By: John Hawke
The 1798 Penetanguishene Purchase, Crown Treaty 5 is a complex issue where the lands it involves are fused with the 1815 Crown Treaty 16, the Lakes Simcoe and Lakes Huron Purchase. The 50,000 Acres allegedly ceded in regards to Crown Treaty 5, the Penetanguishene Purchase were consolidated and surrendered by the 1815 Crown Treaty 16 where 250,000 acres were ceded. This is how those 50,000 acres were unlawfully ceded. Slight of hand. This was the basis of a claim submitted by the Chippewa Tri Council (Beausoleil, Rama and Georgina Island First Nations) in 1986 and 1990 to Canada’s Specific Claims Branch but was rejected by Canada.
Map of The 1798 Penetanguishene Purchase (Crown Treaty No. 5) was clearly not for 50,000 acres.
Elders and Leaderships who’ve passed on throughout the generations from Beausoleil First Nation along with descendants of Chief Aisance, a signatory of the 1798 Penetanguishene Harbour Purchase have always claimed the agreement was only for Penetanguishene Harbor.
On May 19th, 1795 representatives of the “Chippewa Nation” signed a provisional agreement at York; This document indicated that if they received goods worth 100 pounds in Quebec currency they would cede the lands “from the head of Opetiquawising to Nottowaysague Bay including the harbor of Penetanguishene. 1
“Keewaycamekeishcan: who used the Otter totem as his mark, meaning “He went in place of somebody.” This man likely signed the tentative agreement in the absence of one of the chiefs. 2
The Government took no immediate action to fulfill the terms of the provisional agreement. While no money or goods were given no attempt was made to take possession of the lands. Simcoe left the colony in July 1796 and in his absence Peter Russell became the Administer of the Province.
Band Members also speak on traditional hunting grounds south of Nottawasaga Bay in lands covered by the 1815 Lakes Simcoe-Huron Purchase, (Crown Treaty No. 16). 3 It is still of Chief Aisance family’s oral tradition that still holds that there were family hunting grounds within the area of today’s Thunder Beach. 4 The description of the ceded territory was vague.5 The maps accompanying the treaty demonstrated the extent to which the surveyors were unfamiliar with the area. 6
Francis Gore became Lieutenant-Governor of Upper Canada in 1806 and he believed that before the Penetanguishene Peninsula could be developed, the government would have to build a road leading to it from Lake Simcoe. He asserted that the government should purchase these lands in this vicintiy not only to open up a road but also to open it up for settlement.
In June 1811 he sent Williams Claus, Deputy Superintendent of Indian Affairs to negotiate yet another provisional agreement with the Ojibwes of Lake Simcoe and Matchedash Bay. This Treaty was seeking the Ojibwe to cede 250,000 acres of land situated between Kempentfelt Bay on Lake Simcoe and Penetangusihene Bay on Lake Huron. 7
At this meeting of this tentative agreement Deputy Superintendent of Indian Affairs William Claus told the Chiefs
“I do not consider that we have a right to take possession of the land until the deed of conveyance shall; be executed and there is no objection to you occupying the garden grounds at Penetanguishene Bay. 8
Although the goods were sent from England the following summer, they were needed by the government for other purposes and therefore were not used to purchase the land. With the outbreak of war with the United States in 1812, the government believed it could no longer postpone creating a naval base in the area. Claus assured the Chiefs that although the government had sent troops
“to open roads and form an establishment on Lake Huron,” it recognized that “all the Lands north of Lake Simcoe” were “still the property of the Indians.” 9
In November 1814 a military road was finished stretching from Kempenfelt Bay on Lake Simcoe to Penetanguishene, and in 1815 a blockhouse was built at that harbor. 10 After the war ended the government redirected its attention to obtaining a cession of lands north of Lake Simcoe. In November 1815, “Kinaybicoinini, Alsace and Musquckey, the principal Chiefs of the Chippewa Nation of Indians” signed a treaty agreeing to cede 250,000 acres which was the final ratification of the provisional agreement in June 1811 11, The Lakes simcoe- Lake Huron Purchase, Crown Treaty No. 16
Map of 1815 Lakes Simcoe-Huron Purchase, (Crown Treaty 16) 250,000 Acres Surrendered
This Treaty however did not contain no reference to the blacksmith which these chiefs had requested in 1811; no mention was made of the promise Claus had made in that year that they could continue to use their lands in and around Penetanguishene. 12
These bands also acted together in September 1850 when W.B Robinson, chosen by the executive Council to negotiate the cession to the crown of the lands on the north shores of Lakes Superior and Huron, 13 did not include them in the negotiating or signing of a treaty concerning bordering on Lake Huron. Chiefs Assance, Snake and Yellowhead met with Robinson one week after the Robinson Treaty had been signed and they asserted that a tract of land on lake Huron between Penetanguishene and the Severn River belonged to them and had never been ceded to the Crown. Robinson later recorded:
“Should it appear that these Chiefs have any claim I think I could get their surrender of it for a small amount.” 14
1798 Treaty 5, Penetanguishene (50,000 acres) is larger on official Maps of Ontario Treaties then what was surveyed in the 1795/98 Provisional Agreement and Treaty Maps
The total Population of the people currently living in the 1798 and 1815 preConfederation Crown Treaty 5 and 16 area is 86,921. The Townships are; Tiny, Tay, the Town of Midland, the Town of Penetanguishene 8,962, Springwater Township and Oro-Medonte Township.
The 2018 Williams Treaties Settlement Agreement attempted to resolve such injustices in the 1923 Williams Treaty where harvesting rights were unlawfully surrendered and where there was no proper compensation for the surrender of northern hunting grounds (13 Million Acres separate from the lands in the pre-confederation treaties) The inclusion of the complex issues of these Pre-Confederation Treaties should’ve remained as separate claims as this settlement agreement consolidated such issues with the intent to extinguish the Indigenous Title to such lands for Canada’s benefit.
The 2018 Williams Treaties Settlement Agreement was a repeat of history of the 1798 Penetanguishene Purchase Treaties and 1923 Williams Treaty. The 1923 Williams Treaty and 2018 Settlement Agreement is not a Treaty as there are no annuities for traditional territories being occupied, no rights to education and health care exemplified in the numbered treaties Canada has with other First Nations and provision to remove Canada’s assumption of jurisdiction imposed by the 1867 BNA Act and 1982 Constitution Act.
LEGAL ARGUMENTS
Queen Anne’s Order in Council an Imperial Statute (Constitutional Law) 1704, 1740, 1773 as a result of Mohegan vs Connecticut recognizes the Sovereignty of the Indigenous Nations of North America whereas any disputes between Settler Governments and the Indigneous are to be settled in an impartial third party court which was created and never disbanded. The Royal Proclamation 1763 a constitutional document of Canada recognizes the “several Nations or Tribes of Indians, with whom We are connected”. 15 in which was integrated with the 1764 Niagara Covenant Chain Belt Treaty that recognizes the Sovereignty and Jurisdiction of the Crowns Indigenous Allies.
This rule of law exemplifies that Clan Territories of a Tribe and Nation where Indigenous Title can not be extinguished by the Indian Act Elected Band Council’s which are entities created by Canada. First Nations Band Councils are not a Clan, Tribe or Nation and have no lawful authority to represent our peoples and lands.
In a supreme court ruling in the Nowegijick case it states that “treaties and statutes dealing with Indians should be given a fair, large and liberal construction and doubtful expressions resolved in favour of the Indians, in the sense in which they would be naturally understood by the Indians.”16
The Ojibway may not have fully understood that the cessions meant the full surrender of all lands and rights. According to Donald B. Smith in his research in his book The Dispossession of the Mississauga Indians: a Missing Chapter in the Early History of Upper Canada shares “they had no concept of such a surrender, and they were assured that they could ‘encamp and fish where they pleased.” 17
There is debate as to whether our ancestor signatories understood the full meaning of the Upper Canada Land Surrender treaties. Robert Surtees postulated that those who agreed to sell their lands to the Crown during the late eighteenth century did not understand that the treaties represented the complete abandonment of their rights over the lands in question18
The terms and language found in the texts must be tempered by a close examination of what the parties understood them to mean, of the historical context of the period, and of the intent of the agreements. Specifically, the issue of “hunting” or “hunting grounds” is one of considerable interest. Throughout this period, Aboriginal lands were constantly described as “hunting grounds” in official documents and correspondence of the Indian Department.
In light of this usage, did British colonial officials make any distinction between the “hunting grounds” and Aboriginal title in their policies and their practices of treaty-making?
Indian Treaties and Surrenders: From 1680 to 1890 Vol. I pg. 16-17
A History of Christian Island and the Beausoleil Band, University of Western Ontario, (1990) Volume III pg. 22 (Interview with Doris Fisher, April 1989)
A History of Christian Island and the Beausoleil Band, London On: Department of History, University of Western Ontario, 1990, Volume III Pg. 5 Interview with Merle Assance Beadie, April 1989; descendant of Chief Aisance signatory of Penetang Purchase
Ibid.
Ibid.
A History of Christian Island and the Beausoleil Band, London On: Department of History, University of Western Ontario, 1990, Volume III Pg. 26
NAC, R.G 10, Vol 4, Indian Affairs , Lieutenant -Governors Office, Upper Canada, Correspondence, 1815-1816, Francis Gore to Elisha Beamen and Henry Procter, 14 November 1815, p.1802, See also Robert J. Surtees, “Indian Land Cessions in Ontario, 1763-1863: The “Evolution of a System” (Ph.D thesis, Carleton University, 1983), pp.175-177. Each of these works deals with the controversial “purchase” made during the 1780’s
Proceedings of a Meeting with the Chippewa Indians of Matchedash and Lake Simcoe at Gwillembury, 8-9 June 1811, C.O.42,351, P.132 (mfm. Ontario Archives)
NAC, R.G.10,vOL.4, Indian Affairs, Lieutenant-Governor’s Office, Upper Canada, Correspondence, 1809-1814, William Claus to Edward Macmahon, 29 December 1814, pp. 1624-1625
Stanley, Atlas of Great Lakes Indian History, p.289
Indian Treaties and Surrenders: From 1680 to 1890, pp. 42-45
Indian Treaties and Surrenders: From 1680 to 1890 pp. 44-45, p.176 and p. 177. For further discussion of the background to and significance of this treaty see Johnson, pp. 367-374
See Julia Jarvis, “William Benjamin Robinson,” in The Dictionary of Canadian Biography, Vol. X, 1871-1880 (University of Toronto Press, 1972), PP. 622-625
W.B. Robinson to Colonel Bruce, 24 September 1850, reprinted in Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories, including the Negotiations on which they were based, and other information relating thereto. ( Toronto: Belfords, Clarke. 1880_, Facsimile edition reprinted by Coles Publishing Company, Toronto, 1979, p. 20
1763 Royal Proclamation
Nowegijick v. The Queen, [1983] 1 S.C.R. 29.
Donald B. Smith. “The Dispossession of the Mississauga Indians: a Missing Chapter in the Early History of Upper Canada,” in Ontario History, vol. 73, no. 2, June 1981, p. 71
Surtees, op cit, p. 23