Tsilhqot'in First Nation ruling means revisiting the James Bay Treaty, says lawyer

Toronto lawyer Murray Klippenstein believes the Supreme Court’s affirmation of aboriginal ownership of traditional hunting grounds in British Columbia lends “enormous clout” to another aboriginal land dispute in Ontario.

Klippenstein represents the Mushkegowuk Council, the regional Cree government which is challenging the government’s interpretation of Treaty No. 9, signed in 1905 and 1906 by various First Nations leaders in northern Ontario.  

The James Bay Treaty, as it’s called, covers two-thirds of northern Ontario, the largest tract of land ever negotiated between the government and aboriginal people in Ontario. Ever since, aboriginal people have argued that what was promised to aboriginal leaders and was not included in the treaty documents.

The legal challenge was triggered by the discovery of a 100-year old diary written by one of the original government negotiators. Historians discovered the diary in 2011 in the archives of Queen’s University in Kingston.  

Klippenstein remembers sitting in his office, struggling to make out the handwritten notes and suddenly realizing that what he was reading appear to show that government negotiators deliberately misled the aboriginal leaders who eventually signed the James Bay Treaty.

The diary belonged to Daniel MacMartin, a government commissioner who travelled by canoe across Ontario’s north verbally presenting the treaty to aboriginal leaders who were unable to read the treaty, prepared in Ottawa and written in English.  

Klippenstein says he read the diary "from beginning to end with increasing amazement," as it documented what he claims was "a gigantic fast one" perpetrated against the elders who became signatories to the treaty.

The most telling detail says Klippenstein in the eye witness account comes on the page where MacMartin writes that, "The chief said, ‘we accept what you have stated.’"

Klippenstein says that’s when he realized the enormous legal significance of what he was reading. According to Klippenstein, the chiefs — unable to read the legal document — were duped by a verbal promise that they would keep their traditional lands for hunting, fishing and trapping. Negotiators deliberately omitted any mention of the so-called take-up clause contained in the treaty document which permitted the government to “take up” the land at any point for its own purposes, from fishing to mining to economic development.  

In effect, says Klippenstein, the treaty promises that "we guarantee your hunting rights except when we want to take your land."

Klippenstein says the Supreme Court’s affirmation of aboriginal ownership in B.C. sends a clear message that Canadians will “have to deal with the fact that aboriginal land rights are very real, they exist today and we all have to deal with them.”

Klippenstein marvels at MacMartin’s detailed description of those negotiations.

"It’s mind-boggling," says Klippenstein, "that it happened and mind-boggling that the government negotiator wrote that down knowing the significance of what he was doing."

Is it possible that MacMartin supported his fellow negotiators and was simply making a record of what had been said?

Klippenstein doesn’t think so. "I see it as an amazing story about what was going through his mind," says Klippenstein. "MacMartin decided to write a detailed record of a gigantic fraud. I guess he was torn between his role as a government negotiator and seeing what was being done to aboriginal leaders. Nowhere does the diary mention the take-up clause allowing the government to use the land for resource development."

"He wrote down what he saw and heard, and didn’t know what to do with it."

The diary wasn’t filed with the other treaty documents submitted to the government. Instead says Klippenstein, MacMartin "stashed it away and went to his grave" with what he knew.  

In the diary, says Klippenstein, MacMartin doesn’t express criticism of the process. "It’s strictly factual," says Klippenstein.

Last summer, the  Mushkegowuk Cree held a conference in Moose Factory, at which the original signed treaty parchment was displayed along with MacMartin’s handwritten diary. The conference ended with a reenactment of the signing of the Treaty documents, as remembered by Cree elders. Many of the chiefs who signed the document made a simple ‘X’ beside their name.  

The present-day lawsuit doesn’t ask for financial compensation. Instead, it asks the court to make legally binding declarations affirming the Treaty promises to the people of Taykwa Tagamou, one of the First Nations covered by the James Bay Treaty.

The lawsuit asks the court to rule that Treaty 9 doesn’t permit the government to extinguish the rights of the Taykwa Tagamou to hunt and fish over lands in their traditional land through allowing disruptive mining projects, for example, without the First Nation’s consent.

The defendants include the governments of Canada and Ontario and two mining exploration companies that have staked mining claims and have been conducting exploratory work in the Cochrane area without First Nation’s consent.

To Klippenstein, the B.C. ruling by the Supreme Court adds legal heft to that 1905 diary.  

"Whether the government misled their leaders or not, the aboriginal claim to the land has to be taken seriously," says Klippenstein.