First Nations

The Real Cost of Bad History

Robert MacBain and Peter Shawn Taylor
May 28, 2019
Facts may be stubborn things. But they don’t stand a chance in court given the Canadian legal system’s current obsession with Indigenous spirituality and myth. Decisive historical evidence and centuries of legal doctrine were recently rejected by an Ontario judge evidently bewitched by Indigenous creationism and a federal government apparently intent on surrender. Drawing on their knowledge of the Indigenous file, Robert MacBain and Peter Shawn Taylor reveal the deep flaws of Restoule v. Canada, and the enormous financial and political damage it could do.
First Nations

The Real Cost of Bad History

Robert MacBain and Peter Shawn Taylor
May 28, 2019
Facts may be stubborn things. But they don’t stand a chance in court given the Canadian legal system’s current obsession with Indigenous spirituality and myth. Decisive historical evidence and centuries of legal doctrine were recently rejected by an Ontario judge evidently bewitched by Indigenous creationism and a federal government apparently intent on surrender. Drawing on their knowledge of the Indigenous file, Robert MacBain and Peter Shawn Taylor reveal the deep flaws of Restoule v. Canada, and the enormous financial and political damage it could do.
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The Ojibway who now live in the upper Great Lakes region were once a coastal tribe. Considerable evidence, both from Indigenous oral tradition and western-style documentation, suggests they originally lived on the Atlantic Coast, likely around the Gulf of St. Lawrence. They were pushed out of their ancient villages following devastating wars with the Iroquois, who’d been supplied with muskets by Dutch and English traders in the early 1600s. Forced west, the Ojibway then violently displaced tribes living in the Great Lakes region as far west as present-day Winnipeg.

Today, approximately 30,000 Ojibways live in a sprawling region north of Lake Huron and Lake Superior. And thanks to a recent Ontario court decision, they could soon be in line for a massive and unprecedented financial gift from Canadian taxpayers. It’s a giveaway made possible by an imaginative rewriting of two nearly 170-year-old signed treaties, a legal system that appears to have fallen under the spell of native mysticism, a federal government that’s given up defending the taxpayers’ interests and a judge who thinks she can read the minds of long-dead historical figures and mistakenly believes the Ojibway have lived in Northwestern Ontario since time immemorial.

The 1850 Robinson Treaties were intended as the final settlement between the Ojibway and the then-Province of Canada.
The 1850 Robinson Treaties were intended as the final settlement between the Ojibway and the then-Province of Canada.

Canadians are thus now bearing witness to the real impact of bad history, and it’s not just about fewer statues of white political and military leaders in the public square. The full bill from Canada’s inability to understand, appreciate and track its own history could end up costing taxpayers untold sums, and may ultimately sever our vital connection to the truth about who we are and what has gone before.


On the facts alone, the court decision in Restoule v. Canada makes no sense given the clarity of the legally-binding documents in question. In 1850, a couple of hundred years after the start of the Ojibways’ great migration westward, approximately 2,500 of them concluded two treaties with the Province of Canada over the cession of a 60,000-square-kilometre swath of Northwestern Ontario including what is now Thunder Bay, North Bay, Sudbury and Sault Ste. Marie. These were the Robinson Treaties, so named for Treaty Commissioner William B. Robinson. In exchange for this land the Crown agreed to pay a lump-sum and provide a perpetual annuity to the Ojibway and their descendants.

Commissioner Robinson, at least, had no doubt what the Treaties meant at the time, and it certainly wasn’t ever-evolving “land sharing”.

In 2014 the current recipients of this annuity, represented by primary claimant Mike Restoule, launched a legal challenge seeking to increase these payments far beyond what was originally agreed. Last December, Justice Patricia C. Hennessy of the Ontario Superior Court of Justice instructed the lawyers representing 21 Ojibway bands and the governments of Canada and Ontario to reach an agreement on sharing a portion of net government revenue from the region with the Ojibway.

It won’t be cheap. Initial demands from the Indigenous side range from 100 percent of Crown revenues in the region to two-thirds. This would presumably cover government fees and royalties from timber sales, mineral rights auctions and other Crown leasing, mining, commercial fishing, perhaps even profitable public works such as hydroelectric facilities. A second stage to the proceedings, split into three stages to accommodate the case’s complexity and number of contentious issues, will get underway at the end of September.

Justice Hennessy’s ruling runs counter to what was said and written at the time of the treaties. And it appears to be based largely on her mistaken claim the territory covered by the Robinson Treaties “was historically occupied and communally held [by the Ojibways] prior to contact [with Europeans].” It is a decision, in other words, that effectively rewrites historical documents and ignores available historical evidence. It also puts words in the mouths of several long-dead key players.

It’s clear from the treaties themselves and associated correspondence that they were meant to be the last word on the issue of who owned the land and how much money was changing hands. In his September 24, 1850 report to the Superintendent-General of Indian Affairs, Commissioner Robinson said he drafted the treaties on the basis of an upfront cash payment and an annual payment that was not to rise above $4 per person. The treaties signed by chiefs were thus meant to be, as he put it, “the immediate and final settlement [emphasis added] of the matter.”

Lieutenant-Governor Alexander Morris, who negotiated four of the seven treaties the government of Canada entered into with bands living west of Thunder Bay between 1871 and 1877, wrote in 1879 that the Robinson Treaties’ provision of an upfront payment of £4,000 and a total annuity of about £1,000 “avoid[s] any dispute that might arise as to the amounts actually received by the Government.” The government kept the promise Commissioner Robinson made in 1850 by increasing the annuity to the maximum $4 per person in 1875. 

Lieutenant-Governor Morris wrote the book on treaty negotiations in 1880 but has been largely ignored in the Restoule case.

Justice Hennessy ruled, however, that Commissioner Robinson “did not intend to fix a [$4] cap on the annuity.” She cited no evidence for doing so. She further claimed the $4 cap only limited the amount individual Ojibways were to receive each year and not the collective amount that was to be paid out to the bands as a whole. Nothing written or said at the time the treaties were negotiated, however, supports this claim.

Justice Hennessy’s ruling frequently leaps from the speculative to the declarative without citing any evidence to support having done so. Throughout her judgment, she uses the word “reasonable” 29 times, “likely” 19 times and “assume” 14 times. Justice Hennessy says, for example, that Commissioner Robinson would have discussed a clause requiring the annuities to be increased to a maximum $4 per person with Governor-General Lord Elgin before he negotiated the treaties. But nothing in the known historical record indicates that anyone said this at the time.

Also without citing evidence, Justice Hennessy declares: “With the Governor General’s approval, Robinson ultimately proposed an agreement that the Anishinaabe [Ojibway] Chiefs could accept on behalf of their people.” She also says Chief Shingwaukonse, the political leader of the Lake Huron Ojibway, “likely understood” how low the annuities would be in the early years. She further declares: “He confidently took the risk that the territories would increase in value and, in that way, that his people would be more appropriately compensated in the future.” Justice Hennessy seems to have read Chief Shingwaukonse’s mind on his negotiating tactics 164 years after his death in 1854. The treaties further make no mention that the Ojibway were to receive reports on future land sales or other revenues, as Justice Hennessy has ordered.

Chief Shingwaukonse (with his wife at right), political leader of the Lake Huron Ojibway in the 1850s, would have his mind read in an Ontario courtroom in 2018.

Possibly the most momentous assertion Justice Hennessy made and, if allowed to stand, the finding with the greatest implications for other Indigenous litigation is her ruling that the treaties were not meant to be one-time transactions but “future-oriented agreements situated within an ongoing relationship.” In other words, not final, but subject to change.

The notion that historical treaties should not be read as written − as clear and final land surrender agreements – but instead as opportunities to explore new and inventive forms of “land-sharing” among natives and settlers has become a popular political narrative. It has no basis in fact or history. But through endless repetition it is gaining credibility, and this “narrative” if left unchallenged entails grave consequences. Cases being litigated in British Columbia take this land-sharing doctrine even further by provocatively claiming the Crown never held clear title to any land anywhere in Canada. Given that all private property in Canada was once Crown land, this undermines the entire concept of fee simple property ownership anywhere in the country and, in turn, the legal rights of property-owners ranging from cottage and homeowners to the largest industrial facilities and even municipalities.

A radical upending of traditional legal practices is similarly the motivation behind former federal Justice Minister Jody Wilson-Raybould’s “Practice Directive”, issued just before she was shuffled out of her cabinet position in January as Minister of Justice and Attorney General. It is a set of 20 guiding principles for engagement in Indigenous legal cases sent to all federal litigators. It upends a century-and-a-half of government practise and essentially neuters the Crown’s ability to defend itself in contentious legal challenges by ordering government lawyers to seek “reconciliation” rather than aggressively defending Ottawa’s position via legal or historical precedent. If not amended or abandoned, it paves the way for unimpeded success by Indigenous claimants.  

In keeping with the federal government’s new “surrender” directive, Crown-Indigenous Relations Minister Carolyn Bennett announced in January that Ottawa would not appeal the Restoule decision because it prefers “negotiation to litigation.” Ontario, to its credit, has filed a notice of appeal, although it has also agreed to participate in the ongoing out-of-court revenue-sharing negotiations.

The current political confusion and legal capitulation fit hand-in-glove with Justice Hennessy’s lack of historical context, perhaps the most deeply troubling aspect of this case. Her judgment repeatedly conflicts with relevant and necessary historical facts. With reference to the approximately 2,500 Ojibways living along the north shores of Lake Huron and Lake Superior in 1850, for example, she wrote: “They were giving [Canada] the greatest gift of all — ‘the land and water over which countless generations of their ancestors had presided.’”

Such a statement is blind to the prodigious historical evidence attesting to the Ojibway’s relatively recent arrival. Anishinaabe-speaking historian William Whipple Warren wrote in 1850 that an Ojibway medicine man told him his “forefathers, many strings of lives ago, lived on the shores of the Great Salt Water in the east.” American historian Henry Schoolcraft recorded similar evidence in 1847, writing that “the Ojibwas…affirm they came from the east.”

Even before the Robinson Treaties, Commissioner of Crown Lands D. P. Papineau – who is quoted in Justice Hennessy’s decision — advised the government that the Ojibway were “not the original proprietors of the soil.” But nowhere in her 39-page section on Ojibway history, customs and traditions does Justice Hennessy acknowledge their ancient connection to the Gulf of St. Lawrence, the Iroquois wars or their violent migration west.

Rather than sticking to the historical facts, Justice Hennessy extensively quoted an Ojibway elder’s account of his people’s cosmology and creation story, and then herself claimed: “As the last placed within creation, the Anishinaabe [Ojibways] could not act in ways that would violate those relationships that came before their placement on the land and that were already in existence across creation.” Setting aside her curious acceptance of Indigenous mythology as fact, we know that at the time of their “creation” the Anishinaabe could not have been placed in Northwestern Ontario. They originated on the Atlantic Coast and are essentially newcomers to the area, having arrived after European explorers.

Captivated by Indigenous creationism: Justice Hennessy ignored historical evidence that the Ojibway were latecomers.

In its notice of appeal, Ontario rejects Justice Hennessy’s finding that the 30,000 Ojibways now living in the area are entitled to an unspecified share of net Crown revenues. The province also argues she failed to define what constitutes a “fair share” and doesn’t take into account the fact “no such principles were agreed to or discussed during the Treaty negotiations.” But Ontario ultimately wavers in its convictions on this point by claiming there was an “implied term” in the treaties to increase the annuities at some future date “to mitigate the extensive erosion of purchasing power that has resulted from persistent inflation.” This implication appears to be another latter-day invention, because the British pound (Canada’s currency until 1867) maintained its purchasing power throughout the 19th century and into the 1920s, making it difficult to see how inflation could have been a concern for either side.

Still, the province is suggesting an increase from $4 to approximately $120 per person – or about $3.4 million per year. While this may be a politically expedient move, nothing Commissioner Robinson or any other government official said or wrote at the time supports Ontario’s supposition that purchasing power was a topic of discussion during the treaties, either implied or direct. Canada and Ontario have also agreed that taxpayers should cover the Ojibways’ substantial legal costs, although Ontario says this should be reduced to $9.2 million from the $14.5 million Justice Hennessy awarded. And that’s just Stage One.

Nowhere in Ontario’s appeal notice does the province take issue with the judge’s belief the Ojibway lived on the north shore of Lake Huron and Lake Superior prior to European contact – a critical point around which much of the case revolves. Neither does it mention that a judge from an allegedly secular court of law eagerly accepted Indigenous mysticism in the face of conflicting factual history and Western jurisprudence. It appears instead that the legal teams on both sides of the court were utterly in the thrall of Indigenous hospitality and story-telling.

Court proceedings were moved to a native community centre, where the judge and lawyers took a deep dive into native spirituality.

The Restoule case began in Thunder Bay in September 2017 and later hearings were held at the Garden River First Nation Community Centre near Sault Ste. Marie and on Manitoulin Island before concluding in a regular courthouse in Sudbury.

In her decision, Hennessy effusively thanked the Ojibway plaintiffs for being “warm and generous hosts” during legal proceedings in their communities. She explained how the entire judicial entourage attended sweat lodges, pipe and smudge ceremonies, Sacred Fire teachings, eagle staff and eagle feather presentations, and feasts. “During the ceremonies,” the judge wrote, “There were often teachings, sometimes centered on bimaadiziwin – how to lead a good life.” She added, “The entire court party expressed their gratitude for the generosity of the many knowledge keepers who provided the teachings. I believe I speak for the counsel teams when I say that the teachings and the hospitality gave us an appreciation of the modern exercise of ancient practices.”

Aside from being breathtaking in its credulity, such a statement is quite disturbing coming from a judge tasked with impartially deciding a case that entails enormous financial consequences and hinges on the intricacies of historical evidence and differing cultural viewpoints. Before signing her decision, Justice Hennessy added the final words “Miigwech, Miigwech, Miigwech”. That’s the Ojibway term for “thank you”. It’s not a sentiment the Canadian taxpayer, or anyone with an interest in historical accuracy or legal coherence, is likely to share.

Toronto author Robert MacBain has monitored Indigenous affairs for more than 58 years – as a newspaper reporter, consultant to the Department of Indian Affairs and the author of two books.

Peter Shawn Taylor is a contributing editor at Maclean’s magazine. He lives in Waterloo, Ontario.

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