Land of Incalculable Value: A Williams Treaties Overview

Originally published in TEACH Magazine, 100 Years of the Williams Treaties Special Issue, 2023

By Carolyn Gruske

In 1923, three parcels of land in southern Ontario totalling 52,384 km²—or just under five percent of the province—were the subject of a legal process that defined how they could be used and who would control them. The resulting Williams Treaties were not products of traditional treaty negotiations between sovereign First Nations and representatives of the Crown, and their creation sparked not only moral outrage, but also a series of legal challenges that lasted for nearly a century.

While the eventual settlement of the Treaties in 2018 did not wipe away decades of resentment or blot out the centuries of fraught Indigenous-settler relations that were the precursor to the signing of the Treaties, it did mark the end of a dark era, and—perhaps—the start of a better one.

The Basics: The Where and the Who

In a Treaty Research Report on the Williams Treaties, written for the federal government, author Robert J. Surtees defined the three separate parcels of lands involved in the Williams Treaties as follows:

1. “A Section enclosed by the northern shore of Lake Ontario, about one township in depth between the Trent River and the Etobicoke River;
2. “A parcel of land lying between the northern extremity of (1) above and Lake Simcoe and bounded approximately by the Holland River and the boundary between the counties of Victoria and Ontario;
3. “A very large tract lying between Lake Huron and the Ottawa River bounded on the north by the Mattawa River-Lake Nipissing and French Line and on the south by earlier treaties concluded in 1818 and 1819.”

The areas of land comprising the Williams Treaties were the traditional territory of seven First Nations, specifically the Hiawatha First Nation/Michisaagiig of Rice Lake, the Curve Lake First Nation, the Mississaugas of Scugog Island First Nation, the Alderville First Nation, the Beausoleil First Nation, the Chippewas of Georgina Island, and the Chippewas of Rama First Nation.

Prior to the arrival of Europeans, the people of these nations hunted and harvested on the land and fished in its waters. Even as settlements grew into villages, towns, and cities, no formal surrender of the lands in question occurred and no treaty was signed. Meaning the areas still belonged to the First Nations, and not the Government of Canada or the province of Ontario.

Treaty History in Canada

The Seven Years War that began in 1756 saw France and England on opposite sides of the battlefield. The conflict was far-reaching, beginning in Europe and then spilling over into what would later become Canada. Eventually, after many battles, the Treaty of Paris was signed in 1763 to end the war and most of France’s territory in North America was ceded to Britain.

Keeping control over a newly conquered territory from thousands of miles away is always challenging for an empire, but Britain didn’t just have pockets of French settlements to manage; it also had to concern itself with the Indigenous nations who had lived on the land long before the arrival of the English or the French—Indigenous nations that had largely sided with the French during the war.

King George III’s Royal Proclamation of 1763 outlined how Britain would govern its new territory and established English law as the law of the land. It also spelled out how the Crown viewed its relationship with the Indigenous nations, explains John Borrows, professor and Loveland chair in Indigenous law at the University of Toronto, and a member of the Chippewas of Nawash First Nation.

“King George III said we are going to make lands in North America reserved for Indians,” Borrows explains. “Those lands will be reserved for them until such time as a public meeting will be called and they will be asked if they want to surrender to or share their lands with the Crown.”

To build upon the Proclamation, a meeting was held in 1764 in Fort Niagara in the hopes of cementing the British alliance with the Indigenous nations. Over 2,000 representatives of 24 First Nations attended. Unlike the delivery of the Proclamation—a written document, imposed from afar without discussion—the meeting at Niagara was a more co-operative and collaborative process, according to Nathan Tidridge, a history teacher at Waterdown District High School who co-teaches a dual credit high school/college course in treaty studies.

“[It] allow[ed] the Indigenous people to explain how they underst[ood] the Proclamation and to ratify what was agreed to orally,” Tidridge says. “For example, what [did] Nation-to-Nation mean? What [did] sovereign mean? That [was] all clarified.”

The resulting agreement, known as the Treaty of Niagara, was the first treaty agreement made between First Nations and the Crown. It included the surrender of a stretch of land along the Niagara River, and also established the specifics of the relationship between Indigenous peoples and new settlers to the land that would become known as Canada.

To signify this relationship, the English commissioned wampum belts. Made out of shells, the belts were decorated with symbols and pictograms, including two figures holding hands, and represented the negotiations and the relationship. But despite the seeming understanding arrived at by both sides, the Treaty of Niagara was never officially recognized by Canada. Nevertheless, the process set the standard for how Indigenous nations expected subsequent treaty negotiations to play out, and how modern courts interpret the responsibility of the Crown towards Indigenous peoples.

Following the Treaty of Niagara, as more settlers moved into Canada, and specifically into areas that are now part of Ontario, there was a drive by the government to strike more treaties and gain access to Indigenous lands and resources. Some treaty negotiations went well and were conducted respectfully, with both parties fully involved. Some did not.

While these other treaties came into effect, the Williams Treaties areas continued to be a source of contention and dispute. Boundaries were never clearly established and there were areas of overlap with other treaties, including the Robinson-Huron Treaty and Treaty 20, especially as language used to set the borders was often poorly defined or explained in abstract terms (such as the distance one could hear a gunshot).

In 1867 under Confederation, the British North American Act assigned the federal government jurisdiction regarding “Indians, and Lands reserved for the Indians.” But the provinces were given the responsibility of managing public lands and control of natural resources—including timber and mineral rights, which were becoming very valuable as mining and forestry companies were looking to harvest wealth from the newly established country. The population of Ontario continued to grow and cities and towns continued to expand, and that created pressure on the governments to establish clear ownership of land titles.

The Indian Act came into effect in 1876 to address matters pertaining to Indian status, Indian bands, and Indian reserves. It also granted the federal government the power to regulate the day-to-day lives of Indians. In 1894, Ottawa and Ontario came to an agreement that since there was overlap in jurisdictions, any future treaty negotiations must involve the provincial government as well as the federal one.

The Push for a Treaty

The First World War brought a lot of changes to Canada. The economy was booming, especially the natural resource industries that made a home in the Williams Treaties areas. Indigenous peoples who had fought in Europe returned home with first-hand experience of how the world operated outside of North America. Discussions about human rights and self-determination were at the forefront of the international conversation.

All of those elements played a role in kickstarting the Williams Treaties, says Jackson Pind, an assistant professor in the Chanie Wenjack School for Indigenous Studies at Trent University and a mixed Settler-Anishinaabe historian from the Alderville First Nation.

He says there has been much discussion around whether, “the reason the government went for a treaty was [because] some of the First Nations in this area had spoken to the League of Nations and to British officials in London. Maybe the government was scared the First Nations would try to start their own country,” Pind adds. “They were worried because the First Nations were aware that the government had not kept their promises.”

In 1923, the provincial and federal governments set up a commission to settle questions about the area once and for all. Commissioners Robert V. Sinclair, Uriah McFadden, and Angus S. Williams visited the seven First Nations who lived in the Williams Treaties areas and found that they all “submitted ample and satisfactory proof of the occupation by them of the land referred to as the ancient hunting grounds of [their] ancestors … the value of which is almost incalculable.” The commission recommended that an official surrender of the land be undertaken.

Despite the nearly “incalculable” value, the province of Ontario set a hard limit of $500,000 as compensation for the land. That is what the seven First Nations received—a fraction of the land’s true worth—once the Williams Treaties were established and the title of the lands officially changed hands.

As if the meagre payment wasn’t insulting enough, there was a missing element to the Williams Treaties that doomed their acceptance and legitimacy from the start: every other treaty signed by the Crown preserved the rights for Indigenous peoples to hunt, fish, and harvest from the land, in accordance with what was set out in the Royal Proclamation. The Williams Treaties did not.

Maurice Switzer is a traditional Knowledge Keeper, a member of the Alderville First Nation, and a Williams Treaties expert and author. He has taught everyone from grade-school-aged children to university students to general members of the public about the Treaties. He says the lack of hunting and fishing rights was not an oversight.

“My grandfather, Moses Muskrat Marsden, was in the room in Alderville in November of 1923,” Switzer explains. “I have a piece of paper he wrote years later, where he said all the Indians wanted to know was could they still hunt and fish as they always had? He even remembered the commissioner’s name, Uriah McFadden, who said ‘yes.’ That was a lie.”

Switzer adds that without the ability to read the treaty documents and without the ability to hire lawyers to work on their behalf (which was prevented by law at the time), the Indigenous peoples had no choice but to trust what was being told to them by the commissioners—the same people who dictated the terms of the Treaties, without any input or discussion from the Indigenous nations or their representatives.

Post-Treaties Tensions

Although the Williams Treaties affected how Indigenous peoples living on those lands went about their daily lives, restricting their ability to support themselves, little changed, legally, until 1951 when the Indian Act was amended. At this time some of the most draconian restrictions were removed, including restrictions against political organizing, says Hayden King, executive director at Toronto Metropolitan University’s Yellowhead Institute. King is from the Beausoleil First Nation on G’Chimnissing and lives in the Alderville First Nation territory.

“Finally, you could leave the reserve, you could hire a lawyer, or you could demand change,” he explains. “For the next twenty years, basically, Indigenous peoples clogged the courts with grievances… Some of the First Nations started speaking with each other and working with each other and organizing amongst themselves. Some of the Williams Treaties First Nations started to do that, and that really spearheaded a lot of the movement towards demanding the Treaties be addressed.”

Court cases began to be heard across Canada. Three brought the Williams Treaties into the realm of public discussion: R. v. Taylor and Williams, R. v. Howard, and the Alderville litigation.

In 1981, the Taylor and Williams case argued that areas of Treaty 20 (in and around Peterborough, the Kawartha Lakes, and Durham) overlapped the Williams Treaties, and that since Treaty 20 guaranteed the right to hunt and fish, those rights should carry over into the overlapping Williams Treaties areas. The Ontario Court of Appeal agreed that Treaty 20 did grant those rights.

But in 1985, George Henry Howard, a member of the Hiawatha First Nation of Rice Lake, was fined $105 for fishing out of season in a spot covered by the overlapping Treaty 20 and Williams Treaties, explains Dan Shaule, a historical researcher who has instructed at universities across Canada and is a member of the Chippewas of Georgina Island.

“When [Howard] was in court, he argued that the 1818 treaty [Treaty 20] protected hunting and fishing rights,” says Shaule. “The Crown said no, the Williams Treaties surrendered your hunting and fishing rights. And the judge agreed with that.”

The Howard case also went to the Supreme Court of Canada, where it was dismissed.

The third major court challenge, the Alderville litigation, was first filed in 1992. The trial began in 2012 and continued through 2017. In the case, the Alderville First Nation sought financial compensation for the loss of its hunting and fishing rights in 1923. Before a judgment could come down, negotiations began between Ottawa, the province, and the seven Williams Treaties First Nations to resolve the outstanding issues that prompted the court case.

When a $1 billion settlement was announced in 2018, it was the largest in Canadian history at the time: $666 million from the federal government and $444 million paid by the province. It also included a formal apology by both levels of government, an option for the First Nations to buy back 44.52 km² of land to add to their reserves, and the restoration of their hunting and fishing rights.

But no matter the size of the settlement, it isn’t enough to account for nearly 100 years of mistreatment by a government that was supposed to have the best interests of Indigenous peoples at heart.

Settlement Uses

A tiny portion of the fund went directly to members of the seven First Nations, but those amounts hardly made up for lifetimes of inequality. Switzer says that his mother, who passed away just short of her 101st birthday, only received enough to cover the cost of a few years in a retirement home. She was the last living person who had been around to see the Williams Treaties first come into effect.

The majority of the settlement has been placed in trust by each of the seven First Nations and is being used to support their people and their communities. As a member of the Alderville First Nation Williams Treaty Trust, Switzer helps decide how the funds should be spent.

One of the uses the trust approved is to pay for every qualifying post-secondary student to go to university. As Switzer explains, the government doesn’t consider university education a treaty obligation—“breaking their promise that they would always provide a school house,” he notes. Instead, it is classified as a discretionary expense, meaning that many Indigenous communities don’t have enough funding for all their students who apply for it.

To date, 20 post-secondary students are benefiting from the settlement funds.

Some of the money has also been used to finance the repurchase of land for the reserve, which Switzer refers to as a “bizarre” situation—having to buy back what was theirs, rather than just having it returned as part of the settlement.

“I don’t think Canadians can get their heads around the bizarreness of these things,” he says, referencing not just treaty history but also the harsh restrictions of the Indian Act and the horrors of the residential school system. “They can’t believe this wonderful country they’ve grown up to think was the greatest country in the world would ever do such horrible things. And that’s a challenge. You know, there is no other country I’d rather live in, but boy oh boy, our past is not rosy.”

A Brief Note: Evolving Language

Teachers want to speak respectfully about Indigenous peoples in Canada, but that’s hard to do, especially as language and terminology have shifted over time—and since certain seemingly outdated names and terms still have legal meaning, says John Borrows.

“If we’re talking about general issues that aren’t legally precise, we should talk about Indigenous people. That would be the category that best captures how people are describing themselves today,” he explains. “If there’s a particular nation, then we would use that language, but the Williams Treaties actually do refer to Indians and tribes—it’s a reference to what’s in the legal text.

“What’s protected in our Canadian Constitution,” Borrows continues, “is Aboriginal rights and treaty rights of the Aboriginal peoples of Canada. Aboriginal and Aboriginal peoples are defined in Section 35 as Indian, Inuit, and Métis. The word Indian still has that legal force… and it also has this historic protection that flows through things like the Royal Proclamation.”

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Carolyn Gruske is an award-winning reporter and magazine editor. She often writes about the intersection of business, technology, and the law, but she also has a deep interest in educational topics.