Treaty No. 9 and the Question of “Unceded” Land South of the Albany River in Subarctic Ontario, Canada

Abstract

The James Bay Treaty-Treaty No. 9 was unique among the numbered treaties of Canada in that there was a need for the concurrence of the Province of Ontario. Last-minute negotiations by the Dominion of Canada to gain said concurrence led to an agreement with the Province of Ontario, and this agreement became part of the Treaty No. 9 package at Ontario’s insistence. However, since the agreement was not executed until after the Treaty No. 9 expedition had left for the field, an incomplete Treaty No. 9 package that lacked the agreement was presented to and signed by the First Nation groups in 1905. Furthermore, spaces had been left in the vellum copies of Treaty No. 9 and the agreement to add in the date of the agreement when fully executed. In the spaces that were left for this purpose, the date of the agreement was backdated to 3 July. This act of deception was suggested by the Treasurer of the Government of Ontario, A. Matheson in order to date of the agreement earlier than the date in the Treaty. Thus, the common law legality of the Treaty No. 9 package must be questioned, especially since officials of the Governments of Canada and Ontario left documentation of their deception. Without the agreement being attached as specified in the Treaty No. 9 document that left Ottawa in 1905, consideration of the terms of the agreement by the First Nation signatories of the treaty could not have occurred prior to signing. It follows that there exists a question of whether the land south of the Albany River was ever ceded in Treaty No. 9 from a common law perspective, unless documentation can be presented indicating that the complete Treaty No. 9 package was presented to the First Nation signatories; the written record indicates otherwise. In the end, the courts will have to decide the legality of Treaty No. 9 from a common law perspective.