Lawsuit over Indigenous hunting and fishing rights argues treaty should go in the trash

A lawsuit filed on behalf of Indigenous hunters and fishermen in the North Bay area could have wide reaching implications. It claims the treaty covering much of northeastern Ontario is invalid, because the people who signed it had no right to give away someone else's homeland.

Suit wants Robinson-Huron Treaty declared invalid and Algonquin territory recognized

Lorne Stevens is one of the commercial fishermen from Nipissing First Nation who are behind a lawsuit claiming that a northern Ontario treaty was signed by the wrong Indigenous people. (Erik White/CBC )

A lawsuit filed on behalf of 40 Indigenous hunters and fishermen in the North Bay area could have wide reaching implications.

It claims the Robinson-Huron Treaty of 1850, which covers much of northeastern Ontario, is invalid, because the people who signed it had no right to give away someone else's homeland.

The suit was filed earlier this month on behalf of Algonquin hunters from the Sturgeon Falls area and commercial fishermen from the nearby Nipissing First Nation.

The hunters were charged by provincial conservation officers in years past for hunting outside of their traditional territory, which under the Robinson-Huron Treaty, belongs to the Anishnabek or Ojibwa people.

The fishermen were also charged by the Ontario Ministry of Natural Resources last year under an agreement between the province and Nipissing First Nation.

It says that anyone who doesn't follow the commercial fishing rules set out by the Nipissing chief and council will be turned over to the MNR to be charged under Ontario laws.

Michael Swinwood, the lawyer representing some 30 fishermen from Nipissing First Nation, argues that the new regulations imposed by the First Nation and the provincial government are a form of "apartheid." (Micki Cowan/CBC)

Those fishermen contacted lawyer Michael Swinwood, who was already representing the Algonquin hunters.

He argues that all of the Indigenous people in the area covered by the Robinson-Huron Treaty are really Algonquin and descended from the people of what was once known as the Amikwa Nation, which stretched from what today we call Sault Ste. Marie to the Atlantic Ocean.

"It fits into the story of divide and conquer when you're able to say no, this tribe isn't connected to that tribe, but it just isn't so. They're all of the same root and they're all one," he says.

Swinwood says historic accounts show that the treaty in 1850 was signed between the colonial Canadian government and Potawatomi leaders from present-day Wisconsin, who had no right to speak for the people who actually lived in this area.

The lawsuit argues that this makes the treaty invalid, meaning Swinwood's clients can't be charged with fishing and hunting violations by the first nations governments, like Nipissing, created by that treaty or by the provincial and federal governments.

If the lawsuit is successful, it would dissolve any legal relationship between local Indigenous peoples and the Canadian government and likely lead to negotiations for a new treaty. 

A map showing the area covered by the Robinson-Huron Treaty of 1850, which a new lawsuit claims is invalid. (Whitefish River First Nation)

This comes as the 21 First Nations covered by Robinson-Huron are in the midst of a court battle to get more government funding based on the terms set out in the treaty.

"The Robinson-Huron Treaty really wasn't beneficial to them anyway," says Swinwood.

"When you get right down to it, there's nothing but hassle all the way through, so what good is it?"

The Anishnabek Nation and Nipissing First Nation declined to speak as the matter is before the courts.

The Ontario government could not be reached for comment.

The federal government provided the following statement:

"Honouring Canada's treaty obligations to Treaty First Nation peoples and working collaboratively to renew the nation-to-nation relationship based on recognition of rights, respect, co-operation and partnership is important to the Government of Canada. As of February 8, 2018, to the best of its knowledge, Canada has not been served with any notice of legal action on this matter."