Saturday, 2 November 2013

The Nanfan "Treaty" of 1701 Does NOT Give Six Nations People Special Hunting, Fishing and Consultation Rights in Ontario

If one believes in the maxim that one cannot give away or sell that which does not belong to you, then the provisions of the treaty negotiated between Governor John Nanfan and the Six Nations in 1701 can have no validity - despite beliefs to the contrary.  The principle is enshrined in law under the term, Nemo dat quod non habetSee here for details.  This principle is derived from English Common Law and is expressed succinctly here.

What is indisputable is that during the 1640s, the Six Nations (largely Seneca and Mohawk) conducted a war of utter destruction whereby the Native peoples living in Ontario were largely wiped out, and the few survivors were dispersed or adopted into the families of the victors.  Thus the Huron, Petun, and Attiwanderonk (Neutral) peoples ceased to exist and Southern Ontario was "cleared" of human occupants leaving the area as a hunting ground for the Six Nations.  Later Six Nations communities were established north of Lake Ontario and by 1687 there were 7 settlements established between Kingston and Hamilton.  By the year 1700 all were destroyed or abandoned as the Six Nations retreated back to their traditional homeland.  They were driven out by an alliance of their traditional enemies including the Ottawa, Potawatomis, and various Ojibway groups including primarily the Missisauga.  The most comprehensive consideration of the wars of this era can be found in a 474 page book written by an author who attempted to explore the mobility and information gathering prowess of the Iroquois in the period of 1534 to 1701.  See, Jon Parmenter, The Edge of the Woods, Michigan State University, East Lansing, 2010.

It is therefore somewhat puzzling that in the year 1701 the Six Nations decided to cede their beaver hunting grounds in Southern Ontario to the Crown.  Here 20 Chiefs of the Six (then Five) Nations put their marks to what became known as the Nanfan Treaty.  Here they, surrender, deliver up and forever quit claim the lands in Southern Ontario, which the Five Nations claimed to have conquered, to our great Lord and Master the King of England.  The Five Nations asked only to be allowed to continue to hunt on the land in perpetuity.

Since the Missisauga owned these lands by right of conquest, the Five (Six) Nations had no right to be making a treaty relating to property which they did not in any form own in 1701.  It is truly odd that even to this day, this Treaty is cited by many (who need to do more in depth research on the subject) as a justification of claimed rights by Six Nations to unregulated hunting and fishing in Southern Ontario.  However the facts are clear, and despite the strong beliefs as to rights and entitlements here, the Nanfan Treaty is invalid and cannot be used as justification of any fishing and hunting privileges outside those enjoyed by the general citizens of Ontario.

The Six Nations are now using "treaty rights" to justify coercing power company owners building wind turbine projects in Southwestern Ontario (e.g., Port Ryerse) to "consult" and then to "negotiate" - meaning give a few million dollars to either the Elected or Confederacy Councils or other pressure groups.  This is money that is in the category of "ill gotten gains".  If these companies have such a generous spirit that for no reason they wish to turn over a large percentage of the profits to Six Nations, that is their choice.  The point is that there is nothing based on "treaty rights" which would justify any interference by Six Nations with activities going on outside the bounds of the present day Reserve.

Prior to the establishment of this blog, Garry Horsnell provided an excellent overview of the subject as seen here.  There is an excellent three part series on the Nanfan Treaty by those whose primary interest is the Dundas Valley (which has been impacted by the Six Nations invoking the Nanfan Treaty to assert rights to bowhunt in the Valley).  Note particularly the copies of the original Nanfan Treaty (front and back of same) which may be the first time it has been seen outside of storage in Kew, London in a couple of hundred years.  The research is exemplary and the articles well worth studying.  See here, and remember to click on parts 1 and 2 also.

The Nanfan Treaty also directly addresses the matter of perceived Six Nations sovereignty - one of the most contentious of issues.  This will be the subject of the next post.

Update:  Please see here for a more detailed and current discussion of this topic.  20 January 2014.

DeYo.

5 comments:

  1. Well written, thank you for this post and your research. Please check these two posts, here:

    "Haudensaunee deer hunting in Dundas Valley – a “treaty right” or a fraud?"
    http://mydundasvalley.com/2013/10/02/deer-hunting-in-dundas-valley-a-treaty-right-or-a-fraud

    - and -

    “Conveyance of lands by the Native American Chiefs of the Five Nations”
    http://mydundasvalley.com/2013/10/15/conveyance-of-lands-by-the-native-american-chiefs-of-the-five-nations

    The Government of Ontario and the Ontario MNR recognize the 1701 Albany Deed as a treaty based on a few court decisions (e.g.: R. v. Ireland and Jamieson [1990], R. v. Barberstock [2003]). These decisions are heavily leaning on the Supreme Court of Canada decision in R. v. Sioui [1990] that refers to a different case and to the agreement and document actually signed by General (later Governor) James Murray - (a Crown representative - granting the Hurons free exercise of their customs and religion in surrendered territory in today's Quebec). The various criteria and justifications mentioned by Chief Justice Lamer to recognize Gen. Murray's written note as a "treaty" do not apply to the Albany Deed of 1701 and are incompatible with the so called "Nanfan Treaty." I will write about it and post it in "My Dundas Valley," in the near future.

    HDI leadership and their lawyers, including Paul Williams, are also using the so called "Johnson letters" argument to prove that the Crown did recognize the "Albany Deed" as a treaty. History shows that the "Albany Deed" and the correspondence between Johnson and the Board of Trade and Plantations were being used by the Crown to pitch the Iroquois against the French in their quest for the French Territory, which in 1701 was illegal as it violated the terms of the 1697 Ryswick Treaty between England and France.

    I have a good reason to believe that, today, the Ontario government is using the so called "Nanfan Treaty" and the deer hunt in order to pitch the affected non-native communities against the Six Nations and their claims. And it is working, as the situation in Hamilton and in St. Catherines clearly demonstrates.

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    1. Thanks for your comment! I have added a link to your website. You have done your homework to be sure. The inclusion of the original copies of the Nanfan Treaty makes your case all the more persuasive. I have a strong attachment to the Dundas Valley, where I hike frequently - anything that can be done to preserve it in all its pristine beauty is to be supported. Hopefully this can be resolved on the basis of the data, which to me could not be more clear. The Nanfan Treaty is largely a worthless document misused by all parties (although of interest to my research on totem signatures). It was and is largely about politics. Best, DeYo.

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  3. Here is a new article dealing with legal aspects of the "Nanfan Treaty" in Ontario:

    http://mydundasvalley.com/2014/10/16/the-nanfan-treaty-legal-considerations

    All the best, DeYo!

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  4. OMG I cant believe you have the nerve to be saying that anything we have is ill gotten gains when we lost almost all of the land we were given and we still cant get the government to give us our trust fund that they stole. After all the years of children stolen from their families and forced to endure mind control at the hands of your ancestors. Thats pretty rich.

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