The Atikameksheng Anishnawbek announced Dec. 15 their intention to head back to court with both the Canadian and Ontario governments, after the order to remove the administrative dismissal on the claim allowed the First Nation to proceed with a boundary land claim.
The claim would see the reserve, (also known as Whitefish Lake IR 6 area) grow from its current 200 square kilometres to approximately 2,883 square kilometers.
The claim stems from the Robinson Huron Treaty of 1850, wherein the Anishinabek Nation signatories who entered into the agreement with the crown would see a benefit from the new settlers arriving on their traditional lands.
The Treaty itself has been in the courts recently as the Robinson Huron Treaty litigation team, led by a team that includes Chief Dean Sayers and Gimaa Duke Peltier of Batchawana First Nation and Wiikwemkoong Unceded Territory, respectively, continues to face appeals from the province. This, despite a 2018 judgement in favour of the team, and the Canadian government withdrawing from the appeal.
In 1850, when the treaty was signed by Chief Shawanekezhik, the lands of the Atikameksheng Anishnawbek lay between Whitefish River (now Vermillion River) in the west, Wahnapitae River in the east, seven miles inland from the north shore of Lake Huron, up to Lake Wahnapitae, and this is the boundary now claimed. A survey of the land was to be completed in 1851, but for some reason, that survey didn’t happen until 34 years later.
The survey was completed over the course of five years, between 1884 and 1889, but to the surprise of Atikameksheng, the land was not surveyed according to the definition set out in the treaty.
The result was boundaries that were substantially smaller.
Atikmeksheng Anishnawbek Gimaa Craig Nootchtai told Sudbury.com there was never an agreement to have the reserve lands reduced, but in 1889, a provincial judge ruled that the reduced boundaries were adequate.
Nootchtai said this ruling was illegal. “The province did not have jurisdiction to make that ruling, especially when it contravened the Treaty descriptions,” he said.
The nations’ work on the claim has gone on for some time. First in the 1980s, when research began using maps, oral history and the knowledge of elders.
At the same time, Chief Larry Naponse and elder Arthur Petahtegoose began to advocate for the claim in the community.
Then in 2008, a first submission. The Atikameksheng claim was asking the government for Crown land to replace the land now occupied, damages in the amount of $550 billion for loss of use, $100 million for breach of Treaty Rights, constitutional rights and fiduciary obligations and $10 million in punitive damages.
At the time, lawyer Aaron Detlor called the requested amount conservative considering the mining industry's estimated $1 trillion impact in the Sudbury basin and from land that once belonged to Whitefish Lake.
However, the claim was ultimately unsuccessful because legal counsel failed to provide documents requested by the court. The claim was administratively dismissed on January 14, 2013.
From that point on, said Nootchtai, Atikameksheng council worked to revive the claim, culminating in the hiring of Maurice Law, the only Indigenous-owned national law firm in Canada.
Work began on an amended map and statement of claim, as well as requests to include: a declaration of title to all remaining unencumbered lands, damages and equitable compensation for all alienated land, damages and equitable compensation for all revenues generated on Atikameksheng lands, and a declaration from the courts that Canada and Ontario were negligent in upholding the provisions of the Robinson Huron Treaty of 1850. Atikameksheng’s counsel was able to revive the claim on November 25.
“This means a lot to our community because we are one step closer to reclaiming lands that are rightfully ours, and to receiving fair compensation for lands that we will most likely never get back,” he said.
Nootchtai also said the success in the Robinson Huron annuities case proves that there is weight to their claims.
“The decisions by Justice Hennessy (the judge in the annuities case) affirms that both Ontario and Canada have to abide by the Treaty provisions, and both have that fiduciary responsibility to do so,” said Nootchtai. “In our case, we are confident that the Treaty clearly states our boundaries and that Ontario and Canada do not have a legal position to dispute that.”
The next steps in the proceedings will be the application for a Case Management Judge to oversee the court activities, followed by a submission of evidence by all parties to facilitate future deliberations. Once deliberations are finished, the Case Management Judge will decide on the merits of the claim. At any time during the process the parties can sit down to negotiate a settlement if they agree to.
“We wish to sit with Ontario and Canada as Treaty partners to settle the claim if they are willing to do the same,” said Nootchtai. “We feel there is more benefit to negotiate rather than to resolve the claim through the courts.”
Nootchtai said the benefits of the claim will not only serve justice to the Atikameksheng Anishnawbek, but will provide long-term wealth to sustain the nation.
“It will provide us with resources to develop infrastructure needed for our own schools, health centres, and housing; It will help pay for social services including education, employment and training, child welfare services, policing, and land-based treatment programs,” said Nootchtai. He said it will also allow the nation to forge stronger relationships and participate more in decisions surrounding the Sudbury basin. “But more importantly it will help our families thrive and be prosperous as our Treaty partners, fulfilling the true spirit of the treaty, which is to have all parties benefit from the rich resources.”