Fish, mines and Indigenous Rights ensnared in court case in northern Ontario

By Emma McIntosh, The Narwhal

Emma and photographer Christopher Katsarov Luna spent four days in northwestern Ontario, including visits to White Lake and Netmizaaggamig Nishnaabeg.

The Great Lakes News Collaborative includes Bridge Michigan, Circle of Blue, Great Lakes Now at Detroit PBS, Michigan Public and The Narwhal who work together to bring audiences news and information about the impact of climate change, pollution, and aging infrastructure on the Great Lakes and drinking water. This independent journalism is supported by the Charles Stewart Mott Foundation. Find all the work HERE.

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The trouble started up again as winter gave way to spring last year, and walleye gathered at their spawning grounds in White Lake in northern Ontario.

For years, people in Netmizaaggamig Nishnaabeg — an Anishinaabe community tucked along the lake’s eastern shore — had alleged poachers were catching huge quantities of fish from the waters. For about as long, the nation says it asked the Ontario Ministry of Natural Resources, which enforces fishing-related laws, to investigate and charge the people responsible. Most of the time, the requests had gone nowhere.

Walleye are most vulnerable during the spring spawning season, a sacred time in Anishinabek culture and a period when Ontario’s laws bar most people, though not Indigenous Rights holders, from harvesting them. Each spawn is critical for their ongoing survival — walleye numbers on White Lake have dropped in recent years, a trend the community blames on spring poaching. So when reports of alleged poaching started to trickle in again in April 2024, Netmizaaggamig sprung into action. The nation says it asked the Ministry of Natural Resources for help but was told there weren’t enough conservation officers to patrol the lake. So the community decided to take the issue into its own hands.

“This is where our people get our food source from,” Chief Louis Kwissiwa told The Narwhal. “Without that, how are we supposed to live?

Netmizaaggamig set up around-the-clock checkpoints of its own on the lake, an enormous undertaking for the nation with about 1,000 members, about 400 of which live on two reserves located just inland from Lake Superior about halfway between Sault Ste. Marie and Thunder Bay. The nation also called on leaders from neighbouring communities for help, hoping their presence on the water would deter alleged poachers from netting walleye in spawning areas.

Last year’s conflict over the walleye is now part of a court case unfolding in northern Ontario, with broader implications for Indigenous Rights. In it, Netmizaaggamig says the alleged poachers were members of two other First Nations — but lays the blame for the situation squarely at the feet of the Ontario government.

Strictly speaking, Netmizaaggamig’s court filings are focused on mining, not fish. In documents filed in divisional court over the winter, the nation said it wants a judge to review the Ontario government’s decision to include two nations — Ketegaunseebee, also known as Garden River First Nation, and Batchewana First Nation — on the list of communities to be consulted about two mining projects near Netmizaaggamig’s reserves on White Lake.

Garden River and Batchewana both have reserves around Sault Ste. Marie, hundreds of kilometres from White Lake as the crow flies. Batchewana also has reserve land on Lake Superior, at Batchawana Bay, but both are signatories to a treaty that covers areas of Lake Huron — not Superior. Nonetheless, both say they have documented, longstanding ties to Lake Superior, and that their traditional territories, including common hunting areas used for generations, extend northwest to the area around White Lake.

Netmizaaggamig disagrees, arguing the other two nations have never shared territory with Netmizaaggamig and should not be included in two mining consultation plans. By including them, Netmizaaggamig alleges, Ontario emboldened members of Garden River and Batchewana to “make expansive claims that harm [Netmizaaggamig’s] rights and interests,” the nation argues, culminating in the alleged fish poaching.

Netmizaaggamig’s claims have not been tested or proven in court, and Ontario and the other nations involved have strongly contested them. Garden River First Nation in particular challenges the use of the term “poaching.”

“As long as our members are adhering to the rules of sustainable harvesting, they are exercising their legitimate rights to harvest within our shared traditional territory,” Garden River said in a written response to The Narwhal’s questions.

“It’s important to clarify that the core issue here is not about unlawful activity but rather about our collective rights to our traditional territories. The claims made in this case seem to overlook the broader context of those rights, which we’ve maintained over time, and the misunderstanding around terms like ‘poaching’ only complicates the conversation.”

Batchewana First Nation declined to comment for this story, and has argued in court that the case should not be allowed to proceed.

The Ontario government did not respond to questions about the walleye crisis on White Lake or the unfolding court case. In the past, the province has said that its conservation officers patrol the lake regularly during spawning season, and in court, its lawyers have argued Ontario is on solid legal footing in consulting Garden River and Batchewana about the mining projects.

It’s unclear when or even if the case will have a day in court. Netmizaaggamig was unable to meet a legal deadline to file its application due to the situation on White Lake last spring, and has asked a judge to allow it to proceed with its application anyway. The Ontario government, Batchewana and Garden River have asked the court to deny that request.

Regardless of where or how it may eventually be resolved, the roots of the dispute can be traced back over 170 years to a report written by Crown representatives a year before the treaties covering the northern shores of lakes Huron and Superior were signed. The result is a mess created by the Crown, leaving First Nations divided.

The Robinson Treaties take shape and create complications around Lake Huron and Lake Superior

The northern shores of Lake Huron and Lake Superior are covered by two treaties signed in 1850, both bearing the name of Crown representative William Robinson. From the beginning, there have been disagreements over their meanings, with wide-ranging implications for First Nations.

At the time, getting some sort of treaty in place was an urgent task. The British colonial government of the day had granted mining permits to a flood of settlers in the upper Great Lakes region, without the consent of the Anishinabek who had lived there since time immemorial. Anishinaabe leaders called for the miners to leave — or for the Crown to agree to a treaty that gave their nations a share of the profits of resource extraction from their territories. Tensions simmered.

In 1849, the Crown sent two representatives, Alexander Vidal and Thomas G. Anderson, to talk to the nations in the upper Great Lakes region and assess the situation. The same year, anger in the region boiled over and three Anishinaabe chiefs led a group to shut down a mine at Mica Bay on Lake Superior. Vidal and Anderson’s report urged the government to act fast and resolve the issue of land rights. The Crown sent Robinson north the following year to get something in writing with the chiefs on lakes Huron and Superior, telling him it was especially important he negotiate a deal for land around the Mica Bay mine.

Robinson met with a group of Anishinaabe leaders in what is now Sault Ste. Marie — or Bawating in Anishnaabemowin, meaning the place of the rapids — where lakes Huron and Superior connect along what’s now known as the St. Marys River. The rapids have long been an important gathering place for nations in the region. (Spellings of the name in Anishinaabemowin vary — others include Baawaating and Bawahting.)

By the time those negotiations were done in 1850, Robinson had signed two treaties, reaching an agreement with the Superior chiefs present a few days before the ones from Huron. The results were the Robinson Huron Treaty and the Robinson Superior Treaty. The boundary between them, according to the texts, was a line between Lake Superior’s Batchawana Bay and the height of land separating the Great Lakes basin from watersheds to the north.

The problem is, no one knows exactly what that means. Where on Batchawana Bay? Its warm, shallow waters and sandy beaches stretch on for kilometres. Where on the height of land, which follows an irregular course all the way around Lake Superior? And how do you draw a line between those two places, anyway? Robinson didn’t say — not in the treaties, not in his own diaries, nowhere.

Batchewana and Garden River are both located in Bawating, at the junction between Lake Huron and Lake Superior. Both signed the Robinson Huron Treaty, but say their traditional territories include areas of Lake Superior as well. Garden River has said they understood the two treaties to form one single agreement, and regardless that they reserved the right to continue to use the land where and how they always have beyond the borders of the Robinson Huron Treaty.

And, to make it even more complicated, Netmizaaggamig and a half-dozen other Lake Superior nations have never signed a treaty at all.

The events of 1849 and 1850 — particularly Robinson’s vague wording, and disputes over the accuracy of the Vidal and Anderson report — set the stage for future conflict. Before the treaties, the communities would have dealt with territorial disputes nation-to-nation. But the treaties, the boundary lines drawn in them, added layers of complication. Versions of this problem are playing out across Canada in communities covered or not covered by different treaties, each with a unique set of problems and uncertainties.

The Robinson Treaties guaranteed various rights to different nations depending on where and how they used the land as of 1850 — but ever since, there has been disagreement over where exactly those rights apply and how.

Netmizaaggamig and Garden River have different views that each nation says are backed up by oral history, colonial documents and modern studies. Batchewana declined to comment on its perspective.

Unclear wording in treaties leads to conflicting interpretations

Batchewana and Garden River, both Robinson Huron signatories, have long said their traditional territories include areas of Lake Superior as well. Batchewana has reserve land on Lake Superior at Batchawana Bay, an hour’s drive north of Bawating, and its Elders say the nation’s original territory extended farther northwest to an area that includes White Lake. Garden River says its traditional territory also extends up the Lake Superior coastline to White Lake, and community members who are alive today “vividly remember” their parents and grandparents harvesting there.

In a January 2024 court filing responding to Netmizaaggamig, the Ontario government has sided with Batchewana and Garden River, saying the two nations do have rights on land Netmizaaggamig asserts is its sole traditional territory. The province points to the 1849 Vidal and Anderson report: in Ontario’s interpretation, the two Crown representatives described a huge stretch of land near Lake Superior, encompassing White Lake, as common hunting territory shared by multiple nations, including Garden River and Batchewana.

Netmizaaggamig, however, contests Ontario’s interpretation of the 1849 report and denies it had common hunting grounds with Batchewana and Garden River.

“The commissioners included in their report unclear wording and roughly sketched entries on a map, regarding the areas occupied by bands north of Lake Superior,” Netmizaaggamig wrote in a court filing.

“These cannot be cogent evidence of [Batchewana or Garden River’s] rights outside their treaty territory.”

Netmizaaggamig said Vidal and Anderson missed their community when they passed through in fall 1849. Netmizaaggamig people traditionally ventured farther inland to hunt at that time of year, while Vidal and Anderson mostly stuck to areas closer to the Lake Superior shoreline.

Netmizaaggamig has been pushing the Ontario and federal governments to recognize its rights since the 1970s, and has spent decades negotiating a title claim, a process that has not yet been resolved.

Garden River told The Narwhal it sees this history differently: the nation says Netmizaaggamig’s traditional territory was farther inland, in an area known in 1850 as Rupert’s Land, which the Crown granted to the Hudson’s Bay Company.

Netmizaaggamig told The Narwhal its historical research, which has underpinned its title claim negotiations with Ontario and Canada, does not support Garden River’s conclusions. Netmizaaggamig says its traditional territory has been centred on White Lake and the surrounding area since time immemorial, with areas both north and south of the height of land.

 

“We know our own territory and who was here,” Netmizaaggamig said in a statement. “[Netmizaaggamig] had to establish the validity of its claim based on a lot of solid evidence before it was accepted for negotiations.”

Another complication is a 1994 court decision centred on whether a man from Batchewana was within his rights to shoot a moose on a different nation’s territory, about halfway between Bawating and White Lake, on the lands of the Robinson Superior Treaty. The justice of the peace who decided the case also weighed in on the line between the two Robinson Treaties after consulting a historical expert witness, affirming the existence of the common hunting ground Vidal and Anderson wrote about.

Netmizaaggamig argues the 1994 court case isn’t a fair precedent. The case made no mention of Netmizaaggamig, the community wasn’t represented in the hearings and the nation questions whether a justice of the peace has the authority to decide First Nations’ territorial rights.

Netmizaaggamig prepares for the walleye spawning season

With ice melting off northern lakes and spring now arriving, the question of the walleye is on everyone’s minds again.

In their court filings, Batchewana and Garden River say Ontario’s decision to consult them about mining projects near Netmizaaggamig doesn’t encourage people to poach fish from White Lake. Batchewana said the allegations are “bare” and “underscore a lack of merit” in the case.

These are “serious and inflammatory allegations,” Garden River said, “supported only by hearsay.”

Both say they’ve been consulted about mining projects in the area for many years without issue, and their inclusion on the consultation lists doesn’t affect Netmizaaggamig or its rights. Instead, they see the consultation as an affirmation of rights they’ve always had, to know about what’s happening in a common hunting and fishing area.

If anything, Garden River alleges, the mining companies involved have used Netmizaaggamig’s perspective as a justification for not addressing Garden River’s concerns.

“The claim of Netmizaaggamig of alleged poaching or unsustainable harvesting isn’t relevant to the case we’re discussing,” Garden River told The Narwhal in its written response to questions, adding that Netmizaaggamig should report poaching to the “appropriate authorities” instead of using them to “throw mud” at Garden River.

“The matter at hand is their application to remove Garden River from the consultation list, and that’s the key issue we need to focus on. [Netmizaaggamig] is trying to remove Garden River’s rights.”

Netmizaaggamig said the nation feels it’s being bullied into conceding its rights. “These are trespasses to our land and our resources,” the nation said in a statement.

Netmizaaggamig’s court filings don’t make it clear exactly who it is accusing of illegally poaching fish from White Lake and when incidents happened, though the nation said it has evidence that has not been presented in court. Police were present on White Lake last spring, but responsibility for fish and wildlife offences rests with the Ontario Ministry of Natural Resources, which Netmizaaggamig says has so far declined to lay charges or intervene.

The ministry did not respond to questions about its handling of alleged poaching on White Lake.

Netmizaaggamig says it is preparing to have staff and community members out on White Lake again this year to protect the walleye as they spawn, and that the nation is talking with the ministry this spring about the situation.

Meanwhile, the nation’s case continues to wind through the courts. It’s unclear when or even if all sides will have the chance to fully share their perspectives, as lawyers debate Netmizaaggamig’s motion to extend time after the late filing.

Garden River told The Narwhal it seeks a “resolution that aligns with Anishinaabe law, upholds our cultural traditions and respects our sovereignty as guaranteed by the Crown in the signing of the Robinson Treaty.” The nation says it has made “good faith efforts” to work with Netmizaaggamig and hopes they can still arrive at a solution.

“This situation puts First Nations, including Garden River, in a difficult position,” Garden River said.

“We are forced to make a choice between dedicating limited community resources to fund a court battle to protect our rights or investing those same resources into essential community infrastructure and operations. This is an unjust and untenable situation for any community to be in, especially when our rights and concerns are not being adequately addressed.”

In their court filings, Netmizaaggamig also says it would prefer to settle concerns through Anishinaabe decision-making processes, though it fears a court proceeding might ultimately be necessary.

“Ontario created this mess,” Kwissiwa told The Narwhal. “We’re going to have to fix it.”

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Catch more news at Great Lakes Now: 

Life on the frontlines of Ontario’s critical mineral boom

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Featured image: A dispute over Indigenous Rights is playing out on White Lake in northern Ontario. But the roots of the issue go back to the 1800s, when documents created by the Crown left a mess for First Nations on Lake Huron and Lake Superior. (Photo Credit: Christopher Katsarov Luna/The Narwhal)