provisions

The first major provision will divide the traditional Anishinaabe territory into two parts: a ceded part and a reserved part. How did the Anishinaabe understand this distinction?

The section on harvesting rights concerns the “territory now ceded by them”. This is described, using legal terminology, as a “full and free privilege”. What did the Anishinaabe hear and understand, without their trained lawyer to assist them? The Treaties state they would be able to hunt and fish “as they have heretofore been in the habit of doing” in the territories also described as “surrendered”. It might be difficult to comprehend what ‘surrender’ means if you understand that you are to continue to live as you always have in the territory being ‘surrendered’. Recall the trial heard that certain words, including ‘surrender’ could not be translated into Anishinaabemowin. If the so-called ‘ceded’ lands were being subject to a whole new form of governance, would that not have been laid out in some form in the Treaties? By comparison recall the details of the Royal Proclamation 1763 which provided colonial subjects with an update on how they were to be governed following the end of French Crown authority after the Seven Years War.

Regarding provisions which indicated that land or resources might be sold or leased, would it not be reasonable for the Anishinaabe to simply be thinking of the Mica Bay incident and other specific and relatively small locations within their territories? Recall the Hurons had sought to sell permits and collect toll road fees themselves, so why not use such examples to understand and interpret what it is the Anishinaabe are selling? This is precisely what the pre-Treaty complaints were about, that the Government was selling access to portions of the Anishinaabe territories without Anishinaabe permission and without Anishinaabe compensation. Arguably this is precisely what the Treaties were now providing, with the Government managing the relationship with resource companies on behalf of Anishinaabe permission and compensation?

Just as every section of the Treaties involves some financial consideration, so every section involves some provision for resource development activity. Therefore, it would be understandable to assume that these were the major terms of the Treaty, not a vast land cession with profound transformations for governance and ways of life, but simply limited and open-ended financial compensation for limited existing and future open-ended resource locations. Again, this is precisely what the pre-Treaty Anishinaabe complaints were seeking: permission and compensation for accessing specific locations for resource development in Anishinaabe territories.

Role of Reserves

The role of “reservations” forms something of a conundrum within the Treaty. They are presented as a second subdivision of the Anishinaabe traditional territories with different properties distinct from those of the ‘ceded’ portion.

On the one hand, reserves appear to be territories where development and settlement is excluded, but there are provisions for selling reserve resources and reserve lands, presumably to settlers for settlement and development. On the other hand, the explicit provisions regarding protection, of hunting, fishing and ways of life, concern the lands ceded by the Treaty. What kind of protection does this represent if the land is assumed to be surrendered? Unless of course, that was not the assumption on the part of the Anishinaabe.

The “reservations shall be held and occupied by the said Chiefs and their Tribes in common, for the purpose of residence and cultivation”. How do the “reservations” fit into the Anishinaabe interest and intention?

Given the nature of the Anishinaabe complaints about interference with their way of life, would it not have made more sense for the reserves, which appear to be locations of greater exclusion of settlers and development, to cover the territory where their way of life is traditionally practiced in order to protect it? But in fact ‘their’ way of life extends into the territory now described as ‘ceded’ to the Government and the ‘reserves’ are strangely de-linked from the traditional, seasonal practices of hunting and fishing.

What then is the purpose of “reservations” from the Anishinaabe perspective? One could sympathize if the Anishinaabe were somewhat confused with all this.

There is, however, one very specific characterization of reserves, as noted, and that is their “purpose” which is “for residence and cultivation”. Was this ‘purpose’ following the Anishinaabe interest or the Government interest? In 1850 very few Anishinaabe engaged in fixed residence and cultivation. This was primarily true only of those few who lived immediately adjacent to HBC posts.

Was the ‘purpose’ of reservations part of the Government’s purpose to turn Indigenous peoples into settlers transforming their way of life to that of fixed residence and agricultural cultivation. Was this the Government’s Colborne policy operating through a less than perfectly transparent ‘placeholder’ in the Treaties? And more importantly was this in fact an Anishinaabe intention and interest?

If the Treaties were calling for a fundamental transformation of the Anishinaabe way of life, along with their mode of governance, would the Treaties have not made that more clear and with more details? This raises two more important issues. With transformations this fundamental, was there an appropriate and commensurate compensation coming from the other side? And as important, were all those who would be affected by such fundamental transformations properly consulted on the Anishinaabe side? Did the Anishinaabe spokespersons have the consensual support to make such profound and fundamental transformations without directly consulting those who would be most affected?

Interpreting Common Intention

It is very difficult to discern from the text of the Robinson Treaty, read from the perspective of the Anishinaabe interest, and keeping in mind the SCC principles of treaty interpretation, that the Robinson Treaties were anything more than i) a recognition that the territories involved were Anishinaabe territories, ii) their ways of life and traditional practices were to be protected, iii) only minor infringements for mining and other activities were likely, and iv) there would be appropriate compensation wherever such infringements occurred.

Any treaty references to governance, sovereignty, subjects, and surrenders, are simply not articulated clearly enough from a non-technical and non-legal perspective that favours the Anishinaabe interest to warrant understanding the Anishinaabe intention and interest as a wholesale transformation of their ways of life and governance. Recall there can be no sharp dealing in a valid treaty. The common intention must flow from an open and transparent mutual understanding of the Treaty’s provisions. Unfortunately for the Crown interpretation, by “sidelining” Macdonell, Robinson likely forfeited the possibility of any transparent understanding of the technical and legal provisions of the treaty text. Of course, Robinson may have understood that if such language had been clearly explained to the Anishinaabe, that they would never have ‘signed’ the Treaties.

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Tentative Conclusion

We can therefore tentatively conclude that either i) the common intention must align with the Anishinaabe intention and interest in order to be valid, or ii) if it does not, then the Treaties are invalid.

Again, the Anishinaabe intention and interest, as summarized by Justice Hennessy, is to i) protect their way of life, ii) have their authority as traditional occupants of their territories recognized, and iii) where there will be uses of those territories by outsiders, those outsiders must receive permission from and provide compensation to the Anishinaabe rights holders.

To interpret the Robinson Treaty from the Anishinaabe intention and interest would mean i) there is no surrender of sovereignty over traditional Anishinaabe territories, ii) Anishinaabe peoples do not become “subjects” of Crown governance, iii) there is only a provision of shared use and shared revenues given the permission of and compensation to the Anishinaabe based upon the future-oriented provisions of the augmentation clause, iv) the traditional way of life of Anishinaabe peoples is protected, v) the Anishinaabe agree not to interfere with mining and other activities which receive Anishinaabe permission and for which there is again compensation to the Anishinaabe, vi) reservations are territories from which newcomers are excluded and where development is prohibited except where the Anishinaabe choose to engage in development. I should add that from the Anishinaabe intention and interest it would appear that the distinction between ceded and reserve lands, with respect to autonomy and protection, is largely incoherent.

All of these Anishinaabe interests and intentions, according to the principle of reciprocity and commensurate exchange, need to be in keeping with the only compensation the Crown is providing which is financial. And that financial compensation will be limited and flexible based upon future prospects from the land the Anishinaabe are prepared to continue to allow access to as long as proper permission and compensation continue to be provided.

The principle of the honour of the Crown would seem to suggest that the Crown must behave so as to protect the above described Anishinaabe intentions and interests, including the respect, responsibilities, reciprocity of commensurate gifts, and finally the continued renewal of such values. This would suggest that, to the extent the Crown does not uphold and renew such values, the Robinson Treaties, from the Anishinaabe perspective, are rendered invalid.

The issue of what changes were made by the Robinson Treaties to the sovereignties which sat down to negotate the Robinson Treaties may remain open, unresolved and unreconciled. If so, there would be no valid common intention regarding any claim of a profound transformation in sovereignty by the Treaties. And thus, the Treaties, on this point of the Crown interpretation of its own post-Treaty sovereignty vis-a-vis the Anishinaabe, are invalid. Absent the valid transformation of sovereignty assumed by the Crown, presumably the Anishinaabe retain the full sovereignty to continue to negotiate what form reconciliation might take, through treaty negotiations, into the future.

What follows is a brief consideration of the honour of the Crown and fiduciary duty, followed by a consideration of the historical and cultural context leading up to the Robinson Treaties.

Treaties and Negotiated Sovereignty

Honour of the Crown

(XI. The Honour of the Crown)

Justice Hennessy describes the honour of the Crown as a “foundational principle“ with the underlying goal of reconciling Crown and Indigenous interests, ²⁶⁸ including treaty making.²⁶⁹ [478] We have already noted Justice Hennessy’s reference to the Proclamation’s ”unexplained assertion of dominion"

I will argue that the principle of the honour of the Crown is an explicit legal recognition that the Crown in Canada is the result of a negotiated sovereignty, but one that attempts to retain some semblance of Crown unilateralism as the nature of that sovereignty. This idea of Crown unilateralism the Europeans brought with them from Europe, however, I will not elaborate upon that history further in this essay.

One interpretation of reconciliation is that the Crown, with its assertion of sovereignty, gains some kind of supremacy over Indigenous peoples, but in doing so acquires a unique set of responsibilities expressed in the principle of the honour of the Crown and its derivative principle of fiduciary duty.

The problem with this interpretation of reconciling sovereignties is that it must represent a common intention, an agreement, and thus that it is itself a product of treaty making. Indigenous peoples must have intended this result, the Europeans could not simply unilaterally assert it. But that is what the Royal Proclamation is, a unilateral assertion, a proclamation by the Crown. And Justice Hennessy has agreed.

As we have noted, the Robinson Treaty text is at its most legal and technical in the land surrender section, presumably the section that carries the most significance for any claims the treaty provides with implications for sovereignty, governance and ways of life. And as we have been told, SCC treaty interpretation principles indicate that when such language occurs, the interpretation must favour the Indigenous interest.

Justice Hennessy characterizes Anishinaabe society.

At the time of the Treaties and before, the Anishinaabe of the upper Great Lakes region were living in distinct societies, with their own social and political structures, as well as laws and interests in land. ²⁷¹

So did the Anishinaabe peoples agree to be ruled under the principle of the honour of the Crown or is this idea another product of a unilateral Crown assertion?

Regarding the augmentation clause at issue at trial, the Crowns, Canada and Ontario, claimed some form of ‘unfettered discretion’ regarding various aspects of the implementation of the clause. However, the idea that the Crown has any unfettered discretion regarding anything flowing from a treaty with Indigenous peoples, would have to be based on the Indigenous interest at play in that treaty intending explicitly for the Crown to acquire such unfettered discretion. Unfettered discretion can not have both a unilateral source and flow from a treaty. Recall the Royal Proclamation’s “unexplained assertion of dominion”.

Various duties flow from the honour of the Crown: a fiduciary duty if the Crown assumes discretionary control of an Aboriginal interest, a duty to consult (and accomodate if appropriate) regarding Crown actions affecting Aboriginal interests, and a duty to honourably achieve the “intended purposes” of treaties. [483]

Justice Hennessy reminds us of the purpose of the honour of the Crown.

The underlying purpose of the honour of the Crown is to facilitate the reconciliation of the pre-existing sovereignty of Indigenous peoples with the assumed sovereignty of the Crown. ²⁷⁷ [491]

In other words, the honour of the Crown and treaties share the same birth right. I interpret this principle of reconciliation as based upon the idea that the Crown in Canada is the product of treaty negotiations, not a unilateral creation of a European monarch. Treaties produce a negotiated sovereignty resulting from an agreement between a European Crown (French or English) and Indigenous peoples. Justice Hennessy notes that the “reconciliation of interests” may be achieved through negotiation. As the SCC indicated, “negotiation is a preferable way of reconciling state and Aboriginal interests.”²⁷⁸

If negotiations are the “preferable way of reconciling state and Aboriginal interests”, is this not an acknowledgement that treaties, not unilateral Crown pronouncements, are the underlying foundation of legal authority in Canada. In other words, reconciling sovereignties through treaty making produces a ‘negotiated sovereignty’ not an unfettered unilateral discretion of an absolute Crown sovereignty.

As it is, Justice Hennessy comes down fairly hard against the principle of the “unfettered discretion” of the Crown, rejecting the idea that “the court cannot disturb the unfettered discretion” of the Crown regarding the issues at trial.

Unfettered unilateral Crown discretion would appear to be a residual legal presumption linked to the “unexplained assertion of Dominion” which belies an unclarified prejudice operating within Crown institutions.

Fiduciary Duties

(XII. Fiduciary Duty)

Fiduciary duties flow from the honour of the Crown principle governing relations between the Crown and Indigenous peoples and may lead to additional duties and remedies beyond obligations imposed by the principle of the honour of the Crown alone.

The honour of the Crown gives rise to a fiduciary duty when the Crown assumes discretionary control over a specific or cognizable Aboriginal interest.²⁸⁰ [499]

Justice Hennessy does find an ad hoc fiduciary duty arising from the Treaties that “the Crown undertook to act exclusively in the best interest of the Treaties’ beneficiaries in their promise to engage in a process to determine if the economic circumstances warrant an increase to the annuities.”. [519] It was “a contingent promise based on a risk”.[522] She notes that the augmentation clause was a factor of “consideration for the surrender”. [523]

The augmentation promise was the key to bringing the parties to an agreement. It was an inducement or a way to bridge the expectations of the parties and formed the common intention of the parties when the Treaties were signed. Without the promise of the augmentation clause, it is probable that there would have been no treaty.

If there would not likely have been a treaty without the augmentation clause to bridge the gap between expections, intentions and interests, presumably the augmentation clause is crucial to assessing the overall validity of the common intention formed in the treaty negotiations.

Justice Hennessy summarizes the role of the Crown’s fiduciary duty.

The purpose of the fiduciary duty is to facilitate supervision of the high degree of discretionary control assumed by the Crown over the lives of Indigenous peoples.²⁹¹ [527]

So fiduciary duty is linked to the assumption of Crown discretionary control over Indigenous peoples. How did this discretionary control come into being? Is it simply another manifestation of the “unexplained assertion of Dominion”? An unclarified prejudice the colonial society introduced and attempts to impose on Indigenous peoples? Recall, Justice Hennessy’s outlining of the Covenant Chain foundation was not about unfettered unilateral Crown imposed sovereignty.

Is the implicit unfettered discretion, the unilateralism, the unclarified prejudices of the honour of the Crown and fiduciary duties, what the Anishinaabe were agreeing to in 1850? The augmentation clause can only bridge the gap if what is on the two sides of that gap are transparent, commensurate and reciprocal expectations, interests and intentions. The augmentation clause is defined as serving an interest of limited, flexible, and forward-looking financial liability. What on the Anishinaabe side, regarding the assertion of their power of permission, would match this degree of limited, flexible and forward-looking compensation as a reciprocal and commensurate form of exchange?

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Part II: Anishinaabe Intention

(II. Who Were The Anishinaabe of the Upper Great Lakes Region?)

In this second part of this thesis I will briefly canvas some key concepts in the historical and cultural context leading to the Robinson Treaties covered by Justice Hennessy in presenting her judgement. The goal is to fill in relevant aspects of the Anishinaabe intention and interest brought to the treaty negotiations and purportedly reconciled with the Government interest in forging a common intention in Robinson’s Treaty documents. Much further research on these questions would be required to properly develop this line of argument, here we simply sketch contextual factors which appear to have some bearing upon identifying the Anishinaabe intention and interest at the Robinson Treaty negotiations of 1850 for the purpose of evaluating the validity of the Treaty at this point.

A World of Interdependent Beings

Council Fires, Governance and Consensus

The Anishinaabe were organized in bands and occupied discrete territories that bands considered their communal property.²⁰ Historically, the bands relocated annually, moving between smaller groups in the winter for hunting and coming together in larger gatherings in the spring and fall at council sites to conduct politics and engage in large scale social events.²¹ [20]

This description is helpful in suggesting something of the transformations the Robinson Treaties were calling for, in the nature of the Anishinaabe territories, in Anishinaabe ways of life and governance. These fundamental aspects of Anishinaabe society were being exposed to forces of transformation which the Treaties seem to encourage and legitimize from the Crown’s interest and intention. But was that the Anishinaabe interest and intention?

The fire metaphor, linked to gathering around a hearth, is central to Anishinaabe governance and political connectivity within and between families, confederacies, nations or peoples. [22] Each council had an Ogimaa of a specific doodem responsible for keeping the fire and hosting the council.[26] Hennessy notes that Europeans understood and recognized Anishinaabe Ogimaa and principal men in their agreements. [29] Yet Justice Hennessy also notes an important distinction, “an Ogimaa was not equated with authority”. [30] Anishinaabe leadership embodied responsibility, respect and autonomy “demonstrated through deliberative and consensus-based processes”.

…an Ogimaa sought to achieve consensus among their people. Anishinaabe leaders had no authority over other groups and could not sign treaties on behalf of other polities or even their own people without consent.²⁸

One of the key and major questions that needs to be considered is, regarding the terms of the Robinson Treaties which constitute the common intention which purportedly reconciled the parties interests, were the proper “deliberative and consensus-based processes” of the affected Anishinaabe communities properly followed to achieve the appropriate level of consent for the substantive terms of the Treaties?

And what is especially important is what difference would there be if what was being negotiated was i) simply access and compensation for particular mining locations, or ii) the profound transformation of Anishinaabe sovereignty, ways of life and governance? Would the same degree of community consultation and consensus be required and did the “chiefs and principal men” at the negotiations in 1850 have the authority (community consensus) to make such decisions?

On the British side, Robinson was mandated by an Order in Council and reported directly to Governor General Elgin during the negotiations. In the consensus-oriented world of the Anishinaabe, how ought the terms of the Robinson Treaties to have been addressed?

The Anishinaabe had an established tradition of sharing their territory with others, provided that the use or occupation was authorized. Outside the established protocols for sharing territory, however, the Anishinaabe were “exceedingly strict” in regard to unauthorized intrusion in their territory.³¹ [32]

Although council fires were held, is there any indication of Anishinaabe decision-making being part of the language of Robinson’s text? With regard to extinguishing “all right, title, and interest”, or transforming the Anishinaabe way of life into “residence and cultivation”, were these issues properly discussed with the affected communities to form a valid consensus going forward?

Robinson successfully negotiated two treaties by dividing the delegations along regional lines. How would such divisions affect the interpretation of common intention and interests on the Anishinaabe side of the treaty negotiations? And how should it have affected the process of community consensus building on the Anishinaabe side?

Kinship, Gift Exchange and Alliances

Anishinaabe identity, familial and political, is based upon doodem (clan) kinship systems. Furthermore, doodem identity structured council fires through the Ogimaa’s doodem and connection to place. [40] Justice Hennessy notes the Robinson Treaties do not include doodem symbol signatures which most other treaties to that time did. [42] What is the significance of the absence of doodem symbols in the Robinson Treaties? Presumably, there absence would be directly related to the significance of their presence in other treaties. If doodem identities are central to political identities, what does their absence say about the legitimacy of the terms of the political text produced by Robinson?

The Crown was aware and used Anishinaabe kinship metaphors, which were still relevant and operative in 1850 through the Robinson Treaties process of treaty-making. ⁴² [45] As Justice Hennessy says “kinship terms represented a shared diplomatic formality ⁴³ when the different worldviews met at the negotiation table”. ⁴⁴ [47] Is this further indication that the text is not a reflection of the Anishinaabe intention and the oral negotiations at their council fires? At the very least does it suggest Robinson’s written text is not a product of the shared diplomacy flowing from the Covenant Chain but more akin to the unilateralism of the Royal Proclamation?

Within the Anishinaabe worldview, gift giving was a ubiquitous and governed by the “principle of reciprocity”. [49] .⁴⁷ Mutual exchanges of gifts were “part of alliance-making ceremonies”. [50] Europeans understood and participated in the gift giving protocol, [51] including the annual ‘presents’ which established the “binding relationship” between the Crown and Anishinaabe. [52] The distribution of presents dated back to the earliest contact and indicated a “tribute” for the use of Anishinaabe lands by the Crown. [53] ⁴⁹ As an annual event, such presents re-established and renewed the reciprocal nature of the relationship for the “British presence in Anishinaabe territory”. The annual distribution of presents was discontinued in 1858. [55] ⁵⁰

Justice Hennessy provides some insight into the Anishinaabe intention and interest by consider their creation story. The Anishinaabe story of creation brought the Anishinaabe into a “complex web of relationships” in which all aspects of the natural world had “the breathe of life”. The Anishinaabe were merely a part of this interconnected collective natural world.⁵² [56] Anishinaabe laws were developed to navigate the “complex web of creation” based upon respect and mutual responsibility and pimaatiziwin (life). [57] ⁵³ The land is a source of physical, emotional and spiritual sustenance ⁵⁴ as represented in aadizookaanag (sacred stories). ⁵⁵ [58] Concepts of stewardship (bimeekumaugaewin), where rights find correlative obligations, support the thriving of this web of interdependent relationships. [59] ⁵⁶

This account suggests our emphasis upon narrative validity has a certain resonance with the Anishinaabe world view and the role of stories. The goal of treaty making would then appear to be advancing and maintaining pimaatiziwin (life) by maintaining and strengthening the web of relations of which the Anishinaabe were a part. Was this what the Robinson Treaties were intended to do from the Anishinaabe perspective? What was the Crown intention regarding land surrenders, reserves and ceded territories, and financial compensation designed to achieve? Were the Anishinaabe aware that the Crown intention would involve fundamental transformations in their sovereignty, ways of life and governance, such that their powers of permission which they brought to the treaty negotiations were going to be extinguished by those negotiations, “forever”?

In other words, was there in fact a common intention formed at the council fire that reconciled the interests and intentions being negotiated in 1850 at Bawaating? If no such valid common intention was formed then presumably the Robinson Treaties of 1850 must be judged to be invalid regarding those terms or provisions.

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Written Record 1763–1849

(III. The Written Record 1763–1849: From the Royal Proclamation to the Vidal-Anderson Commission)

Justice Hennessy reviews the written record from 1763 until 1849 to supply historical and cultural context to her findings. Relevant to our review of the validity of the Robinson Treaties, the record will show a major shift in Crown policy from a founding period marked by military and political alliances to a civilian management policy marked by efforts to assimilate the Indigenous populations. As we shall see the Robinson Treaties appear to be part of this transition. The crucial questions are: i) were the Anishinaabe aware of this shift, and more importantly, ii) was facilitating this shift part of the Anishinaabe intention in the Treaty negotiations?

The Foundational Relationship

Justice Hennessy indicates that over the period from 1763 to 1849, the “Anishinaabe asserted their interests”, the results were “negotiated, not imposed” and “Anishinaabe perspective and practices” were critical in reaching a negotiated “consensus”. [62] The Covenant Chain alliance provided the diplomatic foundation as an “alliance of equals” [65] which needed to be renewed at “annual councils” held at “designated council fires”. Gift exchanges provided the symbolism of the “military and political alliance”. [67]

During and following the Seven Years War and Pontiac’s Rebellion, the British sought neutrality then peace by extending the Covenant Chain to the Western Nations to enable further settlement and development. [68–71] The result was the Royal Proclamation 1763 which Justice Hennessy notes “reflected Crown recognition of Anishinaabe sovereignty that survived the unilateral declaration of Crown sovereignty”. This process “called for negotiation” to enable opening the land for newcomers. [72] While recognizing its foundational role in the “history of Canada’s relationship with Indigenous peoples”, Justice Hennessy also notes its unilateral nature.

The Royal Proclamation was a unilateral declaration of the Crown, asserting Crown sovereignty over what is now Canada. At the same time, the Proclamation affirmed Aboriginal title and ownership of all unpurchased land. [73]

Justice Hennessy acknowledges explicitly the “fundamentally contrary concepts” lying at this foundation of Canadian political and legal history. The Crown asserts sovereignty but simultaneously recognizes that the territories in question are in the possession of First Nations. ⁶³ [75]

Justice Hennessy notes the legal history of the Supreme Court has wrestled with this contradiction.

…the Supreme Court of Canada…has attempted to reconcile the two fundamentally contrary concepts found in the Royal Proclamation, namely the assertion of Crown sovereignty (the right to acquire title and the right to govern) and the pre-existence of Indigenous societies. [76]

It is important to recognize that the Royal Proclamation is a unilateral pronouncement. It is not a treaty. It is not the expression of a common intention forged between the Crown and First Nations. The Proclamation lays out the requirements for purchasing Indian lands by colonial subjects, the need for compensation, and the need for treaties. [78] These requirements lead to the Robinson Treaties. [79]

Justice Hennessy describes the 1764 Council at Niagara as a diplomatic effort by the British “to renew and strengthen the Covenant Chain alliance with the Western Nations” [81–83] utilizing the Indigenous “symbolic language of kinship” and gift exchange to represent “a reciprocal relationship between independent entities”. ⁷¹ [84–87]

The Covenant Chain alliance represents “the cross-cultural merging of diplomatic protocols and legal orders”. ⁷⁴ The British invoked the Covenant Chain to gain Anishinaabe support in the War of 1812 against the Americans, assistance “repeatedly recalled” long after the war. As late as 1849, Anishinaabe chiefs were presented with medals in recognition of their 1812 service. [95]

Thus from the Covenant Chain, to the Royal Proclamation, Niagara Council and the War of 1812, the founding relationship involved the recognition of sovereignties. The unilateralism of the Royal Proclamation represents a point of tension set against the alliance protocols of the Covenant Chain, Niagara Council and the War of 1812. The theme of Crown supremacy and unilateralism versus the negotiated sovereignty of equals will play themselves out in the Robinson Treaties of 1850.

It is important to grasp the dichotomy between the Crown’s inclinations to act unilaterally and, as Justice Hennessy has described it, the negotiated sovereignty which emerges from the Covenant Chain foundation.

Would the Robinson Treaties resolve and reconcile these conflicts or simply recreate them? Do the Robinson Treaty documents show any signs of this merged diplomatic discourse of the Covenant Chain tradition, or is it written within the diplomatic discourse of the Euro-Canadian unilateralist perspective? I will argue that the Robinson Treaty documents suffer from the unilateralist presumptions of the Royal Proclamation and fail to incorporate any of the merged diplomatic discourse of the Covenant Chain. And thus, the Robinson Treaties may be invalid, judged against the Covenant Chain standard and foundation.

Shift to Civilian Civilization Policy & Annuities

British policy shifts from a military alliance to civilian governance with a ‘civilization’ policy toward Indigenous communities as settlement and agricultural development increase in Upper Canada.

As part of the move to civil control, the Crown embarked on their “civilization” policy, aimed at reclaiming Indigenous people “from a state of barbarism” and assimilating them into a sedentary, Christian, agricultural lifestyle.⁷⁸ [97]

Despite this shift, the British Crown renewed the military alliance by distributing “presents and medals” ⁷⁹ and was still doing so as late as 1849. [98] At the same time, the British government and bureaucracy were transitioning “from military to civil control” which affected treaty making, including annuities. ⁸⁰ [99] Clearly there are mixed messages being sent here. Is this shift to a ‘civilization’ policy the result of a negotiated common intention with First Nations? Or does it suggest the Anishinaabe were being subjected to proclamation-style Crown unilateralism hidden in documents they could not read?

Beginning in 1818 annuities were the Crown’s response to the “perpetual nature” of land being opened for settlement, replacing one-time payments. Annuities were to be funded from the proceeds of surrendered lands and marked a shift due to waves of immigration and the devolution of responsibility from the Imperial to the local Colonial Government. [100–103] Settlers would pay for land sales “in perpetuity”. How transparent was all this to the Anishinaabe in terms of the common intention that is being developed at the Robinson Treaties negotiations?

The 1830 Colborne Policy, as part of the “civilization” policy, allowed recipient tribes to requisition against annuity funds “so long as the requisitioned items promoted a sedentary, agricultural, European way of life”. [106] Is this how we are to understand the “reservations” in the Robinson Treaties whose stated purpose was to be for “residence and cultivation”? Other than this curious language in the Treaties, there is no indication of a “civilization” policy being part of the common intention of the Treaties. If such a ‘civilization’ policy is driving the Government’s intention but not the Anishinaabe intention, what does that mean for the common intention and the validity of the Treaties?

Unlike in the south, the upper lakes regions was viewed as largely unsuitable for agricultural settlement, it was mining speculation that drew attention. Despite the absence of treaties, the Government started issuing mining licenses. [111–113] It was this disruptive mining activity that became the impetus for the flow of complaints from the Anishinaabe demanding recognition and compensation as understood within the Anishinaabe perspective. Thus the Crown-sanctioned mining activity largely precipitated the Robinson Treaties negotiations. [118] If so, is it also the primary basis of the purported common intention forged at the 1850 treaty negotiations?

The essence of the Anishinaabe intentions immediately prior to the Robinson Treaty negotiations appear fairly clear. They opposed the resource extraction occurring illegally on their territories. They sought recognition of their rights. They sought compensation for the resource activity. They set their claims against the shared tradition of the Covenant Chain military alliance, Crown promises and treaty making.

There are no Anishinaabe claims which incorporated their sovereignty or rights being extinguished. There are no demands to be ‘civilized’ en masse or to be transformed into sedentary agriculturalists.

The Anderson report of 1848 recorded Anishinaabe complaints of the "destruction of the landscape, of game being driven away, leaving the people to starve. ¹¹⁰ [131] The complaints also linked compensation to the wealth of the territory. [132] Anderson corroborated both the Anishinaabe claim of title and that the way of life was being damaged by settler activity. Anderson’s report laid the basis for a further report by Anderson and Vidal the next year.

In summary, the written record from 1763 to 1849, exposes a shift on the part of the Crown from a political and military alliance based on a Covenant Chain foundation between equal partners sharing a relationship, to a civilian managed civilization policy which sought, in effect, to transform Indigenous peoples into settlers. This would appear to be the ‘hidden agenda’ animating the Crown intention at the Robinson Treaty negotiations. However, as a ‘hidden agenda’ operating behind the legal ‘placeholder’ of reserves for ‘residence and cultivation’, I would argue it can not represent part of the Anishinaabe intention which focused on mining permits, recognition of land rights, and compensation for such economic activity. These Anishinaabe intentions do not align with the ‘hidden’ unilateralist agenda of Robinson and the Crown. A ‘hidden agenda’ can not be the basis for a transparent common intention. It would have to represent an act of ‘sharp dealing’.

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The Vidal-Anderson Commission

(IV. The Vidal-Anderson Commission)

The Vidal-Anderson Commission of 1849 was instructed to gather information regarding i) the Anishinaabe title claim, ii) additional information regarding populations, land use and extent, and iii) Anishinaabe expectations regarding compensation and reserves. ¹¹⁷ [139] The Commissioners travelled the north shores of Lakes Huron and Superior via canoe and steamer visiting HBC posts and meeting “16 of the 22 Anishinaabe Chiefs”. [141]

The Chiefs asserted “their fundamental right of possession and exclusive right of control over their hunting grounds” based upon ancient occupation. [144] Furthermore the commissioners learned the Anishinaabe had made their own leases and were planning to collect a toll for outsiders using roads. [147] These arrangements generated sharp rebukes from the Commissioners who warned against any such measures “without the authorization of the Government”. [149]

Why would the Anishinaabe, who were asserting title and control, require “authorization of the Government”? Is this an expression of the unilateralist presumption found in the Royal Proclamation, with its “unexplained assertion of sovereignty”?

The Anishinaabe recalled “four years of continuous protests” regarding mining and Government disregard. [150] They asked that the lawyer Macdonell speak on their behalf but the Commissioners refused and “closed the Council” in response. [150] Robinson will also reject Macdonell as the Anishinaabe legal representative and also threaten repercussions if he is included. [151]

Is this ‘sharp dealing’? Why can the Anishinaabe not have a lawyer to represent their interests on legal matters? In their report the Commissioners offer their reasoning. “[T]he simple minded Indians have been led to believe that this person is more desirous and better able than the Government to protect their interests and promote their welfare”.¹²⁴ [152] In other words, the Government interest will represent the Anishinaabe interest. Clearly this is an unqualified conflict of interests. To the degree that this prejudiced the formation of a valid common intention, surely it would equally invalidate the future treaty.

Justice Hennessy notes the “Crown’s seemingly contradictory views” embodied in the Vidal-Anderson report and we might wonder if they do not replicate the contradictions in the Royal Proclamation.

The Crown’s seemingly contradictory views embodied their layered understanding of the assertion of sovereignty and underlying Aboriginal title. However, these notions must have been conceptually incomprehensible to the Anishinaabe of the upper Great Lakes who had only relatively recently come into contact with the notions of common law title and alienation and monetization of land. [158]

How are such contradictory views and such “incomprehensible” concepts supposed to form the basis for a valid ‘common intention’ of interests? How is it possible to form a valid intention on the basis of an incomprehensible concept?

To follow Justice Hennessy’s summary of the Commissioners’ report, the Anishinaabe demand recognition of i) their authority over the land, ii) their right to compensation, for permitting the Crown to use and occupy the territory, iii) the Anishinaabe willingness to cede territory to the Government, iv) that there be no removal from “their present places of abode”, v) that their hunting and fishing activities not be interfered with, and vi) that compensation take the form of a perpetual annuity.

How are we to unravel the assessment of common intention taking shape here?

The Commissioners recommend the Crown seek a surrender of the whole region rather than compensating “only for the mining locations granted to date”. The rationale was that given the “comparatively valueless” nature of the territory, “extinguishing the whole Indian title” would free the Government for future land disposals “without embarrassment”. ¹³⁴ Furthermore and of relevance to Justice Hennessy, the Commissioners recommended a provision for increasing annuities based upon future sources of wealth. ¹³⁷ [162]

But are these options going to be clearly articulated to the Anishinaabe in the treaty negotiations such that they form a clear and transparent common intention?

Regarding the “Anishinaabe experience with money” and value, and despite the participation in the HBC “barter trade” typically using a standard unit of measure (‘made beaver’), Justice Hennessy excludes the idea that the Anishinaabe “appreciated the values of large sums of money”. [165] And yet, as we shall see, this is the only form of compensation outlined in the Robinson Treaties. In other words, will the compensation offered form the basis for the common intention the incorporates what the Anishinaabe are seeking given their non-financial understanding of the value of their land?

The land was a living part of the web of interconnected relations. The people had responsibilities toward the land; the land, in turn, sustained the people and was meant to sustain future generations.¹³⁹ [169]

Could financial compensation be satisfactorily integrated into this web of relations, or was the Government intent to transform this web of relations by gathering the Anishinaabe into sedentary agriculatural settlements for assimilation into the colonial monetary economy? It would seem clear that the interest the Anishinaabe are bringing to the treaty negotiations concerned protecting the “traditional ways” that “historically sustained” them and formed the “source of their sustenance”. If this is at the core of the Anishinaabe interest, does the “common intention” within the Robinson Treaties address that interest? Or is the Government’s intention to transform and assimilate the Anishinaabe intention into the settler perspective? If so, did the Government invalidate the common intention, the underlying agreement, which purportedly constituted the Robinsion Treaties?

Justice Hennessy sees in the Commissioners’ report the basis for using ‘land values’ as compensation for ‘land cession’ and thus the basis for bridging the gap between the expectations of the negotiating parties. [173] By linking compensation to the changing sources of wealth the Commissioners recommended a new model of compensation. [174] And this was in keeping with the perspective of the Anishinaabe chiefs who “since at least 1846 were linking compensation to mining activity. [175–176]

The question then becomes how will linking compensation to mining activity necessitate the absolute extinguishment of Anishinaabe sovereignty and the transformation of their ways of life and governance? Justice Hennessy’s view is that this linking, via the augmentation clause, was intended to bridge “the gap between the parties’ expectations”. However, if this gap is not in fact closed, is it fair to conclude that the treaty negotiations did not in fact forge a “common intention” out of the divergent interests at the treaty negotiations? Thus it becomes a crucial question whether the augmentation link between compensation and future land values in fact bridges the gap between expectations and intentions?

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Mica Bay Incident

(V. The Mica Bay Incident and Instructions to Robinson)

Anishinaabe Chiefs, accompanied by lawyer Macdonell, and 100 Anishinaabe occupied the Mica Bay mine “with the purported intention of halting mining operations at that site”. [183] The Governor General authorized the dispatch of troops ¹⁴⁶ but also ordered the Provincial Government to negotiate a treaty. [184]

Mining companies also pressed for a treaty to resolve Anishinaabe claims and avoid future hostilities. ¹⁵⁴ [193] In January of 1850, Robinson is appointed Treaty Commissioner and authorized to negotiate “for the adjustment of [Anishinaabe] claims to the Lands in the vicinity of Lakes Huron and Superior, or of such portions of them as may be required for mining purposes.”¹⁵⁶ [194] Note the emphasis on mining.

Justice Hennessy indicates that it is “generally accepted” that the Mica Bay incident in conjunction with the Vidal-Anderson Report led the Crown to begin treaty negotiations. [195]

Thus going into treaty negotiations, it appears to be clear on both sides that the issue was illegitimate mining permits and the need to legitimize mining activity through the recognition of Anishinaabe claims for permission and compensation. Robinson’s OIC mandate of January 11, 1850 instructed him to align compensation with the “partial occupation” for economic development.

…they ought not to expect excessive remuneration for the partial occupation of the Territory heretofore used as hunting grounds by persons who have been engaged in developing sources of wealth which they had themselves entirely neglected”.¹⁵⁷ [196]

So the initial mandate is clearly linking limited remuneration with “partial occupation” of Anishinaabe territories where the Anishinaabe engage their traditional ways of life.

A second OIC adjusts Robinson’s mandate to cover three options regarding the extent of territory covered: 1) the whole of the northern shores of Lakes Huron and Superior, 2) as far inland as possible, 3) north east coast of Lake Huron and portions of Lake Superior coast where “the Quebec Mining Company has commenced operations”.¹⁵⁸ [197]

Robinson’s mandate to negotiate a treaty did not provide him with sufficient funds to support the standard for annuities since 1818. [198–199] We might ask, if Robinson’s authorization was limited on the side of compensation, what was the matching limitation on what the Government was expecting in return?

Justice Hennessy considers the Government rationale for the below-standard compensation as the belief that the Anishinaabe “were not giving up much, simply mining locations that they had neglected.” ¹⁶¹ In addition, the Government was broke, mining permits were not providing significant returns, there were few mining locations and few immediate prospects. The HBC had downplayed economic prospects especially for agriculture. Furthermore, the Anishinaabe populaton was too large to allow for a population-based compensation model given the Government’s financial difficulties. Justice Hennessy concludes Robinson knew before he arrived in the Sault that the compensation model would be different from previous treaties. [201–206]

Thus it would appear that what was primarily at stake was mining permits, limited current locations and limited future prospects. Why would such interests require fundamental transformations in sovereignty, governance and ways of life on the Anishinaabe side? And most importantly, what was communicated by the Commissioners and later at the treaty negotiations regarding such interests and intentions, which would allow us to ascertain the final common intention forged at the treaty negotiations?

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Part III: The Treaty Council of 1850

(VI. The Treaty Council of 1850)

Robinson’s diary and report represent the only records detailing the Treaty Council of 1850. ¹⁶⁴ [209] Robinson indicates he met with two delegations, for Lakes Superior and Huron, and that the Governor General arrived to observe and to indicate Robinson negotiated with the full authority of the Government. ¹⁷⁰ [212]

Justice Hennessy’s description of the Treaty Council clearly indicates that this was not conducted exclusively within the protocols of authority of the Colonial Government. Discussions followed “a pipe ceremony and possibly a smudging ceremony”,¹⁷² and took place around the “Anishinaabe Council Fire at Bawaating” and not at any site of Government authority.

…it was conducted in Anishinaabemowin, as well as English, and incorporated ceremonies and protocols that characterize the long-standing system of Great Lakes diplomacy.¹⁷³ [214]

Our question will be, do Robinson’s Treaty documents reflect any of this tradition of shared diplomacy?

Justice Hennessy then summarizes Robinson’s initial offer.

Robinson’s initial proposal included reservation and hunting rights: reasonable reservations for their own use and the use of all the territory ceded “to hunt & fish over as heretofore, except such places as were sold to white people and others [and] occupied in a manner to prevent such hunting, &c”.¹⁷⁴ These issues were accepted and not discussed further. [215]

Note that there is no mention of sovereignty or governance. In fact it appears to meet the Anishinaabe expectations. It recognizes their title, territories for their exclusive use, and protection of their traditional hunting and fishing, with exception for specific economic locations that might interfere with their traditional ways. This would seem to be perfectly consistent with the idea of limited access rights for resource activities, which were, as we have seen, the immediate cause for complaint and treaty making.

Justice Hennessy, following Robinson’s account, indicates compensation becomes the central issue.

It is no surprise that from the outset, however, the question of financial compensation was the primary issue of concern. Robinson framed the financial terms as an option between two types of compensation: a single payment for the surrender of existing mining locations only or a gratuity/annuity provision for the surrender of the Anishinaabe’s traditional territories as a whole.¹⁷⁵ [216]

The Anishinaabe delegates “all preferred the latter proposition” regarding compensation.¹⁷⁶

So let’s be clear on what is stated here.

• a single payment for existing mining locations
• an ongoing annuity for the whole territory

On the compensation side, we have two forms of remuneration i) a single payment, versus ii) an ongoing annuity.

On the permission side, apparently we have i) existing mining locations, versus ii) the whole territory.

Again, let’s be clear, the underlying rational for both parties regarding Anishinaabe permission and compensation is existing mining location versus future mining locations in their territories. At no point, is there any indication that what the Anishinaabe are selling is, let’s call it, their power of permission, their authority to give permission and to receive compensation for it.

In the diary, Robinson apparently creates a set of options for payment. A single lump sum payment is restricted to the “surrender of existing mining locations only”. A gratuity or annuity payment is associated with the “surrender of the Anishinaabe’s traditional territories as a whole”. We are told that the Anishinaabe preferred the annuity form of compensation. But was it clearly explained that each of the different forms of payment was equated with such dramatically different forms of exchange? Except for the most technical legal language in the treaty document, the treaty text does little to explain such distinctions.

So to summarize at this point.

The Anishinaabe complain and demand recognition and compensation regarding existing and future economic locations. The Government has come to the point of meeting both these demands but seeks to keep the remuneration limited and flexible, in an unprecedent manner. The Anishinaabe know this.

Why in such circumstance would the Anishinaabe, apparently without any discussion, offer up their sovereignty, their mode of governance, their way of life, their power of permission, in a final act of that power of permission, in exchange for what both sides recognize is a below standard level of remuneration. According to Robinson’s version of the story, discussion apparently focused on financial compensation not on what was being permitted in exchange for it.

Is this an intelligible, believable and livable story?

Remember, the Government and Robinson have little expectations for the future regarding mining locations. So on the one hand the distinction is between paying just for “existing mining locations” and possibly a few future such locations. And to this end Robinson offers two forms of payment. So why would the Anishinaabe believe that they were receiving compensation for anything but a few future mining locations. What in the treaty is there about sovereignty and governance, except for legal language which Robinson has used knowing the only person who could understand it, Macdonell, has been removed?

Recall, as Justice Hennessy argues, the future increase in the annuity is directly tied to the future productivity of the land that the Crown is obtaining. Why is the compensation linked to the prosperity of the land, but the notion of sovereignty is not? Why would an annuity, versus a lump sum payment, imply a fundamentally different form of sovereignty, governance and way of life? This is not explained.

Not unlike the Royal Proclamation, there appears to be unexplained elements in Robinson’s story and in his treaty documents.

Justice Hennessy argues that the augmentation clause closed the gap of expectations, but did it? Will that not depend upon what those expectations were? She notes that there is an understanding that “in all probability the lands in question would never be settled except in a few localities by mining companies”.

Anishinaabe Consensus

Both the Superior and Huron Chiefs asked for time to consider Robinson’s proposal. [220] Justice Hennessy notes that Anishinaabe leaders needed to consult before presenting a decision.

Neither Chief could unilaterally accept or reject Robinson’s proposal without first discussing it in their own Council. [222]

The Treaties will have a number of provisions including a) land cessions, 2) reserves, 3) harvesting rights, and 4) financial compensation. What consensus would be required if what was at stake was permission and compensation for existing locations and limited future locations? And what kind of consensus would be required if the whole territory, governance, way of life, including fixed residence and agriculture, were involved? The latter sounds like it would require a much greater community consensus from all the communities to be affected than a single all-nighter by a handful of Anishinaable “chiefs and principal men” discussing how the money, which most Anishinaabe still do not use, will be paid.

The point is Robinson’s story appears on the surface to make no sense, except if you accept the idea that he was dealing with “simple-minded Indians”. And then perhaps it all makes sense, the hidden agenda, the unexplained legalities, the need to remove legally-informed participants, the utter absence of the signs of the tradition of shared diplomacy in the text. In other words, it all makes sense, if you presume a non-transparent motive on Robinson’s part. If we do assume a non-transparent, fraudulent attempt at creating the illusion of a common intention, then unfortunately, these are, of course, the ingredients for an invalid treaty.

What level of consensus was there on the Anishinaabe side of the negotiation for provisions with such profound consequences for Anishinaabe communities?

Robinson’s proposals for explicit provisions for reserves and the protection of harvesting rights were more expansive than the standard practice of the Crown. It is likely that Robinson put these issues on the table at the outset in an effort to overcome the anticipated resistance to the low financial offer he had made and to which he was limited. [223]

Justice Hennessy’s account begs the question, how did Robinson’s proposal regarding reserves and harvesting rights “overcome the anticipated resistance” regarding the low financial offer?

After the Superior Anishinaabe agreed to sign, Robinson began referring to two treaties. [225] The Huron delegation holds out for a higher annuity and Robinson responds by repeating the benefits offered, noting that the land “will in all probability never be settled except in a few localities by mining companies”. ¹⁸² [227]

Again Robinson seems to be saying, with the exception of small mining locations, the Anishinaabe way of life will remain undisturbed. In which case, why would the Anishinaabe believe they are offering anything more than permission for precisely those limited locations Robinson is apparently so keen to downplay.

Shingwaukonse repeated his counter proposal and Robinson responded with a take it or leave it ultimatum. ¹⁸⁹ [232]

We might ask, how would that have worked, Robinson’s ‘leave it’ response, if there had been no treaty for the Hurons? What would that mean for the Chiefs, tribes and lands not covered by a treaty? Would it not mean that Robinson would have no land cession, no legitimized mining activity, no permission, none of the things he was mandated to achieve through the treaty? Remember, the Mica Bay incident involved Shingwaukonse and Macdonell of the Lake Huron delegation, not the chiefs from the Lake Superior delegation.

The Huron Chiefs repeat their request for a $10 annuity and raise the issue of land grants for the Métis. ¹⁹¹ Robinson refuses both. Given some were prepared ‘to sign’, all did. ¹⁹³ [234]

In general, it would appear that Robinson’s treaty document records primarily, if not exclusively, the Government intention. The Anishinaabe intention, as the absence of symbols from the shared diplomatic discourse of the last 200 years indicates, appears to be largely absent or significantly disfigured.

Augmentation Purchases Permits or The Power of Permission?

Recall, as Justice Hennessy notes, the augmentation clause is a future-oriented, risk-sharing provision, tied to the future economic prosperity of the land and the revenue capacity of the Government. Is this also the characteristic of what is being purchased and permitted? If what is being purchased are future mining permits, that would seem appropriately commensurate to the augmentation provision. If however what is being purchased is permanent and absolute sovereignty over lands and peoples, then this would appear to be overwhelmingly incommensurate. What was the understanding and intention of the Anishinaabe at the time about these incommensurate terms?

The Treaty indicates Her Majesty “desires to deal liberally and justly with all Her subjects” which might suggest complete powers of governance. Was this the interest that Anishinaabe complaints, petitions, and representations were clamouring for, to become “subjects” of the Crown? And again if there was to be such a major transformation, surely the distinction between purchasing mining permits and absolute sovereignty is worthy of a few words of clarification in a treaty.

Robinson’s Official Report to the Government described the negotiating logic of the augmentation clause as involving a “small annuity and the immediate and final settlement of the matter” which included a “promise of accounting to them for future sales” based upon the Government’s desire to leave “the Indians no just cause of complaint on their surrendering the extensive territory embraced in the treaty”. ²⁰⁰ [251]

This obviously begs the question to what does the phrase the “final settlement of the matter” refer, legitimizing ‘partial locations’, existing and into the future? Or the complete and full surrender of all sovereignty forever?

The difference can be found in the OIC of April 1850 ”either a complete surrender of the territory along the northern shores of the two lakes or a cession only compensated for lands taken up by established mining locations”.²⁰³

Justice Hennessy concludes that “While securing the surrender of title to the mining locations was of primary importance to the Colonial Government, the Province was also constrained by its financial circumstances and had set clear financial parameters for the compensation provisions.” [254]

Conclusion: Valid Renewal or Invalid Violation?

So what would an interpretation rooted in Anishinaabe values of reciprocity and renewal suggest as an intelligible and believable narrative the Anishinaabe could live with? A limited and flexible remuneration going forward in exchange for permission for limited access now and into the future? Or a limited and flexible remuneration in exchange for absolute sovereignty over the entire territory and lives of the Anishinaabe, as the Treaties say, “forever”?

Justice Hennessy states that Robinson was:

…well aware that the Anishinaabe had reached the end of their patience with the repeated incursions into their territory, the endless investigations into their title, and their unanswered and longstanding demands for recognition and fair compensation, particularly as it related to resource exploitation of minerals and timber. [257]

Why is it assumed that the Anishinaabe interest involved more than granting mining and timber permits? How clearly was it explained that what was being financially compensated went well beyond permission for the limited economic development locations which were at the heart of the conflict and part of Robinson’s characterization of future prospects?

Which interpretation of common intention reconciles the interests as we know them?

The logic of the treaty negotiations, given the long-standing relationship and the immediate conflict, appears to centre upon legitimizing the mining permits of the Government by compensating the Anishinaabe given their title to the lands where the mining activity is occuring. There is no clear statement in the Treaties in non-technical legal language regarding the Anishinaabe forfeitng ‘forever’ their power to provide permission in a final act of that power of permission.

Justice Hennessy accepts the idea that the augmentation clause was offered “as an enticement” (as was argued at trial). But an enticement for what?

Again what was the Anishinaabe claim? That they held title to the territories involved, and thus the Government needed their permission and needed to provide compensation to access their territory for mining purposes. Is there anything in the augmentation clause provisions that suggests the Anishinaabe had become knowingly and willfully “subjects” of the Crown? There is apparenty no discussion about sovereignty or about fundamental transformations in the Anishinaabe way of life. There is simply the very legal language of the so-called surrender clause, which given its legal language, the SCC has directed us to interpret in favour of the Indigenous interest.

Justice Hennessy is concerned to determine if the augmentation clause was an “incentive” to signing the Treaty, thus she attempts to determine, in the absence of any recorded evidence, when Robinson introduced the idea of linking augmenting annuities to future revenues from the land, “we must follow the logic of the events to best infer when he might have done that”. [266]

I would suggest this is an indication that Justice Hennessy is conducting a reasoned evaluation of the evidence according to the logic of, what I have called, ‘narrative validity’ to “best infer” what happened.

Justice Hennessy concludes that the quick agreement of the Lake Superior delegation suggests the augmentation clause was part of the early discussion and explains Chief Peau de Chat’s apparent indifference to the amount of the annuity. Furthermore, Justice Hennessy accepts that anticipating resistance Robinson would have made the better (augmentation) offer at the outset to achieve an agreement. [272] Again I would argue such reasoning is an attempt to construct a valid narrative of the common intention that reconciles interests.

As Justice Hennessy recounts “the Treaty represented that the Crown now respected the Anishinaabe’s authority, and that the Crown was ready to pay compensation for access to the territory”. [274]

Robinson knew to persuade Chief Peau de Chat of the fairness of his proposals if he was to fulfil the Government’s priorities to legitimize the mining locations. [275]

If our goal in treaty interpretation is to find the best interpretation of the common intention that reconciles the interests being negotiated, which of the interpretations we are considering makes the most sense as an intelligible, believable and livable narrative?

Is it the interpretation that, in a last and final act, the Anishinaabe exercised its power of permission to extinguish its power of permission ‘forever’, to close the era of negotiated sovereignties reaching back to the era of Covenant Chain diplomacy, the Niagara Councils and the War of 1812, in exchange for a limited and flexible compensation, well below the standard to that time?

Or do we see that the failure to increment the annuity above $4 per person after 1875 is perfectly consistent with another narrative, a narrative of unilateralism, of hidden agendas, of false promises, of systematically distorted communications reaching back to the Royal Proclamation? A story that violates the shared tradition of the Covenant Chain, the Councils of Niagara, the War of 1812, a story which violates the common intention of the parties negotiating at the council fires of 1850. And thus, a story that renders the subsequent treaty documents, for the Robinson Treaties of 1850, invalid.

---

Bibliography and Footnotes

Note: Because this essay has a single source, the Restoule v. Canada Stage One Judgement document, I have chosen a particular style of citation. Since the Judgement document is numerically indexed by paragraph, I have placed throughout this essay numerical paragraph notations in square brackets (ex., ‘[10]’ indicates paragraph 10) referring to the Restoule Stage One Judgement paragraph numerical index.

Within the original judgement by Justice Hennessy, there are her own footnotes. I have chosen to simply duplicate those footnotes including their original numerical indices to facilitate cross-referencing. However, because some of the original footnotes were simply ‘Ibid’ references to footnotes I did not use, I have taken the unusual step of including here both the footnotes I have used and those I have not used to hopefully make following Justice Hennessy’s footnotes more convenient. The original footnotes not used in my thesis text appear in boxes below.

Also because the original footnotes are incorporated into my re-arrangement of the original judgement’s organization, I have organized the footnotes into sections using my headings with Justice Hennessy’s original structural headings (within round brackets) beneath. Again hopefully this facilitates cross-referencing.

Robinson Superior Treaty 1850, Retrieved from https://www.rcaanc-cirnac.gc.ca/eng/1100100028978/1581293296351

Restoule v. Canada (Attorney General), 2018 ONSC 7701. Retrieved from https://nncfirm.ca/wp-content/uploads/2019/02/Restoule-v.-Canada-Attorney-General-ONSC–7701-Reasons-for-Judgment-Sta….pdf

Part 1: Common Intention

Restoule Stage One Judgement

(I. Introduction)

1 A transcription of the Robinson Huron Treaty and Robinson Superior Treaty can be found at Appendix “A” and Appendix “B” of this judgment, respectively.
2 Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
3 Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
4 Dr. Paul Driben, ethnohistorian qualified as an expert in Anishinaabe cultural traditions, on the details of the Anishinaabe historical use and occupancy of the land, in cross-cultural understandings of both the Anishinaabe and non-Anishinaabe/Crown actors in the treaty-making process.
5 Ms. Gwynneth Jones, historian qualified as having expertise with respect to the interpretation of historical documents, the interpretation of the interaction between the Canadian government and Aboriginal peoples.
6 Mr. James Morrison, ethnohistorian qualified as an expert on the Robinson Treaties, with expertise in treaty- making and land settlement in the context of treaty-making in what is now Ontario and qualified to give expert evidence on the social, political, and historical context bearing on the negotiation and 19th century implementation of the Robinson Treaties of 1850, including Indigenous-Crown relations and Anishinaabe history and culture.
7 Mr. Alan Corbiere, ethnohistorian qualified as an expert in the oral history and written record of the wampum and Covenant Chain relationship between the Anishinaabe and the Crown from the Anishinaabe perspective during the 18th and 19th centuries.
8 Dr. Heidi Bohaker, historian and ethnohistorian qualified as an expert in the principles of Anishinaabe governance, doodemag, alliances, and treaty-making, with a specific expertise in the Anishinaabe cultural and political contexts that may have informed Anishinaabe expectations of treaty-making with the Crown and the Colonial Government.
9 Dr. Heidi Kiiwetinepinesiik Stark, political scientist qualified with expertise in Anishinaabe jurisprudence and the application of laws through stories and metaphors to direct diplomacy and governance of Anishinaabe nations in their relations and treaty-making with the Crown and US Governments.
10 Dr. Carl Beal, economist and economic historian qualified as an expert on the economic aspects of historical treaties, including treaties in what is now Ontario.
11 Dr. Alain Beaulieu, ethnohistorian qualified to give evidence on agreements and events between the British, French, and Indigenous people from a colonial and Quebec perspective, with a particular emphasis on Indigenous- European relations in the first era of New France and the first decades of the British regime after 1763.
12 Dr. Douglas McCalla, University Professor Emeritus at the University of Guelph, qualified as an expert with respect to the social and economic history of Upper Canada/Ontario in the mid-19th century.
13 Mr. Jean-Philippe Chartrand, anthropologist and ethnohistorian qualified to provide opinion evidence regarding the intentions and understandings of the parties to the Robinson Treaties and related historical events both before and after the making of the Treaties.
14 Dr. Alexander von Gernet, anthropologist and ethnohistorian qualified to provide opinion evidence with respect to the historical context for the making of the Robinson Treaties, including mining in the upper Great Lakes region in the 1840s, the history of early land treaties in present-day Ontario and northern United States, history of the formation of the Robinson Treaties, including the objectives and understandings of the Anishinaabe and Crown actors as reflected in this historical record.
15 Elder Fred Kelly, Elder Rita Corbiere, Elder Irene Stevens, and Elder Irene Makedebin, as well as Chief Dean Sayers, Chief Duke Peltier, and Chief Angus Toulouse all gave testimony in this case.

• 16 See Mitchell v. Minister of Natural Revenue, 2001 SCC 33, 2001 1 S.C.R. 911, at para. 39.
• 17 See R v. Marshall, 1999 3 S.C.R. 456, at para. 11.

The Principles of Treaty Interpretation

(VIII. Principles of Treaty Interpretation)

• 234 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 20; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 71.
• 235 R. v. Marshall, [1999] 3 S.C.R. 456, at para. 14, Binnie J, and para. 78, McLachlin CJ, dissenting. While McLachlin CJ was writing in dissent in Marshall, she was in agreement with the majority on the principles of treaty interpretation. See Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 71, 73 – 77.
• 236 R. v. Marshall, [1999] 3 S.C.R. 456, at para. 78. See R. v. Sundown, [1999] 1 S.C.R. 393; R. v. Simon, [1985] 2 S.C.R. 387; Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025; R. v. Badger, [1996] 1 S.C.R. 771; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Fletcher v. Ontario, 2016 ONSC 5874, at paras. 118 – 120, where Lederer J. reviews and summarizes the Supreme Court of Canada jurisprudence on the principles of treaty interpretation, including Marshall.

237 R. v. Marshall, [1999] 3 S.C.R. 456, at paras. 14, 78, citing Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025, at p. 1069.

• 238 R. v. Horseman, [1990] 1 S.C.R. 901. See Fletcher v. Ontario, 2016 ONSC 5874, at para. 119.
• 239 R. v. Marshall, [1999] 3 S.C.R. 456, at para. 82.
• 240 Ibid, at para. 11. See R. v. Taylor and Williams (1982), 34 O.R. (2d) 360 (C.A.). See also Sioui v Quebec (Attorney General), [1990] 1 S.C.R. 1025, at p. 1045.
• 241 R. v. Marshall, [1999] 3 S.C.R. 456, at para. 83.
• 242 R. v. Badger, [1996] 1 S.C.R. 771, at para. 52, quoting Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (1880), at pp. 338 – 342. See R. v. Marshall, [1999] 3 S.C.R. 456, at para. 14.
• 243 R. v. Marshall, [1999] 3 S.C.R. 456, at para. 83, citing Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025, at p. 1069.
• 244 R. v. Marshall, [1999] 3 S.C.R. 456, at para. 83. See R. v. Simon, [1985] 2 S.C.R. 387, pp. at 402 – 403; R. v. Sundown, [1999] 1 S.C.R. 393, at paras. 30, 33.

245 R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1106.   
246 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 71.  

• 247 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 20; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 71.

Positions of the Parties on Common Intention

(IX. The Positions of the Parties and the Issue in Dispute)

248 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 73 – 77; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, at para. 20.  
249 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 76, citing R. v. Marshall, [1999] 3 S.C.R. 456, at para. 52.
250 The Robinson Superior Treaty, dated 7 September 1850, see Appendix A.
251 R v Marshall, [1999] 3 S.C.R. 456, at paras. 14, 78.

Finding the Common Intention

(X. Finding the Common Intention that Best Reconciles the Parties’ Interests)

• 252 Michael Coyle, “As Long as the Sun Shines: Recognizing That Treaties Were Intended to Last” in John Borrows & Michael Coyle, eds. The Right Relationship: Reimagining the Implementation of Historic Treaties (Toronto: University of Toronto Press, 2017), at pp. 57 – 58.

253 See R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915, at para. 18.
254 R. v. Badger, [1996] 1 S.C.R. 771, at para. 41. 
255 Stark Report, Trial Exhibit 040, at paras. 45 – 48; Stark Testimony, Final Transcript (November 10, 2017), Vol. 28: 4037 – 4040.

• 256 Driben Report, Trial Exhibit 003, at pp. 28 – 29.
  257 Bohaker Report, Trial Exhibit 032, at para. 99. 258 Driben Reply Report, Trial Exhibit 004, at p. 10. 259 Corbiere Report, Trial Exhibit 026, at paras. 106 – 107. 260 See Stark Report, Trial Exhibit 040, at para. 48; Stark Testimony, Final Transcript (November 10, 2017), Vol. 28: 4037 – 4040.

• 261 Note the discussion in Chancellor Boyd’s opinion in St Catherine’s Milling & Lumber Co v. R., [1885] O.J. No. 67, 10 O.R. 196 (H Ct. J): “The liberal treatment of the Indians… [is] the outgrowth of that benevolent policy [the policy flowing from the Royal Proclamation] which before Confederation attained its highest excellence in Upper Canada”.

• 262 The Royal Proclamation, dated 7 October 1763, reprinted in Clarence S. Bringham, British Royal Proclamations Relating to America, 1603 – 1783 ed. (New York: Burt Franklin, 1911), Joint Book of Primary Documents, Trial Exhibit 01-TAB–0037.

• 263 Elder Corbiere read her translation from the witness box in open court. That day, court was held on Manitoulin Island and many Treaties’ beneficiaries, including many language speakers, were present.

264 Report of W. B. Robinson to Colonel Bruce, Superintendent General of Indian Affairs, on transmitting the Robinson Treaty, dated 24 September 1850 at 18, Joint Book of Primary Documents, Trial Exhibit 01-TAB-1680.  
265 The Royal Proclamation, dated 7 October 1763, reprinted in Clarence S. Bringham, British Royal Proclamations Relating to America, 1603 – 1783 ed. (New York: Burt Franklin, 1911), Joint Book of Primary Documents, Trial Exhibit 01-TAB-0037.
266 Mitchell v Minister of National Revenue, 2001 SCC 33, [2001] 1 S.C.R. 33, at paras. 138 – 139, Binnie J., concurring.

Honour of the Crown

(XI. The Honour of the Crown)

267 Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, at para. 21.  

• 268 Ibid, at paras. 21 – 22; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 66 – 67. - 269 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 68, 73.

270 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 32. See Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 66 – 67. According to John Borrows, “the British inserted statements into the Proclamation that claimed ‘dominion’ and ‘sovereignty’ over the territories First Nations occupied… Therefore, the Proclamation illustrated the British government’s attempt to exercise sovereignty over First Nations…”: see John Borrows, “Constitutional Law from a First Nations Perspective” (1994), 28:1 UBC L Rev 1, at pp. 17 – 19.  

• 271 See Mitchell v. Minister of Natural Resources, 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 9.

272 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 1.  
273 Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, at para. 24; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42.  
274 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paras.73(4), 75 – 76.  
275 Ibid, at para. 74; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 18.
276 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 73 – 75. See Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 43.

• 277 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 66 – 67; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 20.
• 278 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 14.

279 I have no information on whether or to what extent the parties before the court engaged in any negotiations.

Fiduciary Duties

(XII. Fiduciary Duty)

• 280 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 73.

281 Peter Ballantyne Cree Nation v. Canada (Attorney General), 2016 SKCA 124, 485 Sask. R. 162, at para. 83, citing Jamie D. Dickson, The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada (Saskatoon, Saskatchewan: Purich Publishing Limited, 2015), at p. 91.  
282 Wewaykum Indian Band v Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at para. 94.
283 Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, at para. 44.  
284 Ibid.
285 Ibid.  
286 See ibid, at para. 66.  
287 Ibid, at para. 72.
288 Ibid, at para. 53.  
289 Mitchell v. Minister of National Revenue, 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 138, Binnie J. concurring.
290 Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at paras. 44, 48.  

• 291 Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, at para. 47. See Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at para. 79.

Part II: Context & Anishinaabe Intent

(II. Who Were The Anishinaabe of the Upper Great Lakes Region?)

18 In the mid-1800s, there were Odawas and Potawatomis resident on Manitoulin Island; however, most the Indigenous people along the two northern Great Lakes were Ojibwe. “Chippewa” is used primarily in the United States and southern Canada. I use “Anishinaabe”, as it is the name used by the people themselves and adheres to contemporary scholarly practices; further, the language of the trial used the term “Anishinaabe”. I use the current reigning Anishinaabe orthography, which is called “double vowel” or the “Fiero System”: see Bohaker Testimony, Final Transcript (November 7, 2017), Vol. 25: 3538.
19 See “A Map of the Province of Upper Canada describing all the new Townships, Settlements, etc.”, dated 1838, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0263; “Map of Lake Huron”, dated August 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0634; “Map of Lake Superior”, dated August 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0635.

• 20 See Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0701, at p. 3.
• 21 Bohaker Report, Trial Exhibit 032, at para. 7.

22 Elder Kelly Testimony, Final Transcript (November 1, 2017), Volume 21: 2866 – 2867, 2934.  
23 Stark Testimony, Final Transcript (November 10, 2017), Vol. 28: 4033 – 4036, 4038.
24 Bohaker Report, Trial Exhibit 032, at paras. 11 – 16.  
25 Ibid, at para. 8.  
26 Ibid, at para. 76.  
27 Stark Report, Trial Exhibit 040, at para. 89.

• 28 See Elder Kelly Testimony, Final Transcript: 2917 – 2918; 2998 – 3000; Bohaker Report, Trial Exhibit 032, at para. 74.

29 Bohaker Testimony, Final Transcript (November 3, 2017), Vol. 23: 3114 – 3140.   
30 The place names ascribed on 17th century maps made by Jesuit Louis Nicolas are consistent with the territories of Common Councils identified on the maps of the province of Canada made by representatives of the Colonial Government in 1849.  

• 31 Driben Report, Trial Exhibit 003, at pp. 34 – 35.

32 Henry Rowe Schoolcraft, Personal Memoir of Thirty Years Residence with Indian Tribes on the American Frontier (Philadelphia: Lippincott, Grambo and Co., 1851), at p. 110, Joint Book of Secondary Documents, Trial Exhibit VV-SEC-0017.
33 Janet Chute, The Legacy of Shingwaukonse: A Century of Native Leadership (Toronto: University of Toronto Press, 1998), at p. 4, Joint Book of Secondary Documents, Trial Exhibit VV-SEC-0437.  
34 Garden River remains today as the home of a proud First Nation close to Sault Ste. Marie, along the St. Mary’s River. One week of trial proceedings took place in this community.  
35 See Janet Chute, The Legacy of Shingwaukonse: A Century of Native Leadership (Toronto: University of Toronto Press, 1998), at pp. 3 – 4, Joint Book of Secondary Documents, Trial Exhibit VV-SEC-0437.  
36 Ibid.  
37 Bohaker Report, Trial Exhibit 032, at para. 19.
38 Driben Report, Trial Exhibit 003, at pp. 22 – 23.
39 Bohaker Report, Trial Exhibit 032, at para. 96.
40 Corbiere Report, Trial Exhibit 026, at paras. 22 – 23.
41 Bohaker Report, Trial Exhibit 032, at para. 129.

• 42 See Bohaker Report, Trial Exhibit 032, at paras. 130 – 134.
• 43 Chartrand Report, Trial Exhibit 066, at p. 54.
• 44 Chartrand Testimony, Final Transcript (January 18, 2018), Vol. 46: 6690 – 6694.

45 The Jesuits documented lavish gift exchanges between bands at gatherings as early as 1642: see Bohaker Report, Trial Exhibit 032, at para. 100.  
46 Bohaker Report, Trial Exhibit 032, at para. 100.  

• 47 Driben Report, Trial Exhibit 003, at pp. 28 – 29.

48 Bohaker Report, Trial Exhibit 032, at para. 99.  

• 49 See Corbiere Report, Trial Exhibit 026, at paras. 21.
• 50 Ibid, at paras. 195 – 197.

51 Stark Report, Trial Exhibit 040, at para. 70, quoting Anishinaabe Elder and knowledge holder Edward Benton- Banai.  

• 52 Stark Report, Trial Exhibit 040, at para. 91.
• 53 Ibid, at para. 4c.
• 54 Ibid, at p. 59, para. 8.

(Note: footnotes 55 and 56 appear in the ‘Written Record’ section of the Restoule Judgement) - 55 Ibid, at para. 99.
- 56 See John Borrows, Canada’s Indigenous Constitution (Toronto, University of Toronto Press, 2010), at p. 79, Joint Book of Secondary Documents, Trial Exhibit VV-SEC–0564.

Written Record 1763–1849

(III. The Written Record 1763–1849: From the Royal Proclamation to the Vidal-Anderson Commission)

57 Stark Report, Trial Exhibit 040, at para. 99.  
58 See R. v. Marshall, [1999] 3 S.C.R. 456, at para. 11.
59 Corbiere Report, Trial Exhibit 026, at para. 342.  
60 Ibid, at para. 107.
61 After 1791, the government in what is now Canada was separated into the Imperial Government, personified by the Governor General (representing the Crown), and the Colonial Government, consisting of an appointed Executive Council (or cabinet), an appointed legislative council and an elected legislative assembly.
62 The Royal Proclamation, dated 7 October 1763, reprinted in Clarence S. Bringham, British Royal Proclamations Relating to America, 1603 – 1783 ed. (New York: Burt Franklin, 1911), Joint Book of Primary Documents, Trial Exhibit 01-TAB-0037.

• 63 Brian Slattery, “The Aboriginal Constitution” (2014) 67:1 S.C.L.R. 319, at p. 326.

64 St. Catharines Milling & Lumber Co. v. R. (1887), 13 S.C.R. 577.  
65 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257.  
66 Ibid, at para. 69.  
67 Morrison Report, Trial Exhibit 014, at para. 443.
68 See Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 66 – 67; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, at para. 21, Karakatsanis J., and para. 59, Abella J, dissenting on other grounds.  
69 Morrison Report, Trial Exhibit 014, at para. 445.
70 Transcription of Speech by William Johnson to the Western Nations, dated 31 July 1764, reprinted in The Papers of Sir Williams Johnson, Volume XI (Albany, New York: The University of the State of New York, 1953) at 309 – 310, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0054.  

• 71 Morrison Report, Trial Exhibit 014, at para. 504.

72 Corbiere Report, Trial Exhibit 026, at para. 21.  
73 Morrison Report, Trial Exhibit 014, at para. 445.  

• 74 Instructions for Brigadier-General Sir John Johnson, Superintendent General & Inspector General of Indian Affairs in the Northern District or North America, dated 6 February 1783, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0098.

75 Corbiere Report, Trial Exhibit 026, at para. 19.  
76 Ibid.  
77 See Diary of T.G. Anderson, entries dated 13 September 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0657.

• 78 Bagot Commission Report, Appendix “T” to the Sixth Volume of the Journals of the Legislative Assembly of the Province of Canada, 1847, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0499, at electronic p. 363.
• 79 See e.g. Diary of T.G. Anderson, entries dated 13 September 1849 and 7 November 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0657.
• 80 For example, the alliance relationship that had been important to the British was significantly tested as the British began to make unilateral geopolitical boundary changes as a result of their independent negotiations with the Americans. This included moving the location of Council Fires without consultation.

81 It was agreed that the method of compensating for the surrender of reserve lands was not in issue or relevant in this trial.  
82 Bagot Commission Report, Appendix “T” to the Sixth Volume of the Journals of the Legislative Assembly of the Province of Canada, 1847, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0499, at electronic p. 359.
83 Letter from A. Vidal to D.B. Papineau, dated 27 April 1846, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0410, transcription at Trial Exhibit 01A-TAB-0410.
84 Order in Council, dated 9 May 1846, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0420.  
85 Letter from T.E. Campbell to T.G. Anderson, dated 31 July 1848, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0599, transcription at Trial Exhibit 01A-TAB-0599, transcription at Trial Exhibit 01A-TAB-0599. 86 Letter from T.G. Anderson to T.E. Campbell, dated 9 October 1848 (appended unreferenced newspaper article), Joint Book of Primary Documents, Trial Exhibit 01-TAB-0608, transcription at Trial Exhibit 01A-TAB-0608.  
87 Report of a Committee of the Executive Council on Land Applications, dated 10 October 1845, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0370, transcription at Trial Exhibit 01A-TAB-0370.
88 Transcription of Letter from D.B. Papineau to A. Vidal, dated May 1846, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0415.  
89 D.B. Papineau, “Report of the Commissioner of Crown Lands”, dated 4 November 1847, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0570, transcription at Trial Exhibit 01A-TAB-0570.  
90 “Report from the Commissioner of Crown Lands”, quoting A. Vidal, dated 26 April 1848, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0587, transcription at Trial Exhibit 01A-TAB-0587.  
91 Letter from T.E. Campbell to T.G. Anderson, dated 31 July 1848, Joint Book of Primary Documents, Trial Exhibit 0598.  
92 “Report of Commissioner of Crown Lands”, dated 28 July 1849, with Order in Council, dated 4 August 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0632.  
93 Ibid.
94 Morrison Report, Trial Exhibit 014, at para. 157.  
95 Letter from Chief Shingwaukonse to George Ironside, Indian Superintendent, dated 20 February 1846, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0414.  
96 Letter from A. Vidal to D.B. Papineau, dated 27 April 1846, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0412.
97 Address of Chief Shingwaukonse to “Great Father” (Lord Cathcart), dated 10 June 1846, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0437, transcription at Trial Exhibit 01A-TAB-0437.  
98 Memorial of Chiefs of Mahnetooahning in Reference to the White People, dated 10 August 1846, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0452, transcription at Trial Exhibit 01A-TAB-0452. 
99 Ibid.  
100 See Memorial of Indians at the Sault Ste. Marie, dated 5 July 1847, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0548, transcription at Trial Exhibit 01A-TAB-0548.
101 Ibid.  
102 Ibid.  
103 “Arrival of His Excellency the Governor General”, British Colonist (19 October 1847), Joint Book of Primary Documents, Trial Exhibit 01-TAB-0569.  
104 Minutes of a Council held by T.G. Anderson, 18 August 1848, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0604, transcription at Trial Exhibit 01A-TAB-0604.  
105 Letter from T.G. Anderson to T.E. Campbell, dated 9 October 1848, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0608, transcription at Trial Exhibit 01A-TAB-0608.
106 Letter from A. Macdonell (Attorney) to T.E. Campbell, dated 21 April 1849, Trial Exhibit 01-TAB-0609 at 4s – 4w.
107 “Appeal from the Chippewa Indians to the British Government”, Montreal Gazette (7 July 1849), Joint Book of Primary Documents, Trial Exhibit 01-TAB-0629, transcription at Trial Exhibit 01A-TAB-0629.  
108 See Chartrand Report, Trial Exhibit 065, at p. 79.
109 Minutes of a Council held by T.G. Anderson on Friday, 18 August 1848, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0604, transcription at Trial Exhibit 01A-TAB-0604.  

• 110 Ibid.

111 Letter from T.G. Anderson to T.E. Campbell, dated 9 October 1848 (appended unreferenced newspaper article), Joint Book of Primary Documents, Trial Exhibit 01-TAB-0608, transcription at Trial Exhibit 01A-TAB-0608. An American newspaper reported this version of Chief Shingwaukonse’s speech, as translated by Louis Cadotte. There are similarities and differences between the newspaper version and the Council Minutes on Chief Shingwaukonse’s speech, including this final paragraph of the newspaper account. Ms. Jones noted that this last paragraph concurs with Anderson’s report in affirming the willingness of Chief Shingwaukonse to negotiate for a purchase of lands and is consistent with earlier speeches and petitions in which Chief Shingwaukonse requested “a share of what is found on my Lands”: see Jones Report, Trial Exhibit 010, at p. 83; Address of Chief Shingwaukonse to “Great Father” (Lord Cathcart), dated 10 June 1846, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0437, transcription at Trial Exhibit 01A-TAB-0437.
112 Minutes of a Council held by T.G. Anderson on Friday, 18 August 1848, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0604, transcription at Trial Exhibit 01A-TAB-0604.  
113 Ibid.  
114 Ibid.  
115 Transcript of Letter from T.G. Anderson to T.E. Campbell, dated 28 August 1848, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0606.  116 Ibid.

The Vidal-Anderson Commission

(IV. The Vidal-Anderson Commission)

• 117 Minutes of Executive Council, dated 4 August 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB- 0638, transcription at Trial Exhibit 01A-TAB–0638.

118 Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0701, Appendix A, at p. 9.
119 Ibid, at p. 4.  
120 “Father Frémiot’s Report to His Superior in New York”, dated 18 October 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0669. 121 Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0701, at p. 4. See Diary of T.G. Anderson, entry dated 5 September 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0657.  
122 Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0701, Appendix A, at pp. 10 – 11.
123 Ibid, at p. 4.  

• 124 Ibid, at p. 4.

125 “Father Frémiot’s Report to His Superior in New York”, dated 18 October 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0669; Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0701, at pp. 4, 7, 11.  
126 Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0701, at p. 2.
127 Ibid, at pp. 2 – 3.  
128 Ibid, at p. 4.  
129 Ibid, at p. 4.  
130 Ibid, at p. 5.  
131 Ibid, at p. 5.  
132 Ibid, at p. 5.
133 Ibid, at p. 6.  

• 134 Ibid, at p. 5.

135 Ibid, at p. 8.  
136 Ibid, at p. 6 – 7.

• 137 Ibid, at p. 5.

138 Driben Report, Trial Exhibit 003, at footnote 320; Driben Expert Reply Report, Trial Exhibit 004, at p. 19.

• 139 Address of Chief Shingwaukonse to “Great Father” (Lord Cathcart), dated 10 June 1846, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0437, transcription at Trial Exhibit 01A-TAB–0437.

140 Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0701, at p. 5.  
141 Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0701, at p. 5.  
142 Chartrand Report, Trial Exhibit 065, at p. 121.  
143 “Appeal from the Chippewa Indians to the British Government”, Montreal Gazette (7 July 1849), Joint Book of Primary Documents, Trial Exhibit 01-TAB-0629, transcript at Trial Exhibit 01A-TAB-0629.  
144 Minutes of a Council held by T.G. Anderson on Friday, 18 August 1848, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0604, transcription at Trial Exhibit 01A-TAB-0604.

Mica Bay Incident

(V. The Mica Bay Incident and Instructions to Robinson)

145 Vidal prepared a Supplemental Report, dated 17 December 1850, that was delivered to Superintendent General Colonel Bruce on 24 December 1850; see Letter from A. Vidal to J.H. Price, dated 17 December 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0714.

• 146 Chartrand Report, Trial Exhibit 065, at p. 137. See Executive Council Minutes, dated 19 November 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0686.

147 Order in Council, dated 19 November 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0681.  
148 Chartrand Report, Trial Exhibit 065, at p. 137.
149 Letter from James Hopkirk (Provincial Secretary’s Office) to W.B. Robinson, dated 6 July 1846, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0446.  
150 Letter from W.B. Robinson to Colonel Bruce, dated 10 January 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0735.  
151 Letter from Allan Macdonell to Colonel Bruce, dated 19 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0718; Letter from Allan Macdonell to James Leslie, dated 23 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0722; Letter from W.B. Robinson to Colonel Bruce, dated 10 January 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0735.  
152 Allan Macdonell to George Brown, dated 30 April 1853, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0977.
153 Letter from W.B. Robinson to Colonel Bruce, on transmitting the Robinson Treaties, dated 24 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-1680.  

• 154 See Letter from W.D. Cockburn (Office of the Montreal Mining Company, Montreal) to Commissioner of Crown Lands, dated 30 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0727.

155 Letter from W.B. Robinson to Colonel Bruce, dated 10 January 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0735.

• 156 Order in Council, dated 11 January 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0738, transcription at Trial Exhibit 01A-TAB–0738.
• 157 Ibid.
• 158 Transcription of an Order in Council from the Committee of the Executive Council to James Leslie (Provincial Secretary), dated 16 April 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0766.

159 Ibid.  
160 See Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0701, at p. 3.

(Note: footnote 161 appears in the ‘Treaty Council’ section of the Restoule Judgement)

• 161 See Order in Council, dated 11 January 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0738, transcription at Trial Exhibit 01A-TAB–0738.

Part III: The Treaty Council of 1850

(VI. The Treaty Council of 1850)

162 Transcription of Letter from G. Simpson (HBC Governor) to W.B. Robinson, dated 10 May 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0776.  
163 Report of Commissioners A. Vidal and T.G. Anderson, dated 5 December 1849, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0701, at p. 3; Letter from W.B. Robinson to Colonel Bruce, on transmitting the Robinson Treaties, dated 24 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-1680.

• 164 Diary of W.B. Robinson, entry dated 18 August 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB- 0857, transcription at Trial Exhibit 01A-TAB–0857.

165 Elder Irene Stevens Testimony, Final Transcript (October 31, 2017), Vol. 20: 2752 – 2753, 2755 - 2756.  
166 During this period, Robinson may also have met with some Huron Chiefs, although that cannot be specifically determined from the record. We also know that Chief Peau de Chat, the spokesman for the Superior delegation was quite ill during this time: see Diary of W.B. Robinson, entries dated 21 August 1850 – 1 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0857, transcription at Trial Exhibit 01A-TAB-0857.  
167 Diary of W.B. Robinson, entry dated 23 August 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB- 0857, transcription at Trial Exhibit 01A-TAB-0857.  
168 Diary of W.B. Robinson, entries dated 21 August 1850 – 1 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0857, transcription at Trial Exhibit 01A-TAB-0857.
169 Diary of W.B. Robinson, entries dated 30 – 31 August 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0857, transcription at Trial Exhibit 01A-TAB-0857. 

• 170 Diary of W.B. Robinson, entry dated 1 September 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB–0857, transcription at Trial Exhibit 01A-TAB–0857.

171 Diary of W.B. Robinson, entry dated 3 September 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0857, transcription at Trial Exhibit 01A-TAB-0857. 

• 172 There was an account of the first day of the Treaty Council published in The British Colonist on October 1, 1850, which included a description of the ceremonies that occurred, including a pipe ceremony and possibly a smudge: see “The Indian Treaty”, The British Colonist (1 October 1850), Joint Book of Primary Documents, Trial Exhibit 01- TAB–0859, transcription at Trial Exhibit 01A-TAB–0859.
• 173 Morrison Report, Trial Exhibit 014, Appendix “D”, at pp. 109 – 115. See “The Indian Treaty”, The British Colonist (1 October 1850), Joint Book of Primary Documents, Trial Exhibit 01-TAB–0859, transcription at Trial Exhibit 01A-TAB–0859.
• 174 Diary of W.B. Robinson, entry dated 5 September 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB–0857, transcription at Trial Exhibit 01A-TAB–0857.
• 175 Letter from W.B. Robinson to Colonel Bruce, on transmitting the Robinson Treaties, dated 24 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–1680, at p. 17.
• 176 Ibid, at p. 18.

177 Dr. Driben disagrees with the timing of this explanation (i.e. he posits that it was probably September 6, 1850): see Driben Report, Trial Exhibit 003, at pp. 118 – 119. I do not find it a matter that requires me to find one way or the other; whether it was said September 5 or 6 does not impact on other findings.  
178 Letter from W.B. Robinson to Colonel Bruce, on transmitting the Robinson Treaties, dated 24 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-1680, at p. 17.
179 Diary of W.B. Robinson, entry dated 5 September 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0857, transcription at Trial Exhibit 01A-TAB-0857.  
180 Diary of W.B. Robinson, entry dated 6 September 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0857, transcription at Trial Exhibit 01A-TAB-0857.  
181 Ibid.  

• 182 Letter from W.B. Robinson to Colonel Bruce, on transmitting the Robinson Treaties, dated 24 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–1680, at p. 17; Diary of W.B. Robinson, entry dated 6 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0857, transcription at Trial Exhibit 01A- TAB–0857.

183 Diary of W.B. Robinson, entry dated 6 September 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0857, transcription at Trial Exhibit 01A-TAB-0857.  
184 Diary of W.B. Robinson, entry dated 7 September 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0857, transcription at Trial Exhibit 01A-TAB-0857. 
185 Ibid.  
186 Ibid.  
187 Driben Report, Trial Exhibit 003, at p. 121. 
188 Diary of W.B. Robinson, entry dated 7 September 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0857, transcription at Trial Exhibit 01A-TAB-0857. 

• 189 Ibid.

190 Ibid.  

• 191 Letter from W.B. Robinson to Colonel Bruce, on transmitting the Robinson Treaties, dated 24 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–1680, at pp. 18, 20; Diary of W.B. Robinson, entry dated 9 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–0857, transcription at Trial Exhibit 01A- TAB–0857.

192 Diary of W.B. Robinson, entry dated 9 September 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0857, transcription at Trial Exhibit 01A-TAB-0857.  

• 193 Letter from W.B. Robinson to Colonel Bruce, on transmitting the Robinson Treaties, dated 24 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–1680, at p. 18.

194 Morrison Report, Trial Exhibit 014, at para. 351.  
195 Order in Council, dated 29 November 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0883.
196 The Robinson Superior Treaty, dated 7 September 1850, see Appendix A.  197 The Robinson Huron Treaty, dated 9 September 1850, see Appendix B.
198 The Robinson Superior Treaty, dated 7 September 1850, see Appendix A. The Robinson Huron Treaty includes an almost identical provision, with slight differences: see The Robinson Huron Treaty, dated 9 September 1850, see Appendix B. These differences were not raised as material differences for the purpose of this stage of the hearing.  
199 The translations and transcriptions of the Anishinaabe Chiefs’ speeches at the Treaty Council (which were in the possession of the Crown) have been lost.

• 200 Letter from W.B. Robinson to Colonel Bruce, on transmitting the Robinson Treaties, dated 24 September 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB–1680, at p. 18 – 19.

201 Diary of W.B. Robinson, entries dated 30 – 31 August 1850, Joint Book of Primary Documents, Trial Exhibit 01- TAB-0857, transcription at Trial Exhibit 01A-TAB-0857.  
202 Chartrand Report, Trial Exhibit 067, at p. 62.  

• 203 Chartrand Report, Trial Exhibit 065, at p. 170

204 Order in Council, dated 11 January 1850, Joint Book of Primary Documents, Trial Exhibit 01-TAB-0738, transcription at Trial Exhibit 01A-TAB-0738.
205 See “Discovery Questions and Answers Posed to Canada”, dated 12 January 2018, Trial Exhibit 063 at Question #427a.  
206 Chartrand Report, Trial Exhibit 065, at p. 218.  
207 von Gernet Report, Trial Exhibit 079, at p. 205.