First Nations Relationship to Development of Rail:

A Literature Review

Lauren Doxtater

January 12, 2016

CoalitionforAlgomaPassengerTrains

Literature Review: First Nation Relationship to Development of Rail

This literature review will look at the First Nation relationship to the development

of rail focusing on the Northern and Eastern Ontario Rail Network potential train loop

(Appendix A). The four main objectives of this literature review are: 1) to summarize

what has been written about this subject already, 2) to provide background information

in preparation to writing a research proposal that includes investigating First Nation

communities perspectives on the railway along the Huron Central and Algoma Central

rail lines; 3)inform the Coalition for Algoma Passenger Trains (CAPT) board of

directors and supporters about the history of First Nations relationship to rail and aid in

First Nation engagement and 4) aid in facilitating and initiating possible First Nation ownership in restoring passenger rail service in Northern Ontario.

As evident in the following review, there is very little distinctly written about this

topic. It is summed up in the book, History of the Canadian Northern Railway by

Regehr “’National policy’ trumped concern if Indians could cope with the challenges of

settlement and agriculture development to which the railway companies, Indian

department and Minster were committed” (Regehr, 1976, p.174). As such, little is

recorded on this topic about First Nations persons albeit they are recorded as a passing

description in primary sourced journals and recognized as inconveniences to the

economic prosperity that the railroad would create. Evidenced by the literature is the

longstanding patriarchy and race-based policies that helped colonize Canada ultimately

created a successful railway development without First Nation consultation in Northern Ontario.

Exceptionally rare is written text and documentation from the perspective of the

First Nations bands and lack of historical content directly related to uprisings,

confrontations and claims with First Nations. There is information regarding rail

development in British Columbia on reserve lands but not regarding the land that falls in

the region where the North Eastern Ontario rail network covers. Given the limitation of

written text, the requirement for research to be conducted using oral history and

qualitative data methodologies with First Nation bands within the NEORN region would provide a more comprehensive perspective of rail relationships.

The colonization of Canada was built on national policy created by Canada’s first

Prime Minister, Sir John A. MacDonald. This national policy included settling western

Canada with the development of the Canadian Pacific Railway in 1881. Governmental

policy was the building block that led to land expropriation from First Nations beginning

with the Royal Proclamation of 1763. Treaties in Northern Ontario were then created

with First Nations that would seek to remove traditional land rights. The Indian Act

would further remove self-governance from these communities which meant that

decisions regarding land were vested in the hands of an Indian Agent which most often

did not always act in the best interest of the band members. First Nations were further

subject to encroaching Canadian legislation that aided the development of the rail to occur across the country (Appendix B).

The relationship that existed when contact was made by Europeans required the

friendship, respect and trust that First Nations were willing to offer founded within the

1613 Kaswhenta or Two-Row Wampum between Dutch settlers and the

Haudenosaunee peoples (Two-Row Wampum Belt, n.d.). First Nation knowledge of the

land including animals, hunting practices, medicines and geography was required

knowledge for Europeans to survive in North America. With the rise and fall of the fur

trade economy, First Nations were on a path that removed traditional economies and

the enticement of readily available goods that supported a more ‘convenient and

efficient’ life. Subsequently, without the need for First Nation knowledge of the land as

well as allies in war, colonization of Canada could then occur through government policy

with European religions paving the way. Outlawing First Nation cultural practices and

the institution of residential schools destroyed First Nations ways of living. (Giddings, 2008)

The idea of land tenure itself is a colonized one. Settlers’ beliefs regarding

private ownership of the land existed for governments and those who sought to control

the land. The development of reserve land attempted to acculturate First Nations into

carrying similar beliefs that land was to be privately owned. (Baxter & Trebilcock, 2009)

Privatization of land and the development of agriculture based communities was the

attempt to Britainize First Nations communities. The Royal Proclamation is the founding

document that solidified Britain’s position on Aboriginal land rights. Kent McNeil (1997)

states in the article, “Aboriginal Rights in Canada: From Title to Land to Territorial

Sovereignty”, that the Royal Proclamation of 1763 is the primary document that refers

to Aboriginal title to land and the beginning of the transfer from First Nations to the

crown. This document allows the Crown to purchase land from First Nation bands and begins the formation of the numbered treaties.

Treaties were created between the government of Canada and First Nations

beginning in Eastern Canada with movement westward. These treaties were designed

to appropriate the land utilizing surveyed pieces of land ‘reserved for Indians’ and

thereby Crown ownership of unreserved land was vested with the government and all

socio-economic profits forthwith. Numbered treaties that surround the North Eastern

Ontario Rail network are the Robinson-Huron and Robinson-Superior Treaties of 1850

and the James Bay Treaty created in 1905. (Aboriginal Affairs and Northern Development Canada [AANDC] website, 2013a,b,c)

This new land development of reservations removed the traditional hunting and

gathering that many First Nations were accustomed to and instilled invisible borders that

inhibited prior connection to vast expanses of land. Knowledge of the land, plants and

animals in a newly controlled environment, devolved rights and severed land meant that

First Nations could not employ their traditional knowledge to the land that was only

available to them within treatied boundaries (MacDonald, 1990). Treaties made in

Ontario were subject to the Dominion of Canada and the provincial government. The

writing of the James Bay Treaty described the encroachment of the rail line in northern

Ontario and the persistence of surveyors which rendered the “making of the treaty necessary”. (AANDC, 2013c)

Surveying parties of the Transcontinental railway, the Timiskaming and Northern

Ontario railway and Ontario township surveyors were constantly met by Indigenous

people who lived in the area. The reserves located within James Bay treaty lands were

selected by the commissioners after consultation with the Indians. These parcels of

land were deemed supposedly advantageous to the First Nations and selection was

based on non-interference ‘with railway development or the future commercial interests

of the country.’ (AANDC, 2013c) It was also written that the federal government could

decide to sell or dispose of the land with the consent of the Indian bands; however,

Indian bands could not, on their own, sell or alienate the reserve lands themselves. The

treaty states that if reserve land is required to be used for public works including

railways by the Dominion of Canada, bands will be compensated in equivalent dollars or

land. (AANDC, 2013c) The wording of the Robinson Huron and Robinson Superior treaties does not include that specific language. (AANDC, 2013a,b)

The Indian Act was created in 1867 by the Canadian federal government. The

Indian Act was an amalgamation of the Gradual Civilization Act 1857 and the Gradual

Enfranchisement Act 1859. The Gradual Civilization Act was created to make the

Indian a civil one based on the premise that if he owned and worked his own land he

would become a contributing member of Canadian society. Subsequently, if band

members were deemed to be ‘educated, free from debt and of good moral character’

they would be afforded the right to 20 hectares of colonial lands by enfranchising

themselves. Enfranchisement meant the Native relinquished all tribal ties and was now

a recognized contributing member in the new colony, on the same level as his white

counterparts (Milloy, 1978).

The Gradual Civilization Act assumes the responsibility of reserve land

distribution in that the lands that were to be given to the enfranchised Indian could be

taken directly from reserve lands by constitutional authority. This began the

displacement of tribal authority over tribal lands. This act, as titled, gradually removed

the individual’s membership as each Indian signed his rights away with enfranchisement

and each reserve’s lands were being portioned off. First Nation councils denied the

potential individuation of lands within reservations setting the stage for political

disruption to occur between First Nations and the province of Canada. First Nations

were upset by the lack of provisions for the customary communal use of reserve lands

and the subsequent dismantling of tribal ownership resulted in active resentment about

government involvement (Milloy, 1978). Subsequently the Gradual Enfranchisement

Act of 1859 contained much of the same information. The Indian department had now

created a list of enfranchised Indians and their allotted reserve land. The Indian now

has land and money given to him from the tribe’s annuities but is denied the right to any

other benefit that the tribe may encounter. (Routing Used to Enslave the Sovereign Indigenous Peoples, 2013).

The Indian Act became legislation that would require First Nations to rely on the

Federal Government for any and all decisions pertaining to themselves. These laws

established the methods for addressing individual land ownership, electoral rights, band

membership, and reservation finances. These and other provisions profoundly removed

the rights of the community and individual right to self-determination, (Justice Laws

website [JLW], 2013). At the time of the rail road development in the 1880s the Indian

Act would be the vehicle to drive land transactions to rail companies and propriety on

behalf of the Indian agent and with that all land based decisions had to be made in conjunction with an Indian agent. (Giddings, 2008)

The decision for selling reserve land was vested with the Department of Indian

Affairs (DIA). This was coupled with the government’s discretion over land utilization for

railways that presented the likelihood that the land would be sold back to the

government. This did occur and sometimes at a rapid pace. Land that rail companies

needed to acquire for building rail would need to be surveyed prior to rail development.

In British Columbia it was noted by MacDonald (1990) that railway companies were

required to obtain “a certified copy of right of way plans for each reserve to be crossed”

(MacDonald, 1990, p.42) with the government. The company also had to deposit

money with the government in case of settling any claims concerning the right of way.

When issues over land arose between provincial and Dominion levels of government,

the DIA would step in and “push ahead with an evaluation of the compensation for the land for which application had been made.” (MacDonald, 1990, p.42)

The methods in which government policy, government agents and

departments as well as major corporations such as the Canadian Pacific Railway

could utilize autocratic principles to guide expropriation of land for use of the

railway have been addressed thus far. The following two examples describe how

these organizations ideologies compete with those of First nations in regards to

land acquisition. The examples also highlight how government sanctioned

adjustments to policy, terminology and justice changed the outcomes of what could have been advantageous and just for First Nations today.

In the Legacy of Shingwaukonse, Janet Shute describes how in 1911 the

Canadian Pacific Railway with the help of the government of Canada and Indian Affairs

are able to work together to remove land rights from Garden River First Nation. The

issue described is a trespassing claim by Garden River in regards to the CPR extracting

gravel from 32.3 acres in Garden River land base and selling it to local buyers . With

the help of Indian agents, Garden River was able to quote a dollar amount to the CPR

and negotiate a settlement that would see Garden River becoming prosperous as a

result. First Nations saw this as a claim regarding ownership of resources while CPR

and Indian Affairs looked at it as identifying if “more land should be alienated.” (Shute,

1998, p. 228) Indian Affairs ultimately relegated the band ‘to the status of mere

‘occupiers’ of the land” (Shute, 1998, p.229), dropped the trespassing claim and the

CPR was successful in expropriating the 32.3 acres of Garden River land resulting in a $5,282 land and gravel sale minus $1,293 in legal costs. (Shute, 1998)

The year 1887 sees the CPR building a spur line to Sault Ste. Marie. This line

would be created in Garden River’s fertile lands and the band requested the line to be

moved ½ mile north. This was viewed as an exaggeration by Indian Affairs and families

were not compensated as a result. CPR had in fact been removing gravel from four

pits, removal of property without

band permission resulting in the

band demanding payment and no

land surrender for railway would

occur. However, Ogista, the Garden

River chief at the time passed away

prior to seeing this claim through and

subsequently the land, a station, and

the four gravel pits were

expropriated. (Shute, 1998) Shute

states that the “lack of consideration for Ojibwa views on this occasion fostered tensions

Figure1.HuronCentralRailwaytrainonGardenRivertrainbridge.GardenRiver,Ontario.Photocredit:twurdemann

which pervaded all future relations between the land and the CPR.” (Shute, 1998, p. 208)

The example of the interaction between Garden River and the Canadian Pacific

Railway displays characteristics of the politics that interplayed between the First Nation

bands, corporations and the Government of Canada. In addition to community response

to railway development, the addition of qualitative data in the research will be able to

create a personal description of the effects of the railway that can only be transferred

through oral methodologies. The Coalition for Algoma Passenger Trains was given

permission by Shirley Horn, a Missanabie Cree First Nation member to use her story; she keenly remembers how the passenger train affected her life in Northern Ontario.

“There were several ways that I and other members of Missanabie Cree First Nation used the train. For example, we used it to get to our trap lines and to traditional hunting grounds. I particularly remember that as children we took the train from our home in Missinabie to Shingwauk Residential School in Sault Ste. Marie. In the fall we left from Missanabie Station on the CPR line and got off at Franz where the CP line crosses the ACR. We would stay there overnight with relatives and have one last good meal until after the school term ended. The next morning we would board the southbound ACR train at Franz and go to the Sault and Shingwauk.” (S. Horn, personal communication, April 3, 2013)

This literature review has identified some of the key players and their roles

in land expropriation for railway use. It depicts the subjectivity policy had in

restricting self-governing practices over land for First Nations and also places the

First Nation band within unfamiliar processes that have led to defeat on most of

the claims and any justification of land tenure that they may have had. The

research on the subject so far has yielded a substantial amount of literature from

a Eurocentric perspective including passing reflections on how the rail line was

utilized for hunting and a means of labor for First Nations but has yet to include First Nation worldview history and current reflections of rail in northern Ontario.

It is the intention of the North Eastern Ontario Rail Network to support and

facilitate the development of First Nation history and its relationship to rail, a

major initiative of the Canadian government’s colonization strategy. Research

will display this relationship including recovery of Aboriginal knowledge on the

effects of rail, informing the CAPT and NEORN board of the person-in-

environment aspect to First Nation perspective and will also encourage and

produce dialogue in the reconciliation processes between First Nations and

Canada.

AppendixA.NorthernandEasternOntarioRailNetworkRailLoop.

AppendixB.TimelineofPoliciesAffectingFirstnationsinRailDevelopment

1613• Kaswhenta

1763• RoyalProclamation

1850• RobinsonSuperiorTreatySigned• RobinsonHuronTreatySigned

1857• GradualCivilizationAct• GradualEnfranchisementAct

1867• IndianAct

1879• RailwayAct

1880• CanadianNational/CanadianPacificRailwayIncorporated

1887• CPRLinetoSSMthroughGardenRiverterritory

1899• AlgomaCentralRailwayIncorporated

1905• JamesBayTreaty

References

Baxter, J. & Trebilcock, M. (2008). Formalizing land tenure in First Nations: Evaluating the case for reserve tenure reform. Indigenous Law Journal, 7, 45.

Constitution Act, 1867 (30 & 31 Victoria, c. 3 (U.K.). Retrieved from Justice Laws website: http://laws-lois.justice.gc.ca/eng/Const/page-4.html#h-18

Copy of the Robinson Treaty Made in the Year 1850 with the Ojibewa Indians of Lake Superior Conveying Certain Lands to the Crown. (2013a). Retrieved from the Aboriginal Affairs and Northern Development Canada website : http://www.aadnc-andc.gc.ca/eng/1100100028978/1100100028982

Copy of the Robinson Treaty Made in the Year 1850 with the Ojibewa Indians of Lake Huron Conveying Certain Lands to the Crown (2013b, Ci 72-1264). Retrieved from Aboriginal Affairs and Northern Development Canada website: http://www.aadnc-aandc.gc.ca/eng/1100100028984/1100100028994

Giddings, K. (2008) A narrative description of contemporary negotiations between the

Canadian Pacific Railway and five Indian Bands regarding land taxation and land tenure rights in British Columbia. (Doctoral dissertation, University of Calgary).

Indian Act, Revised Statues of Canada (1985, c. I-5). Retrieved from Justice Laws

website: http://laws-lois.justice.gc.ca/eng/acts/i-5/

McDonald, J. A. (1990). Bleeding day and night: the construction of the Grand Trunk Pacific Railway across Tsimshian reserve lands. Canadian Journal of Native Studies, 10(1), 33-69.

McNeil, K. (1997). Aboriginal rights in Canada: From title to land to territorial

sovereignty. Tulsa J. Comp. & Int'l L., 5, 253. Milloy, J.S. (1978). The early Indian acts: Developmental strategy and constitutional

change. In I.A. Getty & A.S. Lussier (Eds.), As Long as the sun shines and water flows: A Reader in Canadian Native Studies (pp. 56-60). Vancouver, BC: 2000.

Routing to enslave the sovereign indigenous peoples (2013). 1857 Gradual Enfranchisement of the Indian Tribes. Retrieved from http://signatoryindian.tripod.com/routingusedtoenslavethesovereignindigenouspeoples/id11.html

Sharp, P. F. (1955). Three frontiers: Some comparative studies of Canadian, American, and Australian settlement. The Pacific Historical Review, 369-377.

Shute, J. E. (1998). The legacy of Shingwaukonse: A century of native leadership.

Toronto, ON: University of Toronto Press Incorporated.

The James Bay Treaty - Treaty No. 9 (Made in 1905 and 1906) and Adhesions Made in 1929 and 1930 (2013c, Ci 72-0964). Retrieved from the Aboriginal Affairs and Northern Development Canada Website: http://www.aadnc-aandc.gc.ca/eng/1100100028863/1100100028864

Two-Row Wampum Belt (Guswhenta or Kaswhenta). (n.d.). Retrieved from: http://images.ourontario.ca/1812/2687087/data