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This website will change as a result of the dissolution of Indigenous and Northern Affairs Canada. Consult the new Crown-Indigenous Relations and Northern Affairs Canada home page or the new Indigenous Services Canada home page.
by Robert J. Surtees, Treaties and Historical Research Centre, Indian and Northern Affairs Canada, 1986
PDF Version (160 Kb, 38 pages)
The opinions expressed by the author in this report are not necessarily those of the Department of Indian and Northern Affairs Canada.
Three separate and large parcels of land in southern and central Ontario were acquired by the Government of Canada in 1923. Known collectively as the Williams Treaties, the agreements which provided for these acquisitions concerned the following areas of land:
Several points concerning these agreements are noteworthy.
These several considerations, either singly or combined make the Williams agreements unique in the field of land cessions in Ontario. They resulted because of several incidents, errors and crises that occurred between 1783 and 1923.
The need for land cession agreements was asserted in 1763, when the British Crown issued the Royal Proclamation of 1763. That important document has been the object of many studiesFootnote 3 and therefore need not be discussed at length here. It should be noted, however, that the British Crown decreed that the interior of North America – between the Appalachian highland and the Mississippi River – should be an Indian Territory, and that white penetration of it should stop, at least temporarily. In terms of Canadian territory as determined by the results of the American Revolution, this meant the land lying north of the international boundary and westward of a line drawn from the south shore of Lake Nipissing to the point at which the 45 parallel of latitude crossed the St. Lawrence River.Footnote 4 It should be noted further that the Royal Proclamation also provided that lands within that Indian Territory could be acquired by the Crown if the Indian occupants agreed to relinquish it.Footnote 5 That was to be done at a formal council, summoned for the purpose of taking such a land surrender, attended by representatives of the Crown and of the Indian bands who occupied the tract in question.
The first of these agreements involving Canadian territory took place in 1764 and 1781 and involved the land on the left bank of the Niagara River. Further cessions – popularly known as "treaties" – allowed the Crown in Canada to acquire lands on the north shore of the upper St. Lawrence River and Lake Ontario between Montreal and the Trent River, and land lying between the head of Lake Ontario and Lake Erie, running from the Niagara River to the Thames River. These agreements were made in 1783 and 1784 for the purpose of providing settlement areas for the Loyalists who sought refuge in Canada after the American Revolution. The circumstances surrounding these agreements have been examined elsewhere.Footnote 6
Two considerations inclined British officials in Canada to seek extensions of these agreements. First, there was the desire to provide for an unbroken line of settlement along the shore of Lake Ontario between the Trent River and the head of the lake; second, it was also considered advisable to have an alternate route to the interior, other than the Ottawa River or the Lake Erie – Detroit River – St. Clair River. Such an alternative was possible by travelling the Humber River – Holland River – Lake Simcoe route (known as the Toronto Carrying Place) to the east end of Georgian Bay. Such a route would have both military and commercial uses.
The northern and western most portion of the Toronto – Georgian Bay route was apparently secured by a treaty arranged in 1785 by John CollinsFootnote 7, the Deputy-Surveyor General who arranged for passage between the Narrows at Lake Couchiching and Matchedash Bay via the Severn River. The remainder of that route, from present Toronto to Lake Simcoe and the lands of Lake Ontario's north shore became the object of negotiations in 1787-88, when Governor Dorchester directed Sir John Johnson, the Superintendent General of Indian Affairs:
to take such steps with the Indians concerned, as may be necessary to establish a free and amicable right for Government to the interjacent lands, not yet purchased, on the north of Lake Ontario, for that purpose as well as to such part of the Country, as may be necessary on both sides of the proposed communication from Toronto to Lake Huron.Footnote 8
It was this direction that brought Sir John to meet an arranged gathering of the Mississaugas at the head of the Bay of Quinte in September, 1887. About 626 persons were present; another 391Footnote 9 gathered at Toronto at the same time. The latter gathering was represented at Quinte by selected chiefs, and the two groups between them were recipients of £2,000 worth of goods dispensed by Johnson.Footnote 10 An account of that meeting by the Indian trader, John Long, noted that Sir John showed the Indians a map by which he desired to have the land "from Toronto to Lake Huron."Footnote 11 Another reconstruction of the affair, by Percy Robinson, contends that Johnson took a surrender of the right of transport from Toronto to Matchedash Bay as well as blocks of land (10 miles square) at each end.Footnote 12 Robinson's principal source explaining the events of the decade before is a letter written by Johnson in 1798.Footnote 13
In that letter Sir John did not mention land other than the Toronto-Matchedash area, but it would seem that he did speak to the assembled Indians about the land on the north shore of Lake Ontario between Quinte and Toronto. Long's account says he did; his instructions said he was supposed to; and according to the invoice of the goods given out at the time, the Mississaugas who had gathered at Quinte on September 23, 1784 "Made a formal Cession of Lands on the North side of Lake Ontario to the Crown."Footnote 14 Also, this land cession was described more specifically by the Land Board for Nassau in 1790, when it issued instructions to survey the "Land lately purchased by Sir John Johnson from the Missisaga [sic] Nation on the North Side of Lake Ontario in the District of Nassau from the head of the Bay of Quinte to Toronto.Footnote 15
Sir John's distribution of presents at this council was later interpreted as payment for lands. These gifts of ammunition, arms and tobacco, however, were rather designated as a present to the Mississaugas as a reward for their fidelity to Britain and for "services during the late American War."Footnote 16 Specific payment for the land was to come later. It would seem, however, that a deal was provisionally arranged at Quinte.
Notwithstanding Sir John's denial of having put anything on paper at the time, a deed of sorts has been found and identified as having been drawn up at the Quinte Carrying Place in 1787. It was witnessed by three chiefs – Wabikane, Neace, and Pakquan – and by John Collins, Louis Kotte and Mathaniel Lines.Footnote 17 It does not contain a description of the lands to be sold, but simply leaves blank spaces which evidently were to be filled in later after proper surveys could determine an accurate description. According to the interpreter, Nathaniel Lines,Footnote 18 who recounted the event some eight years later, the land in question was the north shore of Lake Ontario. Others suggestFootnote 19 that the land descriptions to have been inserted at a later date were to include the region of the Toronto-Matchedash purchases.
It is likely that Sir John's hurried visit to Quinte in 1787 did not allow sufficient time to ascertain the precise bounds, particularly in terms of depth, that the government wanted or that the Mississaugas were prepared to offer. In any event those details could be delayed until the following year when payment could be made. The requisitions for supplies to make that payment clearly indicate that two separate purchases were intended, these being the north shore of Lake Ontario and the Toronto-Matchedash lands.Footnote 20 That little trouble was anticipated was reflected in the concurrent despatching of surveyor Alexander Aitken, to conduct a survey of the Toronto site.
Aitken and the provisions arrived at Toronto on the Seneca on August 1, 1788. He was joined a few days later by Lord Dorchester, Sir John Johnson and Colonel John Butler.Footnote 21 Dorchester and Johnson remained at Toronto only until the goods had been distributed to the Mississaugas who had gathered for that purpose. However, not all the expected bands arrived on time. Thus, Butler remained behind to meet those who were expected from Lake Simcoe and Pawastink (Port Hope), and also to reach some agreement regarding the depth of the cession on the Lake Ontario shoreline. Again from fragmentary evidence, we can observe that Butler was successful in coming to an agreement about the depth of the tract. He later reported from Niagara that while at Toronto, after the Lake Simcoe and Port Hope Indians arrived, he called all the chiefs into a council and proposed that they surrender the land between Toronto and the Bay of Quinte, "as far back as Lake La Clay (Simcoe) and the Rice Lake."Footnote 22 Having secured their agreement, "after 2 or 3 meetings," he then proposed that the depth be a straight line beginning 15 or 16 miles back from Toronto. Running the depth in a straight line cost an extra twenty-five guineas to two chiefs, Wabikane and Porqua.Footnote 23 The actual depth was in fact determined by the surveys completed in 1791, when the surveyor, Augustus Jones, reported having done surveys to eleven townships, beginning with the eastern boundary of the District of Nassau and extending two miles west of Toronto.Footnote 24
This issue of the north shore and the Toronto-Matchedash section appeared to have been settled at this point. The Indians, at least according to Butler's reports and Johnson's understanding, were satisfied; and the government was content also with having secured a solid line of settlement between Cataraqui and Toronto, as well as the communications link between Toronto and Matchedash Bay. But there were some clouds on the horizon. First, Aitken had been prevented by Wabikane from completing a full survey of the Toronto site. It was only through the intervention of Nathaniel Lines that Aitken was permitted to begin at the Etobicoke River rather than the Humber River. And, being left alone after the departure of Butler and Lines, he feared to run his survey more than 2 3/4 miles inland, for Chief Wabikane cautioned him against crossing the stream located at that point.Footnote 25 Second, one group of Indians, apparently those from Matchedash, claimed that they had not received payment for their lands. According to Butler, this resulted because Sir John had given the goods to the wrong people.Footnote 26 More serious than any of these, however, was the absence of a territorial description in the deed of surrender prepared at Quinte in 1787. As a result, the problem did not come so much from anger on the part of the Indians, but rather from anxieties expressed by white administrators and by settlers who were concerned about the security of their tenure in lands covered by the 1787-88 agreements.
This concern was increased greatly in 1794. Pressured by Lieutenant-Governor Simcoe regarding the imprecision surrounding the land cessions, Lord Dorchester declared the blank deed taken in 1787 to be invalid.
Enquiry has been made relative to the purchase at Matchedash Bay, a Plan… has been found in the Surveyor General's Office, to which is attached a blank deed, with the names or devices of three chiefs of the Mississauga Nation, or separate pieces of paper annexed thereto, and witnessed by Mr. Collins, Mr. Kotte, a Surveyor, since dead, and Mr. Lines, Indian Interpreter, but not being filled up, is of no validity, or may be applied to a land they possess; no Fraud has been committed or seems to have been intended. It was, however an omission which will set aside the whole transaction, and throw us entirely on the good faith of the Indians for just so much land as they are willing to allow, and what may be further necessary must be purchased anew, but it will be best not to press that matter or show any anxiety about it.Footnote 27
The anguish created by this declaration lasted ten years. Even then it was not cleared up either completely, or neatly, but circumstances were such that the Indians did not register complaints about the details of the arrangements.
The public stance of the government continued to the assertion that the lands had been duly purchased. In 1795, while negotiating for the lands around Penetanguishene Harbour, Lieutenant-Governor Simcoe asked the Chippewas of the Lake Simcoe region about the previous purchases in the area. He reported that they were "desposed to confirm such purchases as were formerly made of them" and that he expected "they will consider the goods to which by this treaty (1795) they are to be entitled as recompense sufficient for what has been supposed to have been purchased on former occasions." Footnote 28
While the assurances provided by Simcoe eased some of the pressure regarding the Carrying Place sector of the 1787-88 agreements, the north shore of Lake Ontario continued to be a source of worry, especially because Dorchester's invalidation of the blank deed had removed the one official document that concerned that area. This was a cause of insecurity among persons who had received subsequent land grantsFootnote 29 in the area and a source of consternation among government officials who feared that the Indians there might make demandsFootnote 30 which either could not be met or would be outrageously expensive.
Sir John Johnson, the official in charge at the time of the surrenders, was asked to explain matters. The situation was complicated further, in this regard, because Sir John was absent from Canada during most of Simcoe's term. His self-imposed exile had been caused largely because he had not received the appointment as Lieutenant Governor, and apparently he refused to remain in Canada while his rival was in control. He returned when Simcoe left; and upon being apprized of the land issue, he expressed surprise and indignation that anyone perceived there to be a problem. In a letter dated 21 March 1798, he said that the transaction had been made, that the Indians had been satisfied and that the Crown had definite possession of the land in question. Should there by any doubts, he said Captain Claus or Lieutenant Givins, of the Indian Department, should be charged with the task of acquainting the chiefs connected to that land that a formal, written agreement was required.Footnote 31 Apparently he felt that there would be little difficulty involved in getting the Indians to sign an agreement, even after a decade had passed.
Johnson's solution was not followed. It was felt that to bring the matter into the open would cause more problems than it would solve. This desire to maintain a quiet approach prompted an ingenious suggestion from the Administrator of the Province of Upper Canada, Peter Russell.
In a letter to Robert Prescott in January of 1798 he suggested a further purchase of two pieces of land adjacent to the land in question. In the deed that would emanate from that arrangement, there could be included a full description not only of the new purchase but also of the lands involved in the 1787-88 arrangements. Such a recapitulation of past purchases, he said, "if properly drawn up may be perhaps as binding a record"Footnote 32 as if an original deed had been taken. Prescott refused to sanction this recapitulation scheme. It would mislead the Indians, he said, and could seriously injure "the King's interest, as soon as they should discover, that they had not been openly dealt with. Management of that kind should never be attempted with Indians" he said, and added "the present juncture besides, is, of all others, the most inauspicious for such purposes."Footnote 33 He did, however, approve of Russell's suggestions that new purchases be made. But he made it clear that in making these purchases he was to deal openly, and to secure proper deeds for both the old cessions and the new ones, "without any reference whatever being introduced therein of the former purchases of 84, 87 and 88…"Footnote 34
Although forbidden to implement his recapitulation scheme, Peter Russell did attempt to secure some measure of reassurance for the government that excessive demands would not be forthcoming from the Indians. When the Chippewas from Lake Simcoe visited York in May of 1798, in order to receive the last of the goods due them for the Penetanguishene purchase, Russell decided to try one more ploy to solve the issue before resorting to Prescott's plan of renegotiation. He invited these Indians on May 22 to a special gathering at his house where he asked them what they understood to be the bounds of the 1787-88 agreement. His exact words are worth quoting, for they help to picture this rather anxious administrator posing the question with what must have been considerable false nonchalance, and an attempt at minor deception.
I have required this conference that I may lay before you the sketch of a small Tract between the East and West branches of the Holland River communicating with Lake Simcoe, which your Great Father the King wishes to possess for the convenience of his people.
I am informed that you have long since ceded the whole of the Country to the Southward and Eastward of the Waters of the Lake to your great father through his Servants Sir John Johnson and Col. Butler; and having given 3 or 4 Miles on each side of the Path leading through this Tract to Lake Simcoe, there cannot be but a small portion of the Land which I ask which is not already the King's. But as the expression of Miles makes no Boundary which may not be ignorantly trespassed upon, It is my desire that you would give the West and the East Branches of the Holland River as the Boundaries, lest the King's subjects should by mistake at any time encroach upon the Indian Territory and give offence – For the West branch of that river then becoming the limit of the English possessions on that side, we should take care not to trespass beyond it.Footnote 35
Russell's performance did not deceive the Indians, however, and Chief Yellowhead must have been smiling, at least inwardly, when he replied:
If you white people forget your transactions with us, we do not. The Lands you have just now shew to us belongs to you; We have nothing to do with it; We have sold it to our Great Father the King, as was well paid for it. Therefore make your mind at easy. There may be some of our young people who do not think so; They may tell your people that the Land is ours, but you must not open your ears to them, but take them by the arm and put them out of your houses…;Footnote 36
Russell wrote to Prescott the next day.Footnote 37 He and his Executive Council felt that since the Indians were of the same opinion as Sir John Johnson, and appeared satisfied that they had indeed surrendered all of the land that Butler claimed to have purchased in 1788,Footnote 38 there was no need either to obtain new deeds or purchase even a small new tract. And that was the way matters left, rather gratefully one suspects, by the government officials in 1798. The issue re-appeared about seven years later.
Concern had again been expressed about the legality of the tenure by which the Crown held the land which included the town of York. Since it was the seat of government, Peter Hunter, the Administrator of the province, had directed that a new deed be acquired from the Mississaugas. Essentially this was the same plan as that suggested by Sir John Johnson in 1798; but circumstances were far more propitious for government in 1805. The Indian agent, William Claus had very little difficulty when he met the Mississaugas in formal council at the Credit River on July 31, 1805.Footnote 39 At that time, the Indians readily agreed that Sir John Johnson had purchased the land in 1787 and that the only condition had been that the fishery in the mouth of the Etobicoke river be reserved for their use. They also expressed the hope that, although they had already been paid, some gifts would be given to them. The formal deed which was drawn up and signed the next day described the area in question as consisting of 250,000Footnote 40 acres and containing the town of York. It also called for the payment of £1,000 in goods. The agreement also stated that the fishery in the Etobicoke river was to be reserved for the sole use of the Mississaugas. This was clearly a greater portion of land than the 10 miles square that Sir John Johnson remembered having taken when he had recalled the event in 1798. The deed, it is worthy of note, did not make mention of the land at Matchedash, nor of a strip 3 miles wide on the water route to Lake Simcoe. It would seem that the assurances given by the Lake Simcoe Chippewas to Simcoe in 1795 and to Russell in 1798 were taken to be sufficient.
Between 1805 and 1916, the matter lay more or less dormant. Several points, however, should be made regarding that land.
Meanwhile, the region along the northern shores of Lakes Huron and Superior had become the object of attention for persons wishing to exploit the mineral resources there. The ultimate result of this was the conclusion of the Robinson Treaties in 1850. One of these – the Robinson-Huron Treaty – purported to involve the shoreline of the lakes, including the off-shore islands, from Matchedash Bay to Batchawana Bay. The surrendered tract also was to run inland to the height of land. At the time he took this surrender, the Special Commissioner, William Benjamin Robinson, was approached by some Indians of the Lake Simcoe region who claimed that they had rights to part of the land in question, and who had not been included in the treaty or in the treaty negotiation. Robinson made little of this incident,Footnote 43 and the Chippewas did not press their claims sufficiently to draw much attention. Thus nothing was done at the time regarding their claims for over a half century.
In that time the control of Indian Affairs passed from the Imperial Government to the Province of Canada in 1862 and in 1867 this responsibility was vested with the Federal Government of Canada. At the same time the territory beyond the areas of the Rideau Purchase and the Rice Lake Purchase were opened to settlement and lumbering. No attempt was made to secure land cessions between the back line of those treaty areas and the Ottawa River. One reason for this delinquence was, no doubt, the dispute in the 1870's and 1880's between the Government of Canada and the Province of Ontario regarding several jurisdictions. This dispute was well publicized regarding Hodge Vs. The Queen, The Rivers and Streams Act and the Ontario boundary extensions. Since the matter of land conflicted with that of Indian Affairs, the two levels of government finally agreed in 1894Footnote 44 that any arrangement made with the Indians after that date would have to involve the provincial government. That happened in 1905-1906 in the case of Treaty No. 9 (The James Bay Treaty),Footnote 45 but the region of the Ottawa Valley was not dealt with until 1916 and the years following. This inactivity probably resulted also because the issue never arose with sufficient seriousness to incline anyone in authority to take action.
Why action was finally taken is a question that does not seem to have a clear answer, although one scholar has suggested "that the public anger over the unjust situation in British Columbia," where lands had been seized without treaties, "provided an impetus towards settling other outstanding claims."Footnote 46
One of the claims was that of the Lake Simcoe Chippewas regarding the Robinson-Huron Treaty, and with a view towards disposing of that issue, the Federal Minister of Justice appointed R.V. Sinclair to investigate the matter. Sinclair's full report is re-produced as Appendix A; the following excerpt is included at this point to illustrate that his report supported the view that the Chippewas' claim had a substantial basis.
The Indian title to these lands has never been extinguished and I am of the opinion that some arrangement should be made for quieting the title by the payment to the claimants of compensation in the same way that the Crown has dealt with other Indians whose title has been extinguished by treaty.Footnote 47
No further action was taken in the matter until the First World War was over. The farmer-Labour Coalition of E.C. Drury replaced the conservative government of William H. Hearst in Ontario and, at the Federal level, the Liberal Government of W.L.M. King replaced the Conservative government of Arthur Meighen.Footnote 48
In 1921 the Federal Government approached the province regarding this longstanding Indian claim. It required a year and a half for the two levels of government to work out the details of an agreement by which they would approach the matter. The agreement, signed on April 23, 1923, called for the appointment of a three man commission which was to investigate the claims. The chairman was to be chosen by the Federal Government and the two other members by the Province. Following the ratification of the agreement by federal and provincial Orders-in-Council in June, the commission, chaired by a Toronto lawyer, A.S. Williams, began its work in September, 1923. Its reportFootnote 49 revealed that the Indians' claims were not only valid, but were also far more extensive than those that had been suggested by the 1916 Sinclair investigation.
Toronto, October 10th, 1923.
The Honourable James Lyons,
Minister of Lands and Forests,
The joint commission appointed by the Government of Canada and the Province of Ontario to inquire into the claims preferred by the Chippewa Indians of Lakes Huron and Simcoe, and the Mississauga Indians of Rice Lake, Mud Lake and Lake Scugog for compensation in respect of an area of land extending from the forty-fifth parallel of latitude north of Lake Nipissing and from the Georgian Bay coast to the Ottawa River, alleged by the claimants to be the ancient hunting grounds of their ancestors, visited the reserves of the Chippewa Indians at Georgina Island on Lake Simcoe, at Christian Island on the Georgian Bay, and at Rama, and the reserves of the Missauga Indians at Rice Lake, Mud Lake, Lake Scugog and Alderville, between the 12th and 26th days of September, for the purpose of taking such evidence as the claimants might desire to present in support of their respective claims.
The Commission found that these Indians were very suspicious of the attitude which would be assumed by the commission towards their claims, having unfortunately become imbued with the idea that the object of the Commission was to minimize the claims and to require such strict legal proof of them as would be required by a Court of Justice in a contest between litigants.
The Commission being aware that it was not the desire of either of the Governments to have the commission approach the consideration of the claims in any such attitude, sought to impress the Indians with a view that any evidence, whether it might be direct or whether it might be only the relation of the traditions of the nation or of statements made to individual Indians by their ancestors, would be received and considered, and the Commission is glad to be able to state that the attitude of doubt referred to was entirely dissipated and that beyond any question when the Commission left each of the reserves it had secured the entire confidence of the Indians.
It is the opinion of the Commission that the claimants have submitted ample and satisfactory proof of the occupation by them of the land referred to as the ancient hunting grounds of the ancestors of the claimants. These hunting grounds cover an area of over 10,000 square miles of territory, the value of which is almost incalculable.
A Claim was put forward by the Chippewa Indians that a large area of land, approximately 1,000 square miles, was included in the Robinson-Huron treaty of 1850, to which the Ojibways had no claim, the territory in question being alleged to have belonged to the Chippewas, and this fact is stated to have been admitted since the making of the treaty by the Ojibways, who say that the territory in question was included in the treaty by error. The territory extends northward along the shore of the Georgian Bay from Moose Deer Point, north to the French River, and west possibly to the Spanish River.
It was claimed by the Mississauga Nation that seven townships lying immediately south of Lake Simcoe, belonging to them, had never been surrendered. A moderate estimate of the value of these townships alone would be $30,000.00. The area comprised in these townships alone is somewhat over 355,000 acres. The Commission has not been able to find that a surrender of the townships in question has ever been made. It was further discovered that the lands lying between the Bay of Quinte and the County of York, and extending north a day's journey from the shore of the lake, commonly supposed to have been surrendered by what is knows as the Gun Shot Treaty, are not described in any treaty. The Gun Shot Treaty, which was made on the 23rd day of September, 1787 and which was intended to cover the area in question, unfortunately does not contain any description whatever of the land covered by it. It is suggested by the Commission in the event of a surrender from the claimants of the large tract of hunting grounds above described, to include in the surrender the lands intended to be covered by the Gun Shot Treaty and the seven townships lying immediately south of Lake Simcoe, and the commission is of the opinion that the surrender should be extended to cover the 1,000 square miles claimed by the Chippewa Indians to have been improperly included in the Robinson-Huron Treaty, if upon examination the Commission should come to the conclusion that the claim of the Chippewas in this respect is well founded.
The Commission desires to point out that it has been the invariable practice to make a cash payment to the Indians at the time of taking a surrender, which payment has varied, but so far as the Commission is aware has never been less than $8.00 per head, that being the sum paid when treaty Nine was executed in 1905. The claimants in the present case number about 1350, and in view of the diminution in value of the dollar, the Commission is of opinion that a payment of $15.00 a head to-day would be about equivalent to a payment of $78.00 a head in 1905, and the Commission therefore suggests that in order that it may have sufficient funds to enable it to negotiate with respect to the cash payment, it should be provided with the sum of $30,000.00 for that purpose, any balance of which will of course be returned.
After the best consideration which the Commission has been able to give to the evidence, and taking into consideration the contiguity of the large portion of land in Northern Ontario which will be surrendered to the settled portions of Ontario, and considering its immense value, and also the value of the seven townships lying to the south of Lake Simcoe, the Commission has come to the conclusion that the sum of $700,000.00 will be a fair and equitable compensation for the rights which these Indians will be called upon to release.
In arriving at this sum the following additional facts are proper to be considered, namely: That the claim made by these Indians has been continuously pressed for the last seventy years; that for over fifty years the claimants have practically been deprived of the use of the lands as hunting grounds because of the encroachment of the whites, both settlers and trappers, so that the view which is to be found in the files of the Indian Department, that these claimants should be now compensated for the deprivation of use which they have suffered for fifty years, is one which must be considered in arriving at a sum.
If one were to approach the question of compensation from the foregoing point of view, and were to settle with these claimants on the basis of the settlement which is provided for under the Robinson-Huron treaty, the capitalization of the amount which would be required to be paid at the present day would be $840,000.00, in addition to which the claimants would be entitled to 156,600 acres of land as reserves. If, however, the claimants should be dealt with on the basis which prevailed with respect to treaty Nine, the capitalization of the amount required would be $1,372,800.00, in addition to which the quantity of land required to be set aside for reserves would be 320,000 acres.
For the foregoing reasons the Commission recommend that it be given authority to negotiate for surrenders of the land referred to, with the right to pay up to $700,000.00 for such surrenders, and in addition such cash payment as may be necessary to procure the signing of the surrenders. The latter payment, however, it is believed will not exceed $30,000.00.
The two governments involved, having been suddenly confronted with a report that not only validated the claims to the central portion of the province but also verified ancient claims to lands on the north shore of Lake Ontario and to a sizeable tract below Lake Simcoe, moved very quickly to extinguish the Indian title to those regions. There were two problems: first, the claiming bands might discover the full value of the lands they were being asked to give up; second, despite the fact that the land in Ontario and York Counties was valued by the Commission at $30,000,000.00 and those of the old 1787-88 Johnson purchase were much more valuable than that, the Province of Ontario was prepared to pay only $500,000.
Faced with this circumstance, the Federal Government decided to offer the Indians the provincial limit and hope that further negotiations would not be necessary. As things developed, the strategy worked and the several bands involved signed the two agreements which are known collectively as the Williams Treaties. These form Appendix B and Appendix C.
The Williams Treaties (1923) provided for the surrender of the last substantial portion of the territory in the southern regions of Ontario that had not been given up to government. Indeed, only the adhesion to Treaty No. 9, made in 1829, remained to be completed anywhere in the province. Moreover, it settled a land issue that had been smouldering, at least in the Indian mind, since 1787-88. Williams and his fellow commissioners should have been highly commended for the task that they performed, since they certainly secured a bargain for the Crown. And since they were working for the Crown it can be said that they served their employer very well indeed. The Indians, however, should be far less impressed for they soldFootnote 50 – one might even say that they were manipulated into selling – an enormous territory for a mere fraction of its actual value. Whether or not it was just is a question that lies beyond the limits of this report.
What should be noted is that in addition to the initial payments and the continuing annuities, the government did undertake to preserve the several bands in the reserve lands which they possessed. It should also be noted that, unlike the Robinson Treaties (1850), the Manitoulin Treaty (1862), and Treaties No. 3 (1873), 5 (1875), and 9 (1905 and 1929), all of which involved lands in Ontario, the Williams Treaties did not secure hunting and fishing rights for the bands involved. This was not only a departure from what had become an established practice, it also created some potential problems. The territory described in the Williams Treaties overlapped with territory taken in the Robinson-Huron Treaty and in Treaty No. 20 (The Rice Lake Purchase). Does the surrender of hunting and fishing rights in the Williams Treaties apply to the regions which overlap? Inasmuch as the bands who agreed to the Robinson-Huron Treaty were not involved in any of the 1923 arrangements would seem to be most unfair that this should be the case. It is also unlikely that it was intended at the time, but it may arise as a controversial point.
Re. The claim of the Chippewas of Lakes Huron and Simcoe, and the Mississaugas of Rice Mud and Scugog Lakes for Compensation for unsurrendered lands.
The accompanying files of the Indian Department Nos. 67071 and 67071-2 were referred to me for a report as to the validity, or otherwise, of the claims made by the Chippewas of Lakes Huron and Simcoe and by the Mississaugas of Mud, Rice and Scugog Lakes for compensation for their unsurrendered hunting grounds.
These claims have been before the Department for many years.
Since the reference to me I have under instructions from the Indian Department gathered such evidence as seemed available and have made enquiries respecting the claim at various sources and have examined a number of records at the Archives.
I have included in the accompanying brief copies of all the documents on the files having material relation to the claim and copies of declarations relating thereto, the originals of which I also forward.
I also forward a map on which are located the various hunting limits referred to in the declarations.
A careful search of the records referred to and of those of the Crown Lands Department at Toronto has failed to disclose any document or treaty showing that the Indian title to a large tract of land in Ontario lying west of the Ottawa River and east of the Georgian Bay and the eastern boundary of the land surrendered by the Robinson Treaty of 1850, no. 61. And approximately north of the 45th parallel of latitude to where the eastern boundary of the Treaty of 1850 strikes the Ottawa River has been extinguished.
The question then to be determined is whether the claimants occupied this territory as hunting limits.
This unsurrendered tract is described by Mr. Bray, D.L.S., of the Indian Department as follows:- "All that tract of land in the Province of Ontario containing approximately ten thousand seven hundred and nineteen square miles (10,719), bounded on the north by the Ottawa River, on the east by the surrender of the 8th Movember 1822, on the south by the said surrender, by the surrenders of 5th November, 1818, and 18th November 1815, and by the Lakes Simcoe and Couchiching and on the west by the Georgian Bay and the lands of the Ojibewas of Lake Huron ceded by them on the 9th September, 1850, and which lands may be more particularly described as follows:- commencing on the Georgian Bay at the north-eastern angle of the surrender to the westerly shore of Lake Simcoe thence northerly following the said westerly shore of Lake Simcoe and the westerly shore of Lake Couchiching to the foot of the said Lake Couchiching thence northerly and easterly along the boundaries of the surrender of the 5th November, 1818, to the northeastern angle of the said surrender thence easterly and northerly along the boundaries of the surrender of the 8th November, 1822, to the Ottawa River, thence up the said Ottawa River to the point where it crosses the 47th parallel of latitude, thence southerly and easterly along the boundaries of the lands of the Ojibewas of Lake Huron ceded by them on the 9th September, 1950, to Moose Deer Point on the Georgian Bay, thence southerly following the easterly shore of Georgian Bay to the point commencement excepting thereout and therefrom certain islands at the foot of Lake Couchiching and in the headwaters of the Severn River that are claimed by the Indians as their property."
It seems doubtful however whether there should have been included in this description any land lying north of the height of land and quite clear that it should not have included any land north of the Mattawa River.
The final clause of the Robinson Treaty of 1850 reads as follows:-
"The said William Benjamin Robinson of the first part further agrees on the part of her Majesty and the government of this Province that in consequence of the Indians inhabiting French River and Lake Nipissing having become parties to this Treaty the further sum of One Hundred and Sixty Pounds provincial currency shall be paid in addition to the two thousand pounds above mentioned."
This view is strengthened by the fact that the declarations claim compensation only for hunting grounds lying north of the 45th parallel to the height of land. There is no evidence that the claimants ever hunted south of the height of land.
The area of the land described by Mr. Bray is 10,719 square miles. The area of the lands covered by Mr. Bray’s description lying north of the height of land is 960 square miles and that of the area south of the height of land 9,759 square miles.
In support of the claims of the Mississaugas the declarations of Allan Salt, George Blaker, T. Marsden and George Gouse have been filed. The remaining declarations set out in the index to the Brief are filed in support of the claims of the Chippewas and are made by 33 Indians. The declaration filed by John Miller while it supports the general claim of the Chippewas apparently places the hunting limit used by his father and himself in the territory surrendered on the 9th September, 1850.
One of the hunting limits used by James Manigishking, as well as that claimed by Peter Joe, and part of that claimed by Joe Cousin appear to be in the territory surrendered on the 5th November, 1819.
The limit claimed by Mrs. James Ashquabe and that claimed by Peter Kedegegwon appear to be in the territory surrendered on the 17th day of October, 1818.
In the correspondence, though unsupported by declaration, a claim is made and apparently admitted by the Department of Crown Lands of Ontario to a piece of land supposed to have been covered by the Robinson-Huron Treaty, lying west of Bobcaygeon Road to the Georgian Bay and between Moose Deer Point and a point in the neighbourhood of Penetanguishene.
The claim is made on the ground that the lands in question form part of the hunting grounds of the Chippewas of Lakes Huron and Simcoe, that they were not parties to the Treaty above referred to, that the Ojibway and Nipissing Indians who signed the treaty had no right to cede in the lands south or east of the points referred to, and that the Indians who signed the Treaty acknowledge that they had no claim to these lands and did not know that they formed part of the surrender.
Unfortunately the files of the Indian Department prior to 1870 have been sent to the… Branch where they have not yet been sorted so that access to them could not be had. Possibly these files would show that the claim was originally made prior to the 1870's.
Messrs. Rimmer and McKenna on a report on this claim published in 1901 "as to the large tract of land we find:-"
"That by surrender of November 8, 1818, no. 20, and November 28, 1822, no. 27, the above Chippewas and Mississaugas surrendered to the Crown Lands south of the 45th parallel inhabited and claimed by them comprising in the whole 1,619,000 acres.
"That the Chippewas of Lake Huron who made the Robinson-Huron Treaty of September 9, 1850 (no. 61) were entitled to surrender the land on the north and east shores of Lake Huron as far south as Moose Deer Point (near 45th parallel) and inland to the height of land which territory is included in the treaty."
"That as to the Chippewas of Surrender no. 20 it has for twenty-two years been conceded by the department that they were not entitled to claim rights north of Moose Deer Point."
"That inasmuch as we can discover no evidence that the Chippewas and Mississaugas who made surrenders no. 20 and 27 respectively, had any use of the land north of the one and north and west of the other prior to the surrenders, when the surrenders are read with the treaty, be fairly taken as implying that the parties to the surrenders by then relinquished the whole territory then inhabited and claimed."
I do not think that the inference drawn by Messrs. Rimmer and McKenna from the use of the words "inhabited and claimed by them" is warranted and it is contradicted by the declarations now on file.
The further statement in the report of Messrs. Rimmer and McKenna that the lands in question "appear to have been used as a hunting ground generally by the Algonquins" is based on a statement contained in a report made by the late William Spragge in 1866 (file 83203) upon a petition presented in 1865 by the Indians of the village of the Two Mountains described therein as hunting on the Head Waters of the Madawaska and other rivers of central Canada in which for the reasons therein set to the petitioners ask that they may be given a reserve in the Township of Lawrence in the County of Peterborough stating that the encroachment of the whites upon their original hunting grounds on the Madawasks River had compelled them to travel westward, and that the Reserve asked for would be near their hunting grounds which statement is as follows:-
"The Algonquins claimed as their hunting territory in the Upper Canada side of the Ottawa River. It is quite certain that they have used it as hunting grounds and do so still. But their claims have neither been extinguished by surrender to the Crown nor does it appear that their claims have been positively admitted."
The reserve asked for was not given to these Indians and I understand they were ultimately settled at Golden Lake in the County of Renfrew. Their petition does not in any way define the hunting grounds referred to therein other than to say that a reserve in the County of Peterborough would be near such hunting grounds and there is nothing on the file to indicate the grounds for the statement contained in Mr. Stragge’s report.
It must also be observed that no claim has ever been made by the Algonquins to the hunting grounds now claimed by the Chippewas and Mississaugas and further that it appears from the declaration of Thomas Marsden, p. 86, that the Algonquin hunting territories did not extend south of the Mattawa River. If this is correct, the statement contained in the report of Messrs. Rimmer and McKenna "that the tract of land appears to have been used as a hunting ground generally by the Algonquians" is incorrect. The hunting limits claimed by the Chippewas of Lakes Huron and Simcoe are shown in the accompanying map within a border, they overlap the lands covered by the Robinson Treaty of 1850, and also those surrendered on the 5th November 18--. Excluding the portions so overlapping the area claimed by the Chippewas is about 3,387 square miles.
In a return of correspondence respecting the Indians in the British North American colonies between Sir. F.B. Head and Lord Glenelg published in the British Parliamentary Papers, 1839, volume 54, at page 147, Captain Anderson under date May 15, 1837, replying to a question submitted to him by Col. J. Givens as to the situation of the locations of the settled parties or of the hunting grounds occupied by the Indians, says:-
"The Alnwick Indian Settlement is situated on the south side of the Rice Lake, about one and a half miles back from the Lake. The Rice Lake Indian Settlement is on the north side of the Lake. The Mud Lake Indian Settlement is situated on a point of land in that lake."
"The hunting grounds is on the tract of country through to the Ottawa River. The extent of the Alnwick Indian Settlement is about 3,000 acres, that of the Rice Lake about 1,200 acres and that of the Mud Lake about 1,600 acres; the hunting ranges consist principally of deer with which the country abounds."
I forward also a tracing of a map published in the Legislative Council Sessional Papers for 1847, no. 1, vol. 6, showing the different surrenders made by the Indians in Upper Canada to the Crown at that date, from which it appears that the lands in question were not then surrendered.
It appears to me that the declarations filed establish a prima facie of the actual user by individual members of the Claimant Bands as hunting grounds of a large and defined portion of the 9,759 square miles of territory shown on the accompanying map and set up a claim to the whole territory as having been acquired by the ancestors of the claimants and having after such acquisition been used by their ancestors and themselves as the hunting grounds of the Bands in question. It may be objected that as large an area of 9,759 square miles of territory could not have been possessed by these Indians, but actual continued physical occupation of the whole territory is not necessary. As was said by the Supreme Court of the United States in Mitchell vs. U.S. 9 Peters:- "Indians possession or occupation was considered with reference to their habits and modes of life; their hunting grounds are as much in their possession as the cleared fields of the whites and their rights to its exclusive enjoyment in their own way or for their own purposes were as much respected until they abandoned them, made a cession to the government or an authorized sale to individuals."
The claim to the whole territory as hunting grounds is asserted by the declarations of 27 Indians in terms so positive and explicit as to render it extremely difficult to disregard the evidence.
The Indian title to these lands has never been extinguished and I am of the opinion that some arrangement should be made for quieting the title by the payment to the claimants of compensation in the same way that the Crown has dealt with other Indians whose title has been extinguished by Treaty.
I have not in this report considered the question as to whether the monetary obligation resulting from the quieting of the Indian Title to these lands should be borne by the Dominion or by the Province of Ontario – that question not having been referred to me; It may however may not be improper for me to remark that the delay in settling this claim seems from the files largely to have resulted from a controversy between the Dominion and the Province of Ontario on this point: the Dominion contending that inasmuch as the lands when free from the Indian title will belong to Ontario absolutely while at present under the 109th section of the British North American Act they belong to the Province "subject to any interest other than that of the Province in the same" the duty to assume the monetary obligation incident to the quieting of the Title should fall on the Province, while the Province has taken the position that inasmuch as the right to legislate with respect to "Indians and lands reserved for Indians" comes within the exclusive jurisdiction of the Dominion it is the duty of the Dominion to assume this obligation and hand over the lands to the Province free therefrom.
It seems clear that the lands in question "lands reserved for Indians" within the meaning of the Proclamation of the 7th October, 1763, and that the Indian title is "an interest other than that of the Province in the same" and also that although it was left undecided in the St. Catherines Milling and Lumbering Company vs. The Queen, 14 App. Cas. 46, whether a province could of its own motion and power extinguish the Indian Title and notwithstanding that Mr. Justice Burton in 15, O.A.R. p. 167 considered that the Province would undoubtedly would have such power apparently the power to do so rests with the Dominion alone, to permit a province to exercise such power would be to permit a direct interference with the powers of legislation expressly conferred on the Dominion by Section 91 of the British North America Act.
The effect of the decision in the Dominion of Canada vs. Province of Ontario. L.J.P.C. (1911) p. 32, is to determine that unless the Dominion quiets the Indian Title under an express arrangement with the Province, the Province is not liable to recoup the Dominion the expenditure to which it is put nor to assume the future payments included in the Treaty.
I would recommend that an endeavour be made to obtain an agreement from the Province to assume the monetary obligation which may be incurred in the quieting of the title.
E.L. Newcombe, Esq., K.C.,
Deputy Minister of Justice,
Department of Justice,