Decision steeped in history

I spent the weekend reading through the decision of Mr. Justice J.S. Fregeau, who presided over the trial of Couchiching FN et al v. AG Canada et al.
I didn’t attend any of the court hearings, which ran here from Feb. 19 through March 28 last year, and now I’m kicking myself for skipping them.
The decision by Justice Fregeau reminded me of the book “Paris 1919: Six Months that Changed the World” by Margaret MacMillan. Her chronicle outlined the decisions in the negotiations and peace process following World War I and how decisions made then continue to impact the world today.
Justice Fregeau’s decision is a lesson in our local history going back to before Confederation and focusing on the development of Rainy River District. It is a case involving the creation and purpose of Agency 1 land known as Pither’s Point Park.
Through 130 pages in his decision, Justice Fregeau reviews the development of this area from a century prior to Confederation and the drive of the first governments of Canada to connect east with west.
The journey continued through to today.
The access across Northwestern Ontario required negotiations with the powerful Ojibway of the region, resulting in the signing of Treaty #3. It had been noted as early as 1847 that this area was rich in forests and had potential for agriculture development and settlement by Sir George Simpson.
Simon Dawson was appointed as a surveyor to map out a route from Fort William to Fort Garry, which carried through Fort Frances. Dawson became extremely knowledgeable of the First Nations’ people in the Rainy Lake and Rainy River area, and it was on his recommendations that a treaty was to be negotiated.
Dawson felt Fort Frances would grow into an area of commerce built on the lumber potential of the region, and he set aside a “two-chain” allowance where the lake emptied into the river for purposes of commerce and access.
He reasoned that right-of-way to lumbermen, booms, wharves, and other public purposes had to be secured. He looked at this as a way to improve transportation and to promote future development in the region.
Dawson, in his notes, wrote, “Fort Frances must soon become a place of importance. Land should, in consequence, be reserved not only for the public works necessary to surmount the falls but also for the site of the town.”
When it came time to identify land for the reserves of the region, Dawson recognized that a reserve close to the Hudson Bay Factory at Fort Frances for all the tribes of the Saulteaux was not the best solution. So he created Agency 1 for the use of all the tribes to continue meeting and camping.
All the bands had access to use it and no single band had control over it.
Up to that time, the Ojibway frequently used the area for camping, fishing, and building birchbark canoes. Agency 1 was created but a “two-chain” allowance was withheld.
The case lasting those several weeks last year spent much of the time focusing on that “two-chain” allowance, and whether or not that land around Agency 1 land belonged to the First Nation or to the province, which vested its interest in the property to the Town of Fort Frances.
Since the signing of Treaty #3, there have been several legal disputes regarding the “two-chain” allowance, with one being decided by the Privy Council.
Historians acting on behalf of both the plaintive and the defendants in the case provided Justice Fregeau with the history of the land and the cases that have been previously heard.
Much has been learned by the lawyers for the parties that I wished now, having read the decision, that I would have wasted my time hearing and learning our history in the courtroom.

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