If one believes in the maxim that one cannot give away or sell that which does not belong to you, then the provisions of the treaty negotiated between Governor John Nanfan and the Six Nations in 1701 can have no validity - despite beliefs to the contrary. The principle is enshrined in law under the term, Nemo dat quod non habet. See here for details. This principle is derived from English Common Law and is expressed succinctly here.
What is indisputable is that during the 1640s, the Six Nations (largely Seneca and Mohawk) conducted a war of utter destruction whereby the Native peoples living in Ontario were largely wiped out, and the few survivors were dispersed or adopted into the families of the victors. Thus the Huron, Petun, and Attiwanderonk (Neutral) peoples ceased to exist and Southern Ontario was "cleared" of human occupants leaving the area as a hunting ground for the Six Nations. Later Six Nations communities were established north of Lake Ontario and by 1687 there were 7 settlements established between Kingston and Hamilton. By the year 1700 all were destroyed or abandoned as the Six Nations retreated back to their traditional homeland. They were driven out by an alliance of their traditional enemies including the Ottawa, Potawatomis, and various Ojibway groups including primarily the Missisauga. The most comprehensive consideration of the wars of this era can be found in a 474 page book written by an author who attempted to explore the mobility and information gathering prowess of the Iroquois in the period of 1534 to 1701. See, Jon Parmenter, The Edge of the Woods, Michigan State University, East Lansing, 2010.
It is therefore somewhat puzzling that in the year 1701 the Six Nations decided to cede their beaver hunting grounds in Southern Ontario to the Crown. Here 20 Chiefs of the Six (then Five) Nations put their marks to what became known as the Nanfan Treaty. Here they, surrender, deliver up and forever quit claim the lands in Southern Ontario, which the Five Nations claimed to have conquered, to our great Lord and Master the King of England. The Five Nations asked only to be allowed to continue to hunt on the land in perpetuity.
Since the Missisauga owned these lands by right of conquest, the Five (Six) Nations had no right to be making a treaty relating to property which they did not in any form own in 1701. It is truly odd that even to this day, this Treaty is cited by many (who need to do more in depth research on the subject) as a justification of claimed rights by Six Nations to unregulated hunting and fishing in Southern Ontario. However the facts are clear, and despite the strong beliefs as to rights and entitlements here, the Nanfan Treaty is invalid and cannot be used as justification of any fishing and hunting privileges outside those enjoyed by the general citizens of Ontario.
The Six Nations are now using "treaty rights" to justify coercing power company owners building wind turbine projects in Southwestern Ontario (e.g., Port Ryerse) to "consult" and then to "negotiate" - meaning give a few million dollars to either the Elected or Confederacy Councils or other pressure groups. This is money that is in the category of "ill gotten gains". If these companies have such a generous spirit that for no reason they wish to turn over a large percentage of the profits to Six Nations, that is their choice. The point is that there is nothing based on "treaty rights" which would justify any interference by Six Nations with activities going on outside the bounds of the present day Reserve.
Prior to the establishment of this blog, Garry Horsnell provided an excellent overview of the subject as seen here. There is an excellent three part series on the Nanfan Treaty by those whose primary interest is the Dundas Valley (which has been impacted by the Six Nations invoking the Nanfan Treaty to assert rights to bowhunt in the Valley). Note particularly the copies of the original Nanfan Treaty (front and back of same) which may be the first time it has been seen outside of storage in Kew, London in a couple of hundred years. The research is exemplary and the articles well worth studying. See here, and remember to click on parts 1 and 2 also.
The Nanfan Treaty also directly addresses the matter of perceived Six Nations sovereignty - one of the most contentious of issues. This will be the subject of the next post.
Update: Please see here for a more detailed and current discussion of this topic. 20 January 2014.