Treaty Research Report, The Williams Treaties (1923)

Historical Background

Three separate and large parcels of land in southern and central Ontario were acquired by the Government of Canada in 1923. Known collectively as the Williams Treaties, the agreements which provided for these acquisitions concerned the following areas of land:

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.

Several points concerning these agreements are noteworthy.

1. The land area is enormous. The first two parcels together contained about 2,500 square miles and the third involved approximately 17,600 square miles, a total of 12,944,400 acres.
2. Two quite distinct groups of Indian bands were involved: The Mississauga Indians of Rice Lake, Mud Lake, Scugog Lake and Alderville; and the Chippewa Indians of Christian Island, Georgina Island and Rama.
3. At the time of the treaties, much of the land in question was already being used by government, either for settlement or for the exploitation of natural resources, such as lumbering and mineral extraction.
4. The large northern sector included substantial portions of land that had been the object of previous land cession treaties.
5. The negotiations surrounding the treaties involved both the Government of Canada which had legislative responsibility for "Indians and lands reserved for Indians,"^{Footnote 1} and the Government of Ontario which had control over "all Lands, Mines, Minerals, and Royalties."^{Footnote 2}

These several considerations, either singly or combined make the Williams agreements unique in the field of land cessions in Ontario. They resulted because of several incidents, errors and crises that occurred between 1783 and 1923.

The need for land cession agreements was asserted in 1763, when the British Crown issued the Royal Proclamation of 1763. That important document has been the object of many studies^{Footnote 3} and therefore need not be discussed at length here. It should be noted, however, that the British Crown decreed that the interior of North America – between the Appalachian highland and the Mississippi River – should be an Indian Territory, and that white penetration of it should stop, at least temporarily. In terms of Canadian territory as determined by the results of the American Revolution, this meant the land lying north of the international boundary and westward of a line drawn from the south shore of Lake Nipissing to the point at which the 45 parallel of latitude crossed the St. Lawrence River.^{Footnote 4} It should be noted further that the Royal Proclamation also provided that lands within that Indian Territory could be acquired by the Crown if the Indian occupants agreed to relinquish it.^{Footnote 5} That was to be done at a formal council, summoned for the purpose of taking such a land surrender, attended by representatives of the Crown and of the Indian bands who occupied the tract in question.

The first of these agreements involving Canadian territory took place in 1764 and 1781 and involved the land on the left bank of the Niagara River. Further cessions – popularly known as "treaties" – allowed the Crown in Canada to acquire lands on the north shore of the upper St. Lawrence River and Lake Ontario between Montreal and the Trent River, and land lying between the head of Lake Ontario and Lake Erie, running from the Niagara River to the Thames River. These agreements were made in 1783 and 1784 for the purpose of providing settlement areas for the Loyalists who sought refuge in Canada after the American Revolution. The circumstances surrounding these agreements have been examined elsewhere.^{Footnote 6}

Two considerations inclined British officials in Canada to seek extensions of these agreements. First, there was the desire to provide for an unbroken line of settlement along the shore of Lake Ontario between the Trent River and the head of the lake; second, it was also considered advisable to have an alternate route to the interior, other than the Ottawa River or the Lake Erie – Detroit River – St. Clair River. Such an alternative was possible by travelling the Humber River – Holland River – Lake Simcoe route (known as the Toronto Carrying Place) to the east end of Georgian Bay. Such a route would have both military and commercial uses.

The northern and western most portion of the Toronto – Georgian Bay route was apparently secured by a treaty arranged in 1785 by John Collins^{Footnote 7}, the Deputy-Surveyor General who arranged for passage between the Narrows at Lake Couchiching and Matchedash Bay via the Severn River. The remainder of that route, from present Toronto to Lake Simcoe and the lands of Lake Ontario's north shore became the object of negotiations in 1787-88, when Governor Dorchester directed Sir John Johnson, the Superintendent General of Indian Affairs:

It was this direction that brought Sir John to meet an arranged gathering of the Mississaugas at the head of the Bay of Quinte in September, 1887. About 626 persons were present; another 391^{Footnote 9} gathered at Toronto at the same time. The latter gathering was represented at Quinte by selected chiefs, and the two groups between them were recipients of £2,000 worth of goods dispensed by Johnson.^{Footnote 10} An account of that meeting by the Indian trader, John Long, noted that Sir John showed the Indians a map by which he desired to have the land "from Toronto to Lake Huron."^{Footnote 11} Another reconstruction of the affair, by Percy Robinson, contends that Johnson took a surrender of the right of transport from Toronto to Matchedash Bay as well as blocks of land (10 miles square) at each end.^{Footnote 12} Robinson's principal source explaining the events of the decade before is a letter written by Johnson in 1798.^{Footnote 13}

In that letter Sir John did not mention land other than the Toronto-Matchedash area, but it would seem that he did speak to the assembled Indians about the land on the north shore of Lake Ontario between Quinte and Toronto. Long's account says he did; his instructions said he was supposed to; and according to the invoice of the goods given out at the time, the Mississaugas who had gathered at Quinte on September 23, 1784 "Made a formal Cession of Lands on the North side of Lake Ontario to the Crown."^{Footnote 14} Also, this land cession was described more specifically by the Land Board for Nassau in 1790, when it issued instructions to survey the "Land lately purchased by Sir John Johnson from the Missisaga [sic] Nation on the North Side of Lake Ontario in the District of Nassau from the head of the Bay of Quinte to Toronto.^{Footnote 15}

Sir John's distribution of presents at this council was later interpreted as payment for lands. These gifts of ammunition, arms and tobacco, however, were rather designated as a present to the Mississaugas as a reward for their fidelity to Britain and for "services during the late American War."^{Footnote 16} Specific payment for the land was to come later. It would seem, however, that a deal was provisionally arranged at Quinte.

Notwithstanding Sir John's denial of having put anything on paper at the time, a deed of sorts has been found and identified as having been drawn up at the Quinte Carrying Place in 1787. It was witnessed by three chiefs – Wabikane, Neace, and Pakquan – and by John Collins, Louis Kotte and Mathaniel Lines.^{Footnote 17} It does not contain a description of the lands to be sold, but simply leaves blank spaces which evidently were to be filled in later after proper surveys could determine an accurate description. According to the interpreter, Nathaniel Lines,^{Footnote 18} who recounted the event some eight years later, the land in question was the north shore of Lake Ontario. Others suggest^{Footnote 19} that the land descriptions to have been inserted at a later date were to include the region of the Toronto-Matchedash purchases.

It is likely that Sir John's hurried visit to Quinte in 1787 did not allow sufficient time to ascertain the precise bounds, particularly in terms of depth, that the government wanted or that the Mississaugas were prepared to offer. In any event those details could be delayed until the following year when payment could be made. The requisitions for supplies to make that payment clearly indicate that two separate purchases were intended, these being the north shore of Lake Ontario and the Toronto-Matchedash lands.^{Footnote 20} That little trouble was anticipated was reflected in the concurrent despatching of surveyor Alexander Aitken, to conduct a survey of the Toronto site.

Aitken and the provisions arrived at Toronto on the Seneca on August 1, 1788. He was joined a few days later by Lord Dorchester, Sir John Johnson and Colonel John Butler.^{Footnote 21} Dorchester and Johnson remained at Toronto only until the goods had been distributed to the Mississaugas who had gathered for that purpose. However, not all the expected bands arrived on time. Thus, Butler remained behind to meet those who were expected from Lake Simcoe and Pawastink (Port Hope), and also to reach some agreement regarding the depth of the cession on the Lake Ontario shoreline. Again from fragmentary evidence, we can observe that Butler was successful in coming to an agreement about the depth of the tract. He later reported from Niagara that while at Toronto, after the Lake Simcoe and Port Hope Indians arrived, he called all the chiefs into a council and proposed that they surrender the land between Toronto and the Bay of Quinte, "as far back as Lake La Clay (Simcoe) and the Rice Lake."^{Footnote 22} Having secured their agreement, "after 2 or 3 meetings," he then proposed that the depth be a straight line beginning 15 or 16 miles back from Toronto. Running the depth in a straight line cost an extra twenty-five guineas to two chiefs, Wabikane and Porqua.^{Footnote 23} The actual depth was in fact determined by the surveys completed in 1791, when the surveyor, Augustus Jones, reported having done surveys to eleven townships, beginning with the eastern boundary of the District of Nassau and extending two miles west of Toronto.^{Footnote 24}

This issue of the north shore and the Toronto-Matchedash section appeared to have been settled at this point. The Indians, at least according to Butler's reports and Johnson's understanding, were satisfied; and the government was content also with having secured a solid line of settlement between Cataraqui and Toronto, as well as the communications link between Toronto and Matchedash Bay. But there were some clouds on the horizon. First, Aitken had been prevented by Wabikane from completing a full survey of the Toronto site. It was only through the intervention of Nathaniel Lines that Aitken was permitted to begin at the Etobicoke River rather than the Humber River. And, being left alone after the departure of Butler and Lines, he feared to run his survey more than 2 3/4 miles inland, for Chief Wabikane cautioned him against crossing the stream located at that point.^{Footnote 25} Second, one group of Indians, apparently those from Matchedash, claimed that they had not received payment for their lands. According to Butler, this resulted because Sir John had given the goods to the wrong people.^{Footnote 26} More serious than any of these, however, was the absence of a territorial description in the deed of surrender prepared at Quinte in 1787. As a result, the problem did not come so much from anger on the part of the Indians, but rather from anxieties expressed by white administrators and by settlers who were concerned about the security of their tenure in lands covered by the 1787-88 agreements.

This concern was increased greatly in 1794. Pressured by Lieutenant-Governor Simcoe regarding the imprecision surrounding the land cessions, Lord Dorchester declared the blank deed taken in 1787 to be invalid.

The anguish created by this declaration lasted ten years. Even then it was not cleared up either completely, or neatly, but circumstances were such that the Indians did not register complaints about the details of the arrangements.

The public stance of the government continued to the assertion that the lands had been duly purchased. In 1795, while negotiating for the lands around Penetanguishene Harbour, Lieutenant-Governor Simcoe asked the Chippewas of the Lake Simcoe region about the previous purchases in the area. He reported that they were "desposed to confirm such purchases as were formerly made of them" and that he expected "they will consider the goods to which by this treaty (1795) they are to be entitled as recompense sufficient for what has been supposed to have been purchased on former occasions." ^{Footnote 28}

While the assurances provided by Simcoe eased some of the pressure regarding the Carrying Place sector of the 1787-88 agreements, the north shore of Lake Ontario continued to be a source of worry, especially because Dorchester's invalidation of the blank deed had removed the one official document that concerned that area. This was a cause of insecurity among persons who had received subsequent land grants^{Footnote 29} in the area and a source of consternation among government officials who feared that the Indians there might make demands^{Footnote 30} which either could not be met or would be outrageously expensive.

Sir John Johnson, the official in charge at the time of the surrenders, was asked to explain matters. The situation was complicated further, in this regard, because Sir John was absent from Canada during most of Simcoe's term. His self-imposed exile had been caused largely because he had not received the appointment as Lieutenant Governor, and apparently he refused to remain in Canada while his rival was in control. He returned when Simcoe left; and upon being apprized of the land issue, he expressed surprise and indignation that anyone perceived there to be a problem. In a letter dated 21 March 1798, he said that the transaction had been made, that the Indians had been satisfied and that the Crown had definite possession of the land in question. Should there by any doubts, he said Captain Claus or Lieutenant Givins, of the Indian Department, should be charged with the task of acquainting the chiefs connected to that land that a formal, written agreement was required.^{Footnote 31} Apparently he felt that there would be little difficulty involved in getting the Indians to sign an agreement, even after a decade had passed.

Johnson's solution was not followed. It was felt that to bring the matter into the open would cause more problems than it would solve. This desire to maintain a quiet approach prompted an ingenious suggestion from the Administrator of the Province of Upper Canada, Peter Russell.

In a letter to Robert Prescott in January of 1798 he suggested a further purchase of two pieces of land adjacent to the land in question. In the deed that would emanate from that arrangement, there could be included a full description not only of the new purchase but also of the lands involved in the 1787-88 arrangements. Such a recapitulation of past purchases, he said, "if properly drawn up may be perhaps as binding a record"^{Footnote 32} as if an original deed had been taken. Prescott refused to sanction this recapitulation scheme. It would mislead the Indians, he said, and could seriously injure "the King's interest, as soon as they should discover, that they had not been openly dealt with. Management of that kind should never be attempted with Indians" he said, and added "the present juncture besides, is, of all others, the most inauspicious for such purposes."^{Footnote 33} He did, however, approve of Russell's suggestions that new purchases be made. But he made it clear that in making these purchases he was to deal openly, and to secure proper deeds for both the old cessions and the new ones, "without any reference whatever being introduced therein of the former purchases of 84, 87 and 88…"^{Footnote 34}

Although forbidden to implement his recapitulation scheme, Peter Russell did attempt to secure some measure of reassurance for the government that excessive demands would not be forthcoming from the Indians. When the Chippewas from Lake Simcoe visited York in May of 1798, in order to receive the last of the goods due them for the Penetanguishene purchase, Russell decided to try one more ploy to solve the issue before resorting to Prescott's plan of renegotiation. He invited these Indians on May 22 to a special gathering at his house where he asked them what they understood to be the bounds of the 1787-88 agreement. His exact words are worth quoting, for they help to picture this rather anxious administrator posing the question with what must have been considerable false nonchalance, and an attempt at minor deception.

Russell's performance did not deceive the Indians, however, and Chief Yellowhead must have been smiling, at least inwardly, when he replied:

Russell wrote to Prescott the next day.^{Footnote 37} He and his Executive Council felt that since the Indians were of the same opinion as Sir John Johnson, and appeared satisfied that they had indeed surrendered all of the land that Butler claimed to have purchased in 1788,^{Footnote 38} there was no need either to obtain new deeds or purchase even a small new tract. And that was the way matters left, rather gratefully one suspects, by the government officials in 1798. The issue re-appeared about seven years later.

Concern had again been expressed about the legality of the tenure by which the Crown held the land which included the town of York. Since it was the seat of government, Peter Hunter, the Administrator of the province, had directed that a new deed be acquired from the Mississaugas. Essentially this was the same plan as that suggested by Sir John Johnson in 1798; but circumstances were far more propitious for government in 1805. The Indian agent, William Claus had very little difficulty when he met the Mississaugas in formal council at the Credit River on July 31, 1805.^{Footnote 39} At that time, the Indians readily agreed that Sir John Johnson had purchased the land in 1787 and that the only condition had been that the fishery in the mouth of the Etobicoke river be reserved for their use. They also expressed the hope that, although they had already been paid, some gifts would be given to them. The formal deed which was drawn up and signed the next day described the area in question as consisting of 250,000^{Footnote 40} acres and containing the town of York. It also called for the payment of £1,000 in goods. The agreement also stated that the fishery in the Etobicoke river was to be reserved for the sole use of the Mississaugas. This was clearly a greater portion of land than the 10 miles square that Sir John Johnson remembered having taken when he had recalled the event in 1798. The deed, it is worthy of note, did not make mention of the land at Matchedash, nor of a strip 3 miles wide on the water route to Lake Simcoe. It would seem that the assurances given by the Lake Simcoe Chippewas to Simcoe in 1795 and to Russell in 1798 were taken to be sufficient.

Between 1805 and 1916, the matter lay more or less dormant. Several points, however, should be made regarding that land.

1. The parcel of land known as the Toronto Purchase (1805-6)^{Footnote 41} covered the southwest portion of the land that had supposedly been acquired by the Johnson-Butler arrangements in 1787-88.
2. The area along the shore of Lake Ontario between the Trent River and Scarborough was developed fully over the next century, as was the region north of the Toronto Purchase.
3. The area of the 1787-88 arrangements (often referred to as the "Gunshot Treaty")^{Footnote 42} was bordered by several subsequent treaties, in 1815, 1818 and 1819.
4. The socio-economic status of the bands that had occupied this region declined greatly, as did their population.
5. Despite this general decline, and despite their being confined to reserve lands scattered across the territory, the small bands at Mud Lake, Alnwick, Rice Lake and Lake Scugog did not register complaints that their entitlement to lands in the central part of the province had not been fully extinguished.

Meanwhile, the region along the northern shores of Lakes Huron and Superior had become the object of attention for persons wishing to exploit the mineral resources there. The ultimate result of this was the conclusion of the Robinson Treaties in 1850. One of these – the Robinson-Huron Treaty – purported to involve the shoreline of the lakes, including the off-shore islands, from Matchedash Bay to Batchawana Bay. The surrendered tract also was to run inland to the height of land. At the time he took this surrender, the Special Commissioner, William Benjamin Robinson, was approached by some Indians of the Lake Simcoe region who claimed that they had rights to part of the land in question, and who had not been included in the treaty or in the treaty negotiation. Robinson made little of this incident,^{Footnote 43} and the Chippewas did not press their claims sufficiently to draw much attention. Thus nothing was done at the time regarding their claims for over a half century.

In that time the control of Indian Affairs passed from the Imperial Government to the Province of Canada in 1862 and in 1867 this responsibility was vested with the Federal Government of Canada. At the same time the territory beyond the areas of the Rideau Purchase and the Rice Lake Purchase were opened to settlement and lumbering. No attempt was made to secure land cessions between the back line of those treaty areas and the Ottawa River. One reason for this delinquence was, no doubt, the dispute in the 1870's and 1880's between the Government of Canada and the Province of Ontario regarding several jurisdictions. This dispute was well publicized regarding Hodge Vs. The Queen, The Rivers and Streams Act and the Ontario boundary extensions. Since the matter of land conflicted with that of Indian Affairs, the two levels of government finally agreed in 1894^{Footnote 44} that any arrangement made with the Indians after that date would have to involve the provincial government. That happened in 1905-1906 in the case of Treaty No. 9 (The James Bay Treaty),^{Footnote 45} but the region of the Ottawa Valley was not dealt with until 1916 and the years following. This inactivity probably resulted also because the issue never arose with sufficient seriousness to incline anyone in authority to take action.

The Making Of The Williams Treaties

Why action was finally taken is a question that does not seem to have a clear answer, although one scholar has suggested "that the public anger over the unjust situation in British Columbia," where lands had been seized without treaties, "provided an impetus towards settling other outstanding claims."^{Footnote 46}

One of the claims was that of the Lake Simcoe Chippewas regarding the Robinson-Huron Treaty, and with a view towards disposing of that issue, the Federal Minister of Justice appointed R.V. Sinclair to investigate the matter. Sinclair's full report is re-produced as Appendix A; the following excerpt is included at this point to illustrate that his report supported the view that the Chippewas' claim had a substantial basis.

No further action was taken in the matter until the First World War was over. The farmer-Labour Coalition of E.C. Drury replaced the conservative government of William H. Hearst in Ontario and, at the Federal level, the Liberal Government of W.L.M. King replaced the Conservative government of Arthur Meighen.^{Footnote 48}

In 1921 the Federal Government approached the province regarding this longstanding Indian claim. It required a year and a half for the two levels of government to work out the details of an agreement by which they would approach the matter. The agreement, signed on April 23, 1923, called for the appointment of a three man commission which was to investigate the claims. The chairman was to be chosen by the Federal Government and the two other members by the Province. Following the ratification of the agreement by federal and provincial Orders-in-Council in June, the commission, chaired by a Toronto lawyer, A.S. Williams, began its work in September, 1923. Its report^{Footnote 49} revealed that the Indians' claims were not only valid, but were also far more extensive than those that had been suggested by the 1916 Sinclair investigation.

The two governments involved, having been suddenly confronted with a report that not only validated the claims to the central portion of the province but also verified ancient claims to lands on the north shore of Lake Ontario and to a sizeable tract below Lake Simcoe, moved very quickly to extinguish the Indian title to those regions. There were two problems: first, the claiming bands might discover the full value of the lands they were being asked to give up; second, despite the fact that the land in Ontario and York Counties was valued by the Commission at $30,000,000.00 and those of the old 1787-88 Johnson purchase were much more valuable than that, the Province of Ontario was prepared to pay only $500,000.

Faced with this circumstance, the Federal Government decided to offer the Indians the provincial limit and hope that further negotiations would not be necessary. As things developed, the strategy worked and the several bands involved signed the two agreements which are known collectively as the Williams Treaties. These form Appendix B and Appendix C.

The Williams Treaties (1923) provided for the surrender of the last substantial portion of the territory in the southern regions of Ontario that had not been given up to government. Indeed, only the adhesion to Treaty No. 9, made in 1829, remained to be completed anywhere in the province. Moreover, it settled a land issue that had been smouldering, at least in the Indian mind, since 1787-88. Williams and his fellow commissioners should have been highly commended for the task that they performed, since they certainly secured a bargain for the Crown. And since they were working for the Crown it can be said that they served their employer very well indeed. The Indians, however, should be far less impressed for they sold^{Footnote 50} – one might even say that they were manipulated into selling – an enormous territory for a mere fraction of its actual value. Whether or not it was just is a question that lies beyond the limits of this report.

What should be noted is that in addition to the initial payments and the continuing annuities, the government did undertake to preserve the several bands in the reserve lands which they possessed. It should also be noted that, unlike the Robinson Treaties (1850), the Manitoulin Treaty (1862), and Treaties No. 3 (1873), 5 (1875), and 9 (1905 and 1929), all of which involved lands in Ontario, the Williams Treaties did not secure hunting and fishing rights for the bands involved. This was not only a departure from what had become an established practice, it also created some potential problems. The territory described in the Williams Treaties overlapped with territory taken in the Robinson-Huron Treaty and in Treaty No. 20 (The Rice Lake Purchase). Does the surrender of hunting and fishing rights in the Williams Treaties apply to the regions which overlap? Inasmuch as the bands who agreed to the Robinson-Huron Treaty were not involved in any of the 1923 arrangements would seem to be most unfair that this should be the case. It is also unlikely that it was intended at the time, but it may arise as a controversial point.

Appendix A: Report of R.V. Sinclair re The Chippewa Claim

Re. The claim of the Chippewas of Lakes Huron and Simcoe, and the Mississaugas of Rice Mud and Scugog Lakes for Compensation for unsurrendered lands.

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