Lawyer’s one-act play highlights the Crown’s 1850 perspective on the Robinson Huron Treaty
By Dorothee Schreiber
In final arguments for the Huron plaintiffs in the Robinson Huron Treaty Annuities case, Joseph Arvay closed his submission on June 4th by wondering if he might be permitted to “end with a little bit of levity.”
One of the things the experts in this trial disagreed on was the conversation that may have happened between Lord Elgin and William Robinson on August 30 or 31, 1850. The Crown was unable to produce a transcript of the discussions that took place at the treaty council, even though, as Mr. Arvay pointed out, “the Crown was in a position to have scribes, to do that very thing.”
“We’re going to take some liberties with the dialogue, your Honour” Mr. Arvay said, “to reflect the basic principle of treaty interpretation, that treaty rights are not frozen in time but must provide for their modern exercise.” Mr. Arvay suggested that this “play, of sorts” would help the court know more about the Crown perspective.
The following is how Catherine Boies Parker, Mr. Arvay’s colleague and the play’s author, imagined the conversation between the two Crown officials, based on the evidence presented at trial. Speaking the voices of both characters – William Robinson (Treaty Commissioner) and Lord Elgin (Governor General) – Mr. Arvay read the play out loud for the judge.
Location: Bawating
Robinson: My lord! I don’t have enough funds to make them a decent offer right now, nowhere near $10 per person. When I met with the chiefs last winter, they seemed to want an arrangement based on paying to them the revenues from mining but I don’t expect that will give us much more than what comes to $4 per person, unless some of those miners really strike it rich and we end up with more revenue as a result.
Lord Elgin: Yes. They keep saying they should get a share of what comes out of the land. Shingwaukonse will probably want something for the timber too. He’s been fighting Wilson on that for years, maybe not realizing the government doesn’t get very much from all that crazy speculation going on with mining right now.
Robinson: Well my lord, I’m thinking about doing what Vidal and Anderson suggested. We should promise them that they will get more if the territory ends up being a money maker for us. They will understand that. Vidal and Anderson didn’t tell us much about how that would work though. It’s been a nightmare for Jarvis trying to keep the revenues from land sales and the requests for funds from the chiefs straight, when he’s hardly got any staff. And Indians get a bit ripped off when the Crown Lands and everyone else takes a piece of each sale. And one-time payments for each sale of land doesn’t give them the ongoing security they seem to want with a perpetual annuity.
Lord Elgin: I hear ya.
Robinson: So instead of promising to just hand over or pay out the proceeds of each sale, let’s just promise that the value of the annual payments will go up when and if the revenue from the land can justify it. Let’s not try to promise to account for each sale, we’ll just revisit the annuity from time to time. But we need to give them some sense of what’s coming. Because there’s going to be hell to pay if they think they’re going to get that 40,000 pounds everyone’s talking about, and then we don’t deliver. I think if the money goes as generally expected, we can probably pay about 4 bucks a person, so put that in as the first marker. But I will promise them that you will order a further increase of revenue if it justifies it. You good with that?
Lord Elgin: Emoji: thumbs up. We can’t have another Mica Bay. [Inaudible] has been on my case to get this thing done. If the mining works out there could be good jobs for the new settlers in it. But if the companies can’t get their patents they might just walk away. I hear Macdonell is stirring up trouble again, this time at Michipicoten Island.
Robinson: I wrote to Macdonell about that and told him to back off. I think he will support this approach. But I can’t see him recommending that they take this deal without there being a right to an increase if revenues justify it.
Lord Elgin: Do you think you can get the Indians to believe we will actually increase it if we can? They don’t have much reason to trust the British these days. Given how this file has been handled so far by people like Vardon, someone like Shingwaukonse will be skeptical. His son was almost rude to me the last time we met. Do you think they will settle without having more cash in hand?
Robinson: Well, I may have a hard time convincing them how little we’ve gotten so far from the mining. Macdonell seems to have told them we got a lot more. So they might want more right from the get-go. But I think I can get them to trust me. And they still have a high regard for the Queen as the Great Mother, and for you, as her representative.
Lord Elgin: As they should! When I make a promise, I keep it, and if you make it on behalf of Her Majesty, I can tell you that she will be damn pleased to order it be done.
Robinson: I’ve been talking to Peau de Chat for about a week, and he seems ready to trust me. The Huron chiefs will be harder, but I’ll have Keating with me and they seem to trust him. It’s important that you let them know I’m here on your behalf and that I’m acting on your authority, so that they know I can commit you to these future payments.
Lord Elgin: I’ll be sure to mention that when we meet them.
Robinson: I know these people from my days as an Indian trader. Once they trust you and decide you’re serious about living up to your promises, they’re all in. But if we’re going to ask them to settle on the basis of the pittance I can offer them right now, they’re going to have to believe that if someone strikes it rich, they will get the benefit of that. Shingwaukonse is a shrewd guy. If all we offer is a really rotten deal for them, he’ll know we’re not respecting him, and he won’t trust anything we say. So if we’re going to ask them to settle for a dollar sixty a person now, then there has to be a real upside for them.
Lord Elgin: I hear ya.
Robinson: Yeah, and now that Macdonell has convinced them that their title under our law gives them the right to enter into their own leases, it just wouldn’t make any sense for them to settle for 20% or less of what everyone else has. We have to give them some incentive to take this crummy offer. When Shingwaukonse and Nebenegoching said last winter they would probably settle for what was on hand from mining, they probably thought it was a lot more, and they probably thought it was just for their own folks. Now we’re trying to settle with a couple thousand people. That’s a big deal.
Lord Elgin: Do you think you can get it ratified back in Toronto if it leaves things open like this?
Robinson: Who knows if the further payment thing will even kick in. This will cool things down for now at a bargain basement price. Government can’t complain too much, because the thing will be self-financing, just like the Welland Canal.
Lord Elgin: Has this ever been done before?
Robinson: Not exactly. I mean we had annuity agreements and we’ve had proceeds agreements, but this is the first time we tied the two together in this way. Makes good sense though, don’t you think? Remember, I used to be the Inspector General for a little while, so I know about trying to find creative ways to fund infrastructure over a period of years, and when you think about it, getting access to this land for development is kind of like infrastructure.
Lord Elgin: A dollar sixty seems low though. What if the money doesn’t pan out, how will they live?
Robinson: Well, I’m going to explicitly put in there that they can continue to hunt and fish and use the land until it’s actually sold so that should help. If the mining doesn’t pan out, likely no one will show up, so they’ll retain full use of the land.
Lord Elgin: Gosh Bill, you’re a really smart cookie. Thanks for your help.
Robinson: No problem Jim. It was really Shingwaukonse’s idea anyway.