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Treaties and Land Claims

Inside the fight for $120B: How Canada’s broken treaty promise sparked a battle over ‘mino-bimaadiziwin’ — the good life

December 15, 2023

Ontario First Nations who were promised a fair share of resource revenue instead got $4 each a year. A court ruling could soon change their futures.

Michano Heron Bay south
Duncan Michano is chief of Biigtigong Nishnaabeg, a First Nation whose traditional territory lies on the northern shore of Lake Superior. He’s pictured on the site of the former community of South Heron Bay.David Jackson For the Toronto Star

The Toronto Star: BIIGTIGONG NISHNAABEG—Duncan Michano drove his silver pickup down a dirt road lined with golden tamarack trees. Branches scraped against the windows as the truck lurched over rough terrain on the narrow path. Inside, a compass and a tin of sardines rattled on the dash.

It was a cold fall morning and Michano, the chief of Biigtigong Nishnaabeg, a First Nation whose traditional territory lies on the northern shore of Lake Superior, was headed deep into the bush to search for the ruins of an old town that once stood here, a place he’d visited often during his childhood.

Throughout his life, Michano, 78, had been shaken by several powerful revelations that he calls “Holy F moments.” The old settlement he was looking for had triggered one of them.

The town, which locals called Heron Bay South, seemed to “spring up out of nowhere” sometime in the early 1940s, Michano said. Located two kilometres north of the reserve, or a 20-minute walk for young Michano and his “chums,” it was built to house workers in the booming pulp industry. A flume that cut through the settlement carried logs to Heron Bay, where they were loaded onto boats and shipped across the Great Lakes to a pulp mill in Thorold.

As a child, Michano would wander the town in awe, noting the differences between Heron Bay South and his own community. They had running water, electricity and indoor plumbing. Workers and their families lived in rows of new company houses. Seasonal staff stayed in comfortable apartments with hot showers. Families attended events at the baseball diamond, recreation centre and curling rink.

Meanwhile, Michano’s own people lived in poverty. “We had no electricity, no water,” he said. “We used outside toilets. There weren’t even wells back then. We had to get water from the creek.”

Michano, who has small brown eyes, a lampshade moustache and a head of bright white hair that looks perpetually windswept, parked in a clearing and stepped outside, his shoes crunching on the gravel underfoot. The sky was overcast but fall colours lit the forest.

Tamarack trees grow in the destroyed former community of South Heron Bay. David Jackson For the Toronto Star

“The old water plant was in there,” he said, pointing to a piece of concrete in a patch of tall grass. “You can still see remnants of the foundation.”

Michano knows the land in this region like his own skin. He walked the dirt roads, noting where buildings once stood. The infirmary here. The recreation hall there. Two churches. A row of houses.

To Michano, the non-Indigenous people of Heron Bay South seemed to have everything they needed to achieve what the Anishinaabe people would call mino-bimaadiziwin, a spiritual concept that, roughly translated, means “the good life.” It’s a principle guided by tradition, including the seven grandfather teachings: wisdom, honesty, truth, respect, humility, bravery and love. But it also means living comfortably, Michano said, and with the ability to reach one’s potential. “Not just surviving,” he said, “but thriving.”

Seven decades after Michano first observed the inequities between his community and the company town built next to it, mino-bimaadiziwin has become a central issue in a landmark broken treaty promise case with up to $126 billion on the line.

A shed sits beside a new housing project on the Biigtigong reserve.David Jackson

In 1850, the Anishinaabe signatories to the Robinson-Superior and Robinson-Huron Treaties surrendered their land to the Crown in exchange for a promise: that wealth generated from the resources would be shared with them. For 150 years, governments have failed to honour that agreement.

Throughout the northern Great Lakes region, a forested landscape dotted with towns separated by highways that cut through cliffs of red sedimentary rock, the Anishinaabe people lived on reserves adjacent to well-appointed residential settlements built to exploit mining, forestry and fishing resources. The non-Indigenous newcomers reaped the benefits of the land, while the First Nations did not.

The treaty beneficiaries are now nearing the end of a 25-year legal battle in which they have argued — successfully — that the federal and provincial governments deprived generations of Anishinaabe of the wealth they were owed, resulting in poverty, hardship and lost opportunity.

The court has already ruled in favour of the First Nations. In 2018, a judge found that the treaty promises were “completely forgotten” by the Crown. All that’s left to determine is the amount owed.

It’s a case that could result in the largest litigation award in Canadian history, set precedents in an emerging area of law and redefine the relationship between the Crown and Indigenous groups.

Electricity and indoor plumbing have since come to communities like Biigtigong, but inequities persist. First Nations live with the legacy of generational poverty and colonial policies such as the residential school system and the Sixties Scoop, resulting in above-average rates of addiction, mental illness and other social problems. Reserve schools are underfunded and northern Indigenous communities have lower graduation rates than elsewhere in Ontario.

If the sum awarded is anything close to the $126 billion the First Nations are seeking, it would be game-changing. An award of that size could lift entire communities out of poverty, clear the path the First Nations have already been forging toward financial self-sufficiency and help bands overcome the challenges that a legacy of colonialism has left them, including poverty, addiction and mental illness. It would also be a meaningful step toward reconciliation in a country that has been slow to fulfil its commitments.

For Michano, the ruins of Heron Bay South, and the circumstances under which the town was torn down — one of his “Holy F moments” — serve as a stark reminder of how generations of Anishinaabe have been held back. But more recent developments on the land signal that a long and hard-fought shift is on the horizon.

A forgotten promise

The Red Rock Indian Band is located 100 kilometres east of Thunder Bay, along Lake Helen.David Jackson For the Toronto Star

Twenty years before Confederation, the British government started issuing mining licences to prospectors searching for copper and other minerals on the vast territory north of Lake Superior and Lake Huron. But political figures in Toronto soon realized they had a problem: the Crown didn’t have title to the land. It was the traditional territory of the Anishinaabe people. 

The region had only seen sporadic non-Indigenous settlement, but the roughly 1,800 to 2,800 Anishinaabe inhabitants could already feel the impact of development, with lakes overfished, forests razed and hunting grounds destroyed.

Anishinaabe chiefs pushed back against the incursions. In 1846, a lawyer acting for one First Nation wrote to British officials that “by selling locations to individuals before having had some treaty with the Indians,” the government had “created much discontent.”

A tipping point came in 1849 when a group of Anishinaabe and Métis people marched to a copper mine that a Quebec company had established at Mica Bay, 100 kilometres northwest of Sault Ste. Marie, in a purported attempt to halt operations. British troops were dispatched to the area and several Anishinaabe leaders were arrested, and later released without charge. The incident forced the government to take seriously the Anishinaabe’s demand for a treaty.

In the summer of 1850, William B. Robinson, a fur trader and political figure who spoke Anishinaabemowin, was sent to negotiate.

Historical treaties typically involved ceding land in exchange for an annuity, an annual fee calculated per person. But the Robinson-Superior and Robinson-Huron Treaties, which were negotiated at the same time and covered an area roughly the size of Greece, were unlike any signed before or since. The two documents included a unique “augmentation clause,” which said the annuity could increase “from time to time” under certain circumstances, if it could be done without the Crown incurring a loss. 

That promise, like so many made to Indigenous Peoples, wasn’t kept. The last annuity recalculation occurred in 1875. It has remained at $4 per person since then.

No prior treaty in Canada or the U.S. had linked compensation to the land’s value. It was a stipulation that the Superior and Huron chiefs pressed for, and one that elders today say was their ancestors’ way of securing mino-bimaadiziwin for future generations.

“I see men with large hammers coming to break open my treasures to make themselves rich and I want to stay and watch them and get my share,” Chief Shingwaukonse of the Huron group, a key player in the negotiations, wrote to the governor general.

In her 2018 decision, Superior Court Justice Patricia Hennessy stressed that the Crown and First Nations were equal partners in fair negotiations. The promises, she said, were “completely forgotten” by the Crown.

Chief Marcus Hardy of the Red Rock Indian Band.David Jackson For the Toronto Star

Marcus Hardy grew up in the 1980s learning about the treaty from his elders on the Red Rock Indian Band reserve, which lies an hour’s drive east of Thunder Bay, on rugged terrain surrounded by boreal forest. But the historical documents unearthed during the litigation shed new light on how hard his ancestors fought for a deal that would secure a strong future.

“It was an agreement to live and coexist together for mutual benefit, and it was never followed,” Hardy said, standing outside the butcher shop in his community on a rainy day in October, wearing a knit sweater that covered thick tattooed arms.

Hardy, 40, was a teenager when Red Rock and other nations first launched the lawsuit, in 1999. Twenty-five years later, they are still fighting for justice, with Hardy, a Canadian Armed Forces veteran who served in Afghanistan before he was elected chief in 2019, at the helm.

“Half of my life we’ve been battling,” he said. 

Outside the butcher shop, a moose that had been shot the day before dangled from a game hanger. Later, the hunter, along with his son and nephew, would carefully peel the hide away, scraping their knives against the warm layer of fat, and carry segments of the animal inside to slice the meat into roasts and fast-fry steak. Built three years ago to improve food security and promote traditional knowledge sharing, the shop can be used by any of the band’s roughly 2,300 members, 340 of whom live on reserve.

Steven Lesperance, right, helps his father butcher their family’s young bull moose in front of the community butcher shop on the Red Rock Indian Band Reserve. David Jackson For the Toronto Star

Hardy radiated energy, speaking with excitement about everything from a planned traditional hide-tanning operation to mining business partnerships to the menu options at Auntie’s Kitchen, a lunch counter at the gas station next to the band office. (They were serving chicken and dumplings that day, a dish that elicited groans of pleasure from local hunters.)

If the court accepts submissions from Robinson-Superior plaintiffs on how funds should be divided among the 12 communities involved in the litigation, Red Rock will receive 13.83 per cent of the final amount. That could mean up to $17.5 billion, minus legal fees, for Red Rock. All figures, of course, are hypotheticals. 

Leaders from several First Nations said they expect that a large portion of any recovered funds would be invested in infrastructure, education and health, and in long-term funds to grow wealth for the next seven generations. Any decisions on the funds in Red Rock will be made by the community as a whole, Hardy said. “We represent the people and we take direction from the people.”

For Hardy, the case is about much more than money owed. “It’s about the erosion of our rights, the erosion of the ability for our people to live their lives,” he said. “How many people would have not needlessly passed away if they had proper health care? If they had proper homes to live in, clean water, access to medicines?

“Can you believe that our parents and our grandparents went through all of that?” Hardy said, shaking his head. “And we’re still here.”

A chance discovery

Duncan Michano had one of his “Holy F moments” while flying from Ontario to Alberta, sometime in the mid-1970s.

Michano had recently started working as a warden at Pukaskwa National Park, near Biigtigong, and was headed to Jasper for training. At the Thunder Bay airport, he searched for something to read and came across a book about Canada’s treaty history, first published in 1880. On the plane, he flipped to the section on the Robinson-Superior Treaty.

Canada considered Michano a “beneficiary” of the treaty, but he had never once collected the $4 cheque that federal workers delivered annually, in person, during “treaty day” celebrations on the reserve. “It wasn’t worth my time,” Michano said. “Why would I go there and collect four bucks?”

As Michano scanned the book, he was astounded. Biigtigong, then known as Ojibwes of the Pic River First Nation, was not listed as a signatory. “We didn’t sign that treaty,” he told Biigtigong’s chief when he returned from the trip. The government had always treated their members as parties to the treaty, but contrary evidence was there all along, Michano thought. 

In 1979, the band launched a land claim, which the federal government rejected. A title case, separate from the annuities case, is before the courts. Biigtigong claims their 20,000 square kilometres of exclusive and shared territory is unceded. 

Michano’s discovery highlights yet another complication in the fraught legal battle. Of the 12 First Nations that are part of the Robinson-Superior annuities case, only five identify as signatories: Red Rock Indian Band and Whitesand First Nation are the original plaintiffs, while Gull Bay, Fort William and Michipicoten joined later.

Seven others, including Biigtigong, say they didn’t sign, even though Canada has always treated them as if they were signatories.

For the group of seven, including Biigtigong, whether and when they receive compensation in the annuities case will depend on how their title claims are resolved. Several outcomes are possible. If Biigtigong loses its land claim, the band could seek to collect its share of any funds awarded in the annuities case. If the band wins, it may be entitled to compensation for unextinguished aboriginal title, or could belatedly choose to sign the 1850 treaty and collect the annuities award.

The land claim led Michano to another “Holy F moment” — a surprising revelation about Heron Bay South. 

All that remains of the destroyed former community of South Heron Bay is a foundation wall from the former water plant. The town was much more prosperous than the neighbouring reserve.David Jackson For the Toronto Star

In 1970, the entire town was demolished after the logging route shut down. To Michano, it seemed like Heron Bay South was there one day and vanished the next. He could never understand the destruction, when nearby Indigenous communities had so many needs.

The revelation came decades later. Biigtigong lawyers, researching the land claim, found a letter from June 1970 in which Ottawa rejected a proposal to acquire the town for the First Nations, saying it would require a “substantial investment” and concluding there was little to suggest it would “improve the economic or social position of the band.”

In a second attempt at a deal, the Ontario Paper Co. offered to give the townsite to the Crown — for free — in exchange for a tax write-off.

Department of Indian Affairs officials met band members to discuss the possibility of the First Nation using the town for residential purposes if they paid rent for operating costs. The officials stressed the costs that the First Nations would be responsible for, including rent, utilities and maintenance. 

Biigtigong was “still keenly interested in acquiring the townsite,” a departmental official wrote afterward in an assessment. “However, when they realize the amount of rent required to maintain the site, few, if any, band members will be able or willing to occupy the houses and it will be found impractical to acquire the townsite even at ‘nominal cost.’ ”

As predicted, Biigtigong withdrew its proposal.

Soon after, the Heron Bay South townsite, which included 19 houses, a four-unit apartment building and numerous other structures, was demolished. “It was a fully functioning community,” Michano said, trudging through the old townsite 53 years later. “And now it’s bush.”

Billions on the line

In a Thunder Bay courtroom in September, lawyers for the roughly 15,800 Robinson-Superior Treaty beneficiaries argued in closing submissions that the First Nations are owed as much as $126 billion. That sum was calculated by Joseph Stiglitz, a Pulitzer prize-winning economist called as an expert witness.

Stiglitz, who testified for the First Nations, acknowledged the figure induces “sticker shock.”  “If you’ve owed somebody something, year after year, for 170 years, it’s a lot of money,” Stiglitz told court. 

Canada argued in written submissions that the award should be in the range of $578 million and $2.45 billion, of which the federal government should be liable for a maximum of 20 percent, with Ontario paying the rest.

While the Huron and Superior cases were heard together in 2015, the groups diverged earlier this year when the Huron group came to a proposed $10.5-billion settlement with the federal and provincial governments. The Superior group proceeded alone to the trial’s third and final phase. 

Two decisions are now pending.

Justice Hennessy, who has presided over the complex case since 2015, must determine how money is owed and how costs should be divided between the two governments. 

Meanwhile, Ontario is arguing that Hennessy should not be the one to do that, saying it’s not up to the courts to decide how much is owed. The province appealed to the Supreme Court of Canada, which heard the case in November and has reserved its decision for a later date.

The federal government, which did not appeal, has conceded that the Robinson-Superior Treaty beneficiaries are owed a “considerable sum.” But in an argument that has raised eyebrows, the province said it owes nothing because the costs of colonization — building railroads, highways and other infrastructure — exceeded revenues from natural resources.

“For them to say that they’ve done the math and no money is owed, I think that’s preposterous,” Harley Schachter, a lawyer who represents several Robinson-Superior Treaty First Nations, including Red Rock, with co-counsel Kaitlyn Lewis.

How could nothing be owed, band members wondered, when across northern Ontario, the inequalities between Indigenous and non-Indigenous people were in plain sight for generations?

Raymond Goodchild is a member of the Pays Plat First Nation.David Jackson For the Toronto Star

A member of Pays Plat First Nation, a short drive from Biigtigong, Raymond Goodchild grew up in the 1960s in a tar paper shack with single-pane windows and sawdust insulation, heated by a small woodstove. He and his six siblings slept on mattresses scavenged from the dump. On winter nights they felt the cold north wind blowing through the shack. 

Meanwhile, in nearby Terrace Bay, a town built to support pulp industry, millworkers lived comfortable middle-class lives. To Goodchild, Terrace Bay was like another world, with glowing street lights, paved roads and stores with things he could never afford.

Now, Goodchild, 67, is a family support worker who guides others through challenges stemming from generational poverty and the legacy of colonial policies such as the residential school system, while working to heal from his own childhood trauma.

“When I had my daughter, I said a prayer,” Goodchild said. ” ‘Let me give her a better life.’ “


Supreme Court of Canada hears case on broken treaty promises with up to $126-billion award on the line

Wilfred King, a member of Gull Bay First Nation who was raised in the town of Armstrong, north of Thunder Bay, in the 1970s, pointed out that Indigenous children also missed out on the “nice to have” things. Families struggled to put food on the table. There was no money for hockey, music lessons or vacations. King, 59, said Indigenous children lived with little while “knowing that white people were taking vacations to Disneyland and places that you only dreamt of going.”

“It made you wonder,” said King, driving past rows of mini-homes on the Gull Bay reserve, “how could it possibly be that the original inhabitants of this country are living in abject poverty and non-native people seem to be enjoying all the amenities of life?”

King, an optimist, said that a monetary award in the range the First Nations are seeking would be transformative.  “It would extricate a lot of communities from the shackles of poverty and put First Nations on a level playing field with government industry in terms of economic development.”

His community needs water and sewer infrastructure, high-quality homes built for the environment, a new school. He dreams of hiring a full-time doctor.  “You’re talking an awful lot of money,” King said. “And if the money is used wisely, and invested properly, it will be game-changing.”

The gas station in Pays Plat First Nation is located along Highway 17, 180 kilometres east of Thunder Bay. David Jackson For the Toronto Star
From victims to victors

Earlier this year, Michano sat in a makeshift courtroom in Sudbury, holding an eagle feather on which he swore to tell the truth.

Michano was there to give elder testimony in the final phase of the annuities case, throughout which, in a remarkable incorporation of traditional practices into the legal system, the judge and lawyers from both sides had participated in traditional Anishinaabe sweat lodges, sacred fire teachings and smudge ceremonies. 

“If someone were to suggest to you, Chief Michano, that mino-bimaadiziwinsimply entails a subsistence living, what would you say to them?” asked lawyer Brian Gover, who represents Biigtigong in the case with co-counsel Spencer Bass.

“I’d swear at them,” Michano said in court. “That’s what I’d do because it would make me angry.”

Throughout his testimony, Michano had charmed the courtroom with his colourful language and storytelling — recounting his “Holy F moments” to Her Honour — but now he was incensed. He thought about the deprivations his people had suffered. He thought about his own childhood, which had been full of love but a constant struggle, with little room to pursue his ambitions. He thought about his children and grandchildren and what he hoped to help achieve for the next seven generations. Then he addressed Gover’s question.

“Each and every single parent on this planet, not just Anishinaabe, wants something better for their children and the successive generations,” he said. “And subsistence living doesn’t do that.”

“When you’re too damn busy trying to find something to eat, you don’t have time to give your kids a good life. You’re living, and that’s it. You’re alive. You’re not dying. “That’s not enough.”

Chief Patricia Tangie of Michipicoten First Nation broke down in tears when she spoke about how the generational poverty endured since the treaty, along with policies designed to destroy Indigenous culture, had turned her people into victims, leading to problems such as addiction, mental illness and incarceration.

“We want our people to become the victors that our ancestors intended them to be,” Tangie said.

Michano pointed out that Anishinaabe in the region had been prospectors, entrepreneurs and land stewards long before and after settlers arrived. What could they have done, he asked, if they had been receiving appropriate annuities all along that allowed them to invest in their ideas and skills?

“We don’t know,” he said in court, “and we’re never going to know because they didn’t have access to the resources.” As the legal actions play out, Michano is focused on opportunities for the next generation, with or without recovered funds, through what Indigenous groups call “own-source revenue” streams, business ventures through they collect income. Financial self-sufficiency is the long-term goal.

Two years ago, a sign appeared on the side of the highway where the Heron Bay South township once stood, marking the land for sale. Michano heard about it and drove immediately to see the seller.

The purchase was an easy decision, Michano said. For one thing, the band didn’t want others coming in with development plans that didn’t match their progressive vision and environmental standards. The old townsite, while private land, is also part of what Biigtigong claims as unceded traditional territory.

Some might see symbolism in the purchase, but Michano is practical. “It was more of a fear,” he said, “that someone else would buy the damn thing and put whatever the hell they want on it.”

Chief Duncan Michano walks a pier in Heron Bay which the community hopes to purchase.David Jackson For the Toronto Star

The band hopes to convert part of the property to reserve land and build a subdivision on it to help address a serious housing shortage. Many members who live away want to return to the community and the band needs more housing to fill 100 future jobs secured in a recent partnership with a mining company.

One day, Michano, who has three children, nine grandchildren and one great-grandchild, hopes to see Biigtigong members prospering on the land that was once Heron Bay South. While prone to skepticism, he’s feeling hopeful.

“I wish to hell I was young again,” Michano said, staring into the clear waters of Lake Superior. He had emerged from the bush and was now standing on an old wharf on the former industrial site where pulp logs were loaded onto ships bound for mills. “We’ve got a lot more opportunities for young people now.”

As a cold wind blew, Michano tucked his hands in his pockets and turned to walk back to his truck.

“But who knows,” he said, the hint of a smile on his lips. “Maybe there’s still opportunities for old buggers like me.”

Amy Dempsey is senior writer for the Star, based in Ottawa. Follow her on Twitter: @amydempsey.