During a conference on Treaty 9 held in Kashechewan First Nation in 1987, respected Elder James Wesley of Attawapiskat recalled words of a man who was present when treaty commissioners met with First Nations in 1905.
“Henry Reuben says he was sitting there and saw them writing the important things,” Wesley is quoted as saying at the time. “There was someone there that did the writing. So this is what is lost. Maybe one day it will show up.”
Eight years later, the diaries of the three commissioners were discovered and, according to Mushkegowuk Council, verify what Elders have been saying all along: the commissioners made oral promises that are not reflected in the treaty. The diaries serve as the key piece of evidence in a lawsuit being launched by Mushkegowuk against the Ontario and Canadian government.
A statement of claim sent to the Ontario Superior Court on July 4 by Mushkegowuk Council asserts that the governments of Ontario and Canada have “no power or right under Treaty 9 to unilaterally restrict or extinguish” the harvesting rights of the Mushkegowuk people by authorizing resource companies to develop on their traditional territory.
The claim states that the “oral assurances of continued and undiminished” trapping, hunting and fish rights made by the treaty commissioners were “critical” to First Nations deciding to agree to sign Treaty 9.
The diary of Ontario treaty commissioner Daniel G. MacMartin made several references that oral promises were made in 1905, in which the First Nations who signed “were allowed of as of yore to hunt and fish as they pleased.”
According to Mushkegowuk Grand Chief Stan Louttit, this means the First Nations who signed never agreed to “give up the land.”
“We’re excited about this,” he said at the James Bay Treaty – Treaty No. 9 Conference in Moose Factory on July 30. “This evidence is coming about, in terms of how the treaty was really presented, and how the treaty was really understood by our forefathers.”
When the Dominion of Canada and Ontario began drafting Treaty 9 in 1903, the intent was to secure the “extinguishment of the Indian title of lands” and transfer it to the Crown, said Louttit.
And while it is written in the Treaty that the First Nations have the “right to pursue their usual vocations of hunting, trapping and fishing throughout the tract (of land) surrendered…” the same clause seems to contradict itself, said Louttit.
The clause concludes: “excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.”
From the federal and provincial governments’ point of view, Louttit said, the clause gives them the legal authority to allow resource development on First Nations’ traditional territory.
However, Louttit said, the entire Treaty – let alone the clause – was not properly explained to the First Nations when it was signed.
The claim cites Section 35 of the Constitution Act (1982), where “oral treaty promises are legally binding terms of the Treaty.”
If the court rules in Mushkegowuk’s favour, Grand Chief Stan Louttit said it could not only force the government and resource companies to “consult” with First Nations, but to have their consent. This would allow communities to gain leverage in any negotiations and benefit substantially from any development on their territory.
“And not only for Mushkegowuk, but all Treaty 9 communities,” he said.
The plaintiff of the lawsuit is Peter Archibald of Taykwa Tagamou First Nation. Two mining companies have staked claims that overlap with Archibald’s traditional trapline, which he inherited from his father.
Taykwa Tagamou, formerly known as New Post, signed Treaty 9 in 1905 and MacMartin’s diary references oral promises made at that time.
The two mining companies – Northern Shield Resources, and Lake Shore Gold – are also defendants in the suit.
Louttit said Archibald’s example was chosen because it was a “clearcut” example of mining companies infringing on the traditional territory of a Treaty 9 community.
Since Mushkegowuk issued the statement of claim on July 4, the government has 60 days to file a statement of defense. From there, Mushkegowuk can file the formal documents to begin the lawsuit.
Cory Wanless, an attorney with Klippensteins Barristers and Solicitors, said once the process begins, it could take “five years or more” until a verdict is reached.