‘We didn’t sign that treaty’: in Canada, the Anishinaabe fight for land they never gave up

When he was growing up, Duncan Michano dreamed of one day retracing the route his Anishinaabe ancestors travelled in birch-bark canoes, from the dunes of Lake Superior’s northern shoreline to the community of Longlac – a journey through more than 200km (125 miles) of wilderness

Years spent on the land in northern Ontario kindled a deep desire to also traverse those forests, exposed bedrock and frothy rapids that elders spoke of.

So, in 2016, he did just that.

Travelling with his granddaughter, he hunted for the route, much of it overgrown and fallow. At one point, he found himself standing between rushing water on his left and a steep hill to his right. There was only one possible path forward.

“I’m standing, thinking: ‘Jesus, my grandfather walked right here.’ He was here,” Michano later recalled.

“Knowing your ancestors followed the same path gives you a spiritual connection. It gives you a sense of ownership.”

Ideas of land, ownership and rights have been the focus of an intense, multigenerational battle between successive Canadian governments and a collection of Anishinaabe nations that have long called the place home.

Last week, Canada’s highest court weighed in on the issue, ruling that the crown had made a “mockery” of a key 1850 agreement by failing to adequately compensate First Nations for the riches extracted from their ancestral territories.

The court victory could pave the way for billions in compensation and highlighted why Indigenous communities across the country are increasingly revisiting agreements signed by their ancestors, arguing that in some cases, the terms of those agreements have been broken.

The community of Biigtigong Nishnaabeg, on the northern shores of Lake Superior, are waging a different battle, however.

The community, also known as the Ojibways of the Pic River First Nation, are considered signatories of the Robinson Superior treaty at the centre of the recent court battle, and as such they would be eligible for an eventual payout. But for decades, the community has been saying their ancestors never signed any agreement with the crown. Instead, they argue that they retain title over the land and the right to determine how the land and resources should be used. If victorious in this claim, the Biigtigong Nishnaabeg community could be entitled to a far greater payout.

Michano, now 78, recalls how when he was young, Canadian police would come every year to hand out cheques to members of the nation: an annuity owed from the Robinson Superior treaty for the use of their lands by successive generations of settlers, industry and government. Each year, the payment was just C$4 (US$2.90) – a figure Michano said “wasn’t worth my time … Why would I go there and collect four bucks?”

That yearly rhythm was upended in the 1970s by a chance discovery. Michano was waiting at an airport, and purchased a book, first published in 1880, about the history of treaties in Canada. Thumbing through the pages, he was startled to see that Biigtigong Nishnaabeg wasn’t not listed among the signatories of the Robinson Superior treaty. He recalls it as his “holy F” moment: “We didn’t sign that treaty.”

Treaties between First Nations and the crown have largely underpinned the government’s claim to territory in much of what is now Canada and are the basis of its settlement and exploitation. In exchange for control of land, nations were promised the right to hunt and fish, the support of the crown, and a lump sum or annuity payment.

When European prospectors began venturing to the northern shores of Lake Superior in the 1800s, Anishinaabe chiefs – close allies of the crown – grew worried that violent conflict was inevitable, so colonial officials rushed to sign a treaty to temper their concerns. The result was the Robinson Superior treaty, a novel agreement that, for the first time, promised signatories a share of the revenues from mining and forestry as the value of the land increased.

“It was in the British imperial crown’s interest in 1850 … to say that [it] had negotiated a treaty with all of the [Lake] Superior Anishinaabe nations,” said Brian Gover, a lawyer who represents Biigtigong Nishnaabeg and six other nations. “Over the years, it became in the interest of the government of Canada, and the government of the province of Ontario, to assert that [the nations] had all ceded their lands, that all of their lands were subject to development, that they were confined to reserves and that resources could be extracted from the area.”

Biigtigong Nishnaabeg say the crown’s attempt to wrap up the negotiations quickly led to major oversights, not least the fact that they didn’t sign the treaty. But if, as they say, they never signed the treaty, they never gave up the rights to the fruits of their lands, and retain what is known as “unextinguished Aboriginal title”. The government, however, insists that they should be considered signatories to the agreement.

“There are large financial implications for the unextinguished Aboriginal title,” said Spencer Bass, a lawyer representing Biigtigong Nishnaabeg. “If nations have unextinguished Aboriginal title over their traditional territories, they’re also presumptively entitled to the revenues coming out of those territories never ceded to the crown. Whether they are signatories to the treaties or not, they are entitled to the fruits of their traditional territories, the value of their traditional territories that have been exploited, with the permission of the crown, for the last 170 years.”

That claim, say experts, could be immense.

The battles over payment from the Robinson Superior treaty and the Biigtigong Nishnaabeg land claims are tightly connected. Until the Biigtigong Nishnaabeg claims are settled, none of the seven nations will receive any compensation from the Robinson Superior treaty payout, which experts believe will be worth billions.

The fight – and the fact that nobody appeared to notice that one of the supposed signatories had not agreed to the deal – also reflects the reality that for generations, the crown treated First Nations as an afterthought.

That legacy of neglect was visible on a morning when Michano peered through stands of white pine and golden tamarack at ragged stumps of concrete.

“There was a ball field over there,” he said, pointing to a thick clump of trees. “You’d never believe it now, but it was right over there.”

The site, reclaimed by the forest, is a stark reminder of the gaps of opportunity and wealth that separate Indigenous communities from other towns and cities across the country.

When Michano was growing up in the 1950s, there was no running water and no electricity in Biigtigong Nishnaabeg. To wash clothes in the winter, he would hike down to the lake, break through the ice and lug more than a dozen pails of water back home.

But a few miles away, on lands that had once been the traditional territory of Biigtigong Nishnaabeg, was the bustling community of Heron Bay South, home to the Ontario Paper Company. Heron Bay South had a curling rink, two churches, a school, a commissary, a power generator and a sewage treatment facility. It also had nearly 20 houses, a four-unit apartment building, offices, a machine shop and a warehouse.

“They had everything,” said Michano. “And we had none of that.”

In the 1970s, the Ontario Paper Company offered to transfer the Heron Bay South site to the federal government, for use by Biigtigong Nishnaabeg. The community would pay rent to the Ontario Paper Company in return for access to electricity, running water and a vast array of resources. The company also offered to sell the site to the federal government in exchange for a lucrative tax write-off.

But the federal government, which controls the finances of First Nations reserves, declined both offers. So Heron Bay South, with its generators, working plumbing, schoolhouses and shops, was demolished.

“It was a functioning community with all the facilities and there’s a community over there with the need for those facilities. Why not use them?” said Michano. “But I’m not surprised that the government would choose this option.”

A decade after the community was demolished, then chief Roy Michano consulted with others in the community and the Union of Ontario Indians over the possibility the treaty had never been signed. He then launched a land claim in 1979, arguing that nearly 8,000 square miles of territory had never been sold or signed away to the crown. At that point, it had been less than three decades since Indigenous people had been permitted to hire lawyers: until 1951, the Indian Act made it illegal for “status Indians” to retain legal counsel or contest land claims.

The federal government rejected the claim, but Biigtigong Nishnaabeg remains in negotiations with the province of Ontario.

Even today, the province of Ontario has resisted paying compensation. The province’s lawyers admit there have been “150 years of failure” in honouring the agreement but argue that courts shouldn’t be the venue to order financial damages.

Still, Duncan Michano says nations like his are growing emboldened to push back against slow-moving bureaucracy. They might have to wait decades in court, but that doesn’t mean they be can’t strategic now.

They’re also increasingly wary of government funds and grants, he says. “There’s always strings attached,” says Michano. “But when it’s our own money, when it’s from our own sources, we can do what we want.”

Two years ago, flush with cash from a deal they signed with a mining community, Biigtigong Nishnaabeg purchased the demolished town site. The move was partly defensive, blocking other prospective owners from developing the land. But it was also a nod to the grander ambitions of the nation: to gradually reclaim their territory.