The province’s appeal will be heard in the fall

CBC News: An out of court settlement agreement has been reached with one group of plaintiffs, but litigation in the Robinson treaties case is far from over. 

The Supreme Court of Canada is slated to hear Ontario’s appeal in November. 

The case concerns a promise made to the indigenous communities of the Robinson-Superior and Robinson-Huron Treaties of 1850.  A clause in these treaties promised annual payments to First Nation beneficiaries in exchange for the right to extract resources such as minerals, lumber and fish.

These payments were meant to increase according to the wealth generated from the land, but were capped at $4 per person in 1874 and haven’t increased since, despite the hundreds of billions of dollars in profits generated by industry over the past century and a half.

The province already agreed to pay $5 billion in compensation for failing to increase the annuities.

That agreement between 21 northeastern Ontario First Nations, Ontario and Canada was reached by negotiating outside of the courts.

As the treaty is a living document, the Crown’s obligation to make annual payments to Indigenous communities going forward remains. 

Several key questions, such as who will pay, how much will be paid and when, are unresolved for now.  Ontario hopes the Supreme Court will provide clarity on these issues.

No settlement for past annuities has been reached with the second group of plaintiffs in the case, who represent the beneficiaries of the Robinson Superior treaty in northwestern Ontario.  That group is hoping to obtain compensation for past annuities through an order of the Superior Court of Ontario, with closing arguments to be heard in September in Thunder Bay. 

Rulings of the Court of Appeal for Ontario

Due to the complexity of the case, the trial was heard in three different phases starting in 2018.

The first phase concerned interpretation of the annuities clause. The trial judge presiding over the case, Justice Patricia Hennessy, found that the wording of the text was ambiguous.  To understand the parties’ initial intentions, she considered the historical and cultural context of the treaty period. 

She reviewed over 30,000 pages worth of evidence to determine that the parties did not intend to fix a cap on the annuities, and the Crown was obligated to increase the annuities if it could do so without incurring a loss. 

The second part of the trial tested the Crown’s defenses, by bringing in questions on the statute of limitations and the notion of Crown immunity, but Hennessy ultimately rejected these defenses. 

Ontario then brought the case to the Court of Appeal. It argued that Justice Hennessy had erred in her interpretation of the treaties and in rejecting its defenses.

In 2021, a panel of five judges unanimously rejected the majority of the province’s arguments.

The case makes its way to the Supreme Court

The province is hoping it might have a different result by appealing to the Supreme Court. Canada, for its part, accepts the conclusions of the Court of Appeal for Ontario.

In its factum, Ontario stresses that the wording of the treaty should be interpreted to mean that increases to the annuity are at the discretion of the Crown, and are not for the court to rule on. 

In the trial, Justice Hennessy also found that the Crown had a discretionary power over how and when to increase annuities, but the fact that it didn’t honour its obligations for more than 150 years means it’s appropriate for the courts to intervene.

Ontario maintains that governments ultimately have the power to decide how to allocate public resources, and these matters should not be dictated by the courts.  In other words, the province agrees that it has to increase annuities to honour its obligations, but it wants to do so on its own terms.

It would rather achieve reconciliation through “meaningful engagement” with the signatories of the treaty, according to the factum. 

As for the beneficiaries of the Robinson-Huron treaty, they argue in their factum that “Ontario’s interpretation gives one partner complete power over the other.”  They add that this “privileges unilateral Crown actions and perpetuates an ongoing injustice.” 

Ontario has declined to be interviewed for this story, saying that, as the matter remains before the courts it would be inappropriate to comment.

• Dollar value of resources to be debated as final stage of treaty annuities trial begins
• Ontario says cost of ‘colonization’ infrastructure relevant in treaty annuity trial

A case that will set a “precedent”: lawyer

Dozens of third parties have submitted factums to the Supreme Court ahead of the hearing, including several First Nations from across the country and the attorney general of New Brunswick. “The case has attracted a lot of attention,” says the lead counsel for the Robinson-Huron plaintiffs, David Nahwegahbow. 

“It’s an important case that has a lot of implications for other treaties,” he said. 

Nahwegahbow believes that one of the important points about this case is that it has given “a high level of consideration to Indigenous legal orders” by giving weight to the Anishinaabe perspective of the Treaty relationship. “First Nations across the country are looking at that as an important precedent,” he said.

He says the case challenges the status quo in the treaty relationship between the Crown and the northern Ontario Anishinaabe.  “They are used to exercising power. They are used to the revenues being generated from shared land,” he said. 

“It’s going to take a lot of work, maybe ongoing fights with the court.” 

Nahwegahbow says being involved in this case has felt overwhelming at times, but that overall, he feels pride. “The case has galvanized people around the treaty and its importance,” he said. 

“It has caused a resurgence in Anishnaabe country.” 

ABOUT THE AUTHOR

Aya Dufour, reporter

Aya Dufour is a CBC reporter based in northern Ontario. She often writes about the mining industry and Indigenous sovereignty. Follow her on Twitter @AyaDufour.