Espanola lawyer disputes sharing reference in story

Espanola lawyer disputes sharing reference in story

To the Expositor:

There were inaccuracies in Michael Erskine’s article ‘Huron chiefs seek accounting of treaty funds’ (page 1, September 12).

He writes that by the treaty the tribes which signed it agreed to “share their territory.” This is wrong. As the treaty says, they agreed to “fully, freely and voluntarily surrender, cede, grant and convey’ to the Crown all of their “right, title and interest” in and to the lands surrendered, except the reservations they retained and with the qualification that they could hunt and fish on the lands surrendered.

There was no talk of “sharing” in the treaty deliberations and no mention of that in the treaty. This notion of “sharing the land” is a very recent concept basically invented by modern, romantic re-interpreters of Canadian history and given some legitimacy by equally very recent Supreme Court of Canada decisions.

The treaty does contemplate that the Crown might, at its sole discretion, increase the fixed annuity paid to individual Natives “…provided that the amount paid to each individual shall not exceed the sum of one pound Provincial in any one year, or such sum as Her Majesty may be graciously pleased to order.”

In no way does this wording suggest or promise any guaranteed raise in the fixed annuity or provide any “revenue stream” or any form of “revenue sharing” as wrongly asserted by the chiefs quoted in the article. No one even dreamt of that at the time.

But it’s no doubt true, as Chief Mahdahbee is quoted as saying that Robinson Huron Natives have not got what they bargained for from the treaty. What they bargained for in exchange for surrendering their lands was an annuity of 96 cents each (increased to $4 each in 1874), reservations and the right to hunt and fish on the surrendered lands.

What they have actually got is a lot more than they bargained for.

Over the many years since the treaty was signed the Canadian people, through their federal and provincial governments, have more than just honoured the treaty. They have, in more than reasonable fulfillment of their fiduciary and “Crown honour” obligations, granted countless, significant additional benefits to Natives, well over and above the treaty, for which there is no basis whatsoever in the wording of the treaty itself, and which go far beyond the original intent of it. In this way and others the Canadian people, through their governments, have acted more than honourably in the implementation of the Crown’s obligations under the treaty.

As evidenced by the website of Indian and Northern Affairs Canada, under the heading “You Wanted to Know: Federal Programs and Services for Registered Indians” free medical and dental care, massive grants for reserve infrastructure, funding schools, grants for post-secondary education, special business startup grants and loans, housing assistance grants and loans, programs for native youth and women, employment initiatives, funding native land claim lawsuits, funding the bulk of their “consult and accommodate” expenses, funding the various associations and federations that make up such a large and vocal part of the Native elites’ lobbying efforts, funding Native urban Friendship Centres, funding television and radio programs for Natives—these programs and initiatives constitute only a few examples of the very generous and honourable dealings of the people of Canada, through their governments, towards our Native fellow citizens, dealings which go way beyond the letter, spirit and original intent of the Robinson Huron treaty, and all the other old treaties.

Yours truly,

Peter Best, lawyer

Espanola

 

Comments

7 COMMENTS

  1. I have to take issue with the fundamental premise that Mr. Best bases his argument on – that the treaties drawn between the Crown and First Nations back in the early days of the settlements should be interpreted literally word for word – as per today’s legal contracts. First and foremost, the administrators like Bond Head who represented the Crown were not – in most cases – lawyers – and the other parties i.e. The First Nations signatories – did not have a tradition of either a written language or drawing contracts in a system similar to the British Common Law.
    Frankly, if one reads the simply language and statement of governing principles of a document such as the 1836 Bond Head Treaty – the closest that one can approximate to in today’s government “practices” would be a Memorandum of Understanding (MoU) which states in very high level broad brush terms – the basic principles which the parties (usually Minister to Minister or Private Sector legal entity) agree to – to be fleshed out in appropriate level of detail later as circumstances dictate.
    While I find Mr. Erskine’s writings and comments sometimes tend towards flourish without the support of facts, I find his use of the term “Share the Land” here to be no more egregious than any of the terms used by Bond Head back in 1836 (the patronizing term “Children” to describe the relationship between the King and the First Nations leaders is the most offensive – to my mind).

  2. Yet, the use of the terms ‘father’ and ‘children’ were not seen as derogatory by the parties back in the day, at least according to a number of easily referenced contemporary letters and petitions–a discussion with Alan Corbiere might be in order on those semantics. The symbolic nature of the Algonquin languages tends to cause confusion when laid up against sensibilities of today and have to be interpreted through historical context…the very basis of the Supreme Court decisions to which the author of the above letter also appears to take exception. IMHO federal government took on paternal obligations with the First Nations that lay the very foundations of the current obligation to equitably support governance and education–but many aspects of that paternal relationship and its expression are now clearly offensive.

  3. This Mr. Best fellow is a part of the problem we have with rectifying the treaty relationship. He is lawyer, but I’ll bet he has little knowledge of aboriginal and treaty rights law. The legal interpretation principle on treaties is long established in Canada. Where there is a dispute between Indians and the Crown over the meaning of a treaty or agreement, the Indian interpretation must be favoured by the Courts as the Indians did not read or write the language of the written version. He cannot possibly know how the Indians understood the agreement. How would he know what they understood at the time? Their descendents do and thank goodness the enforced assimilation process did not wipe out that understanding. Perhaps a reading of James Morrison’s, “The Robinson Treaties of 1850: A Case Study”, prepared for the Royal Commission on Aboriginal Peoples in 1993 would assist him with understanding some of the details. His prejudicial attitude is further exposed in his diatribe against the various services funded by the government, as these do not even begin to compensate for the loss of livelihood the treaty signatories intended to secure. I suppose Mr. Best would give up an inheritance he might have if another party said he was not entitled to it because he didn’t understand an agreement written in another language and by another culture whose designs were hostile to his continuing existence. Or perhaps a Will is “too old”, so just forget it. This is part of the challenge we face as First Nations fighting for the right to exist as Peoples in our own homeland.

  4. Thank you Mr. Peter Best, lawyer, for helping to perpetuate negative stereotypes about First Nations people and communities, based on misinformation, and for doing so in your professional capacity. All we ever seem to hear about is how the Indians are always there with their hands out, taking from the Canadian taxpayer. We never hear about how the overwhelming majority of us can’t even live in the place we call home, because there are not enough jobs, services and opportunity due to underfunding. Those people are left with no choice but to live and work in urban centers, paying their taxes like everybody else. What I also don’t hear about, is those people complaining that somebody of another race is on welfare, taking their hard earned tax dollars. As far as First Nations funding, the government wants to deal with First Nations as municipalities. As such, I think it’s unreasonable to lump transfer payments from the government for municipal operations/infrastructure in with treaty issues. That argument is irrelevant. In fact, those transfer payments are considerably less than comparable sized communities, especially considering a portion of the funds are earmarked for specifics like health and education. Hopefully someday, the Canadian public will know the truth, and stop believing in this prejudicial rhetoric.

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