Bringing News of the Saugeen & Nawash Ojibway by Fax
Communications Department, May 27, 1994
Fax: 519-534-2130 Phone: 519-534-5133
The Strange Case of Howard vs. Howard
This edition of Dibaudjimoh by fax tries to lay out some of the
facts of the Howard case without comment on the judgment of the
Supreme Court. We do, however, have a lot to say about the MNR's
decision to subject the Williams treaty First Nations to the
Provincial Game and Fish Act.
On May 12, 1994, the Supreme Court, on appeal from lower Ontario
courts, found against George Howard, a member of the Hiawatha Band
near Peterborough, on charges of unlawfully fishing on the Otonabee
River during a period prohibited by the Ontario Game and Fish Act.
The Supreme Court upheld the lower court decisions and found Howard
guilty on the grounds that:
There was no overriding error or new evidence presented that
could have affected the original trial judge's assessment of
the facts.
The terms of the 1923 Williams Treaty and the circumstances
surrounding the signing of that treaty represent a clear
surrender of "any remaining special rights" to hunt and fish
for the six bands who fall under that treaty.
All the courts have relied on the Treaty's so-called "basket
clause" for their rulings against Howard. This clause says:
... the said tribe and the Indians composing the same ... do hereby
cede, release, surrender and yield up to the Government of the
dominion of Canada ... all their right, title, interest, claim,
demand and privileges whatsoever, in, to, upon, or in respect of
the lands and premises described as follows ...
And Also all the right, title, interest, claim, demand and
privileges of the said Indians, in, to, upon or in respect of all
other lands situate in the Province of Ontario to which they ever
had, now have, or now claim to have any right, title, interest,
claim, demand or privileges, except such reserves as have
heretofore been set apart for them by His Majesty the King.
MNR Will Charge First Nations
Under Game & Fish Act
In spite of an agreement that had already been negotiated between
the MNR and the United Indians Councils who represent the Williams
Treaty First Nations, and in spite of the MNR's declared intention
to realize this agreement under the new "community licence"
legislation being developed in Ontario, Howard Hampton has already
told the bands the MNR will proceed in a different way. In
mid-June, MNR Conservation Officers will begin to charge Williams
Treaty people for offences under the Game and Fish Act.
Strangely, the MNR has apparently chosen to ignore an earlier
Ontario court decision (called Howard II) that found George Howard
not guilty on other Game and Fish charges. That court ruled that it
was neither against the law nor inconsistent with the Williams
Treaty for Mr. Howard to fish in waters adjacent to his reserve if
there were no waters on his reserve that could supply fish for food
or ceremonial purposes. That decision the government chose not to
appeal.
The Ontario Federation of Anglers and Hunters intervened at the
Supreme Court in Howard. They spent a little over $144,000 trying
to persuade the Court to re-think its traditional view of Sparrow.
Specifically, the OFAH wanted to redefine First Nations' priority
right to natural resources in an attempt to subject First Nations
to OFAH's own definition of conservation. In its ruling, the
Supreme Court did not mention the OFAH. Besides, the determining
focus of the ruling was the text of the Williams Treaty, not
notions of priority rights and conservation. Nevertheless, the OFAH
is hailing the decision as a "victory for conservation."
In our opinion, the decision to charge First Nations' peoples under
the Game and Fish Act is especially insulting when you consider the
MNR (acting on a suggestion from OFAH) has picked the weekend of
July 8 to turn the whole of Ontario into Canada's fishing hole. On
that date, anglers from across the country are invited to come to
Ontario to fish for the weekend without a licence.
Ramifications
According to the Supreme Court, the 1923 Williams Treaty stands and
the Bands, by signing it, extinguished their rights. This means:
The seven Bands under the Williams Treaty (Rama, Georgina Is.,
Christian Is., Hiawatha, Scugog, Alderville, Curve Lake), have
no section 35 Constitutional rights.
Hampton has chosen to treat the Williams Treaty people
completely differently from the other First Nations that
surround the Williams Treaty territories by subjecting them to
the Game and Fish Act.
Beginning mid-June, each band member, even if he or she would
hunt or fish for food or ceremonial purposes will have to
apply to the MNR for fishing and hunting licences and be
subject to provincial legislation governing seasons and catch
and bag limits.
These limits will be enough for neither food nor ceremony,
which means the Williams Treaty First Nations will be
prevented from practicing the spiritual aspects of their
societies.
The OFAH, emboldened by this decision (albeit for the wrong
reasons), will begin to flex its muscles in other areas.
The letter below can be used to let Canada and Ontario know how you
feel. It is based on a letter from Chief Akiwenzie to the press. It
suggests Ontario has a number of options besides inflicting the
Game and Fish Act on the 7 First Nations of the Williams Treaty.
Please use this letter to make the same suggestions yourself to
Ontario and Canada. Here are the addresses you will need:
Hon. Howard Hampton, Minister of Natural Resources
99 Wellesley West, Whitney Block, Room 6301
Toronto, Ontario, M7A 1W3
(ph: 416-314-2301; fax: 416-314-2216)
Hon. Bud Wildman, Minister of Native Affairs
135 St. Clair Ave. West, 12th Floor
Toronto, Ontario, M4V 1P5
(ph: 416-323-4370 ; fax: 416-323-4682)
No stamp is needed for mail to federal MPs:
Hon. Brian Tobin, Minister of Fisheries and Oceans
House of Commons
Ottawa, Canada, K1A 0A6
(ph: 613-992-3474; fax: 613-990-7292)
Hon. Ron Irwin, Minister of Indian Affairs
House of Commons
Ottawa, Canada, K1A 0A6
(ph: 613-997-0002; 613-992-6410)
A Letter to Canada and Ontario
Dear Minister:
Although the Supreme Court of Canada recently ruled against the
seven First Nation signatories of the Williams Treaty, I feel that
treaty is seriously flawed. There is no way the "basket clause" in
that treaty represents how I think we should be dealing with First
Nations in 1994. Whenever the rights of an individual or of a
people are extinguished, for whatever reason, the rights of all the
rest of us are diminished.
The Supreme Court decision leaves the First Nation signatories of
the Williams Treaty without the rights guaranteed by the
Constitution to all other aboriginal peoples in Canada. This
inequity will be intolerable if Ontario conservation officers begin
charging Natives in the Williams Treaty territories under the Game
and Fish Act.
There is another court decision, also involving George Howard, you
should use as your guide. In that 1991 case, the Ontario court
judge confirmed Mr. Howard's right to fish for food, social,
ceremonial or barter purposes in waters adjacent to his reserve if
there were no suitable waters on his reserve. The judge ruled that
doing so would be neither against the law, nor inconsistent with
the Williams Treaty. Ontario has not appealed this decision.
In its recent judgment, the Supreme Court drew a comparison between
the way Bear Island was lost and the Howard case. Yet the Ontario
government had the wisdom, the Bear Island judgment
notwithstanding, to negotiate a draft "treaty of coexistence" with
the Temi Augama. There is no reason why this cannot be done for the
seven First Nations who must labour under the Williams Treaty.
There are, then, a number of options open to Ontario and Canada:
Negotiate a separate agreement with the Williams Treaty First
Nations.
Issue a community licence to these First Nations with terms
that will meet their food and religious needs. (Canada has
already told Ontario it may proceed with this if it wants to.)
Honour the unappealed 1991 "Howard II" case that recognizes
these First Nations' rights to fish for food, social,
ceremonial or barter purposes in waters adjacent to their
reserves.
Renegotiate the Williams Treaty itself to bring it into line
with Sparrow and other, more enlightened views of First
Nations' rights. Canada already has a policy and procedure in
place to do this -- the Treaty Renovation Process -- that is
part of its land claims process.
The MNR's choice, of applying the Game and Fish Act to the Williams
Treaty signatories, is repugnant. These First Nations people will,
forever, be restricted to catch and bag limits totally insufficient
for food or ceremonies. By thus interfering in the harvest of game
and fish for ceremonial purposes, the government is interfering
with the freedom of these First Nations people to practice their
religion.
The freedom to practice the spiritual aspect of life is a
constitutional right guaranteed to all in Canada. Yet, anyone who
is forced to live under the draconian terms of the Williams Treaty
will not have that freedom. If they try to hunt and fish outside of
the narrow limits of the Fish and Game Act, they will be fined or
jailed.
Surely, this is not in keeping with the spirit of the Constitution
in its recognition of the rights of a people who were in this land
first and who lived in harmony with this land for thousands of
years before Ontario was even dreamt of. I urge you, if only for
the sake of the honour of the Crown, to act in the spirit of the
Constitution by negotiating an arrangement with the bands of the
Williams Treaty that we all, Native and non-Native, can live with.
Don't forget to sign your letter and include your address. And as
long as you're pasting stamps, send us a copy too:
Saugeen & Nawash Ojibway Communications, RR 5, Wiarton Ontario, N0H
2T0.
Thanks.
Please copy & distribute this fax freely ... from the Saugeen
Ojibway, 05-27-94
Dibaudjimoh / Saugeen Ojibway News, December 1993
_____________________________________________________________
fax: 519-534-2130
phone: 519-534-5133
eric johnston
or david mclaren