BATCHEWANA FIRST NATION
NOTICE OF ASSERTIONS
By this Notice of Assertions the Batchewana First Nation (“BFN”), by its Chief and Council, gives formal notice to other governments, to resource users and developers, to its neighbours and to the general public of the rights and interests it asserts and will continue to assert in its original, traditional and historic territory.
BFN asserts and relies upon the Covenant Chain of mutual respect and agreements with the Crown, including The Two Row Wampum Belt which was an early treaty that First Nations and colonial settlers would each travel in their own vessels, side by side with each under their own laws, customs and ways.
Like the Constitution of Canada, the Covenant Chain is “a living tree” that continues to inform our ongoing relationship with other governments. In fact, the Covenant Chain reaches all citizens who, if they accept the benefit of our agreements with the Crown, must also accept the obligations of the Crown to BFN.
Like other Ojibway in the upper Great Lakes, the Batchewana First Nation has exercised its responsibility to use, possess and protect the waters, lands and resources from time immemorial. The Creator placed our people at Bawahting (the rapids at what is now called Sault Ste. Marie) with laws and responsibilities to live in harmony with all Creation. Our elders have told us when the Creator told the crane to chose a homeland, the crane flew around and settled at Bawahting where there was an abundance of fish. The elders say that our original territory extended from the area around Bawahting and up the coast of Lake Superior as far as what is now Pukaskwa National Park, including islands in the lake, and to the north and northeast beyond the height of land. In 1849 this territory was confirmed when two government agents, Vidal and Anderson, were sent to enquire into the traditional territories of the various First Nations. BFN continues to hold and to assert rights and interests in its original territory just as it did prior to any treaty with the Crown.
In 1850, Crown Commissioner Robinson negotiated two treaties at Sault Ste. Marie, now known as the Robinson Huron and Robinson Superior Treaties. The original territory of BFN extends into both treaty areas and BFN has rights in both treaty areas. Our rights beyond the height of land were not addressed at that time since that area was then claimed by the Hudson’s Bay Company and was not part of the Province of Canada.
The Batchewana First Nation became a signatory to the Robinson Huron Treaty under its Chief Nebenegoching. In return for the opening of extensive lands to the Province, the treaty promised BFN continued access to resources, annuity payments and continued aboriginal title to two reserves: Whitefish Island in the rapids at the Soo and the Batchewana Bay Reserve from a point west of Gros Cap to the north of Batchewana Bay, including Batchewana Island, and 10 miles (leagues) inland from the shoreline throughout. The actual survey of the Batchewana reserve did not run the proper distance back from the shoreline, leaving an outstanding treaty land entitlement that has never been fulfilled. The issue of whether the northern boundary of that reserve should have been surveyed further north than it was has never been addressed.
The survey of the Batchewana Bay Reserve was hardly complete when government agents began to acquire the reserve lands from BFN. Finally, after years of pressure, a complex arrangement was put in place by R.T. Pennefather, Superintendent General of Indian Affairs, involving BFN and two other First Nations. This would leave BFN with only the small reserve at Whitefish Island, the Batchewana Reserve to be sold for the benefit of BFN and lots of 40 acres to be granted to BFN members at Garden River. Those grants were never made because Pennefather did not negotiate with Garden River to provide for them. And while the original reserve lands were mostly sold, the issue of diminished area was never resolved and, as is common with sales of Anishinabe lands, there are problems with the prices and accounting that need to be resolved. BFN does not assert 1859 rights against Garden River, but does seek redress from Canada and Ontario.
Canada’s failure to have due regard for the interests of BFN in 1859, or even to the legality of its promises to BFN, left our membership without any land base except for islands comprising the small fishing station in the rapids. Their treaty reserve was being sold, they had no land tenure at Garden River and no other reserve lands to call their own. Over time, lands were purchased at Goulais Bay and at the Rankin location, using the First Nation’s own funds. Governments did not recognize or protect BFN settlements at Batchewana Bay, at Agawa River or later at Gros Cap. In 1992, Whitefish Island itself was restored through negotiation and settlement with Canada after it was lost to BFN for nearly a century.
BFN asserts its right to an increased inventory of reserve land based on the outstanding treaty entitlement from 1849 and 1850 and the failed promises of land tenure made in 1859.
BFN maintains and asserts its rights to resources, resource-sharing and resource management within its traditional territory. These resources are fish, including the commercial fishery and management of the BFN fishery, wildlife and biosphere resource management, mines and minerals, waters and watersheds, wind and the environment.
In addition to substantive rights to manage and conserve, BFN asserts its right to be engaged about development, exploitation or proposals that will impact these resources, the environment or the rights and interests of BFN. The object of these consultations would be the “free, prior and informed consent” of BFN as provided for in the United Nations Declaration on the Rights of Indigenous Peoples, which is consistent with the custom of BFN..
BFN prides itself as a good neighbour to other First Nations and to other communities. While unyielding in its assertion of its rights to resources and to shared resources, BFN and its members do not seek out confrontation and do seek to avoid it whenever possible. BFN is always prepared to proceed on the basis of mutual respect to seek mutual understanding and to consider the free, prior and informed consent referred to above.
This notice of assertions will assist interested parties, and those who should be interested, in understanding BFN’s position historically and in the modern political, social, economic and legal fabric. We welcome requests for further information. We also look forward to building on the many positive relationships we have enjoyed over the years.
Many of the assertions noted here have not been submitted to any court or other negotiating process to date, although other governments are well aware of them. BFN anticipates working with other governments on processes of reconciliation and reserves all rights and remedies for vindication of BFN’s assertions. Everyone now has formal notice of these assertions and of the opportunity to become better informed about them. All concerned are put on notice to work with BFN in future where activities, projects, policies and developments may have an impact on BFN rights and interests.
Outstanding 1850 Treaty land entitlement and other Treaty issues
Rights to resources, harvesting and development of resources, resource management and conservation (pre- and post- Treaty) Treaty annuities
Invalidity and failure of 1859 Pennefather arrangment (protection of interests, security of land tenure, shortfall of compensation due to outstanding treaty land entitlement) Failure to protect and preserve BFN reserve and community lands for future generations Issues of compensation, land sales and accounting after 1859 Unsold surrendered lands Continuing BFN rights and interests in our Original Territory Engagement, Accommodation and Consent
This short list is not exhaustive and not overly detailed. It gives shape to BFN’s assertions and to this notice. After publication of this notice, all concerned have, at a minimum, a duty to enquire and, in appropriate circumstances, there will be a duty to engage with BFN and to accommodate BFN rights and interests or to secure BFN consent.
BFN will take such steps as it deems necessary to enforce those duties.
Chief and Council, and the Batchewana First Nation, look forward to your cooperation.
Batchewana First Nation ~ MNR Charges
January 22, 2009 an Information Session was held at the Rankin Arena on charges laid October 2, 2008 by the Ministry of Natural Resources. The Batchewana First Nation is facing two separate charges:
Against Chief Dean Sayers, Phillip Swanson-Palmer, Clinton Robinson-Fisher, Gilles Robinson-Vankoughnet ~ unlawfully harvest forest resources in a crown forest without the authority of a forest resource licence ~ Townships of Palmer, Fisher Vankoughnet
2. GARGANTUA – LAKE SUPERIOR PROVINCIAL PARK
Against Batchewana First Nations of Ojibways and Chief Dean Sayers ~ unlawfully remove/damage crown property To Wit: gate – appendix A for further charges: (11 charges) placement of arch culvert, four plastic pipes, road, clearing of land, filling of shore land, remove trees, unlawfully obstructing an officer.
Our Day in Court is welcomed by the Batchewana First Nation. At the January 23, 2009, Elder’s Workshop, our Elders reminded us of our close relationship to our land and to stand up for our rights, for the present and future generations. The 1850 Robinson Huron Treaty did not limit the harvesting rights of our people and the pre-Treaty 1849 Commission Hearing reported that our original lands from the West boundary of Puckuswawsene – Otter Head, all islands, back to the height of the land to east boundary of Squash Point.
The Batchewana First Nation established a Logging and Gargantua Legal Team to coordinate activities and report to Council. The Team consists of legal counsel Jennifer Tremblay-Hall, Stacey Tijerina, William Henderson, Legal Historian James Morrison, and BFN staff from the Natural Resources Department; Danny Sayers Jr. coordinator, Shauna Weston (intern) and from Research – 1859 Pennefather Treaty Carol Nadjiwon and Loss of Fishing Erin Robinson.
Anishinabek Crossing St. Mary's River ~ September 2008
Canada ~ USA Border Crossing by Batchewana First Nation, Garden River First Nation, Sault Ste. Marie Tribe of Chippewa Indians and the Bay Mills Indian Community
Batchewana First Nation Chief Dean Sayers, Garden River First Nation Chief Lyle Sayers, Sault Tribe of Chippewa Indians Chairman Joe McCoy and Bay Mills Indian Community Representative Bruce Teeple sign the Treaty of the Anishinaabeg Summit: Living Treaties, August 15, 2008.
Treaty-making is founded on our sovereignty, our relationship and laws given to us by the Creator. Indigenous nations also have a nation-to-nation relationship with other nations.
Declaration of First Nations (1980)
We the original peoples of this land know the Creator put us here.
The Creator gave us laws that govern all our relationships to live in harmony with nature and mankind.
The laws of the Creator defined our rights and responsibilities.
The Creator gave us our spiritual beliefs, our languages, our culture, and a place on Mother Earth who provided us with all our needs.
We have maintained our freedom, our languages and our traditions since time immemorial.
We continue to exercise the rights and fulfill the responsibilities and obligations given to us by the Creator for the land upon which we are placed.
The Creator has given us the right to govern ourselves and the right to self-determination.
The rights and responsibilities given us by the Creator cannot be altered or taken away by any other nation.
-Adopted by the Joint Council of Chiefs and Elders, December 1980.
SOVEREIGNTY IS THE SUPREME POWER FROM WHICH ALL SPECIFIC POLITICAL POWERS ARE DERIVED.