The case involving First Nations in northern Ontario could redefine what Canada and Ontario owe to Anishinaabe treaty beneficiaries.

Toronto Star: OTTAWA—A landmark case heard by the Supreme Court of Canada this week could leave the federal and provincial governments on the hook for a $126-billion award to First Nations in northern Ontario for failing to honour treaties for 150 years.

The case could see the largest treaty settlement in Canadian litigation history and redefine the Crown’s obligation to treaty beneficiaries. It centres around two treaties signed in 1850 that gave the Crown access to a large swath of land in exchange for annual payments to the Anishinaabe people and a key promise: to share the wealth generated from the land over time.

Lawyers for the Ontario government and the First Nations involved made their arguments in front of Canada’s top court Tuesday and Wednesday.

The Robinson Huron and Robinson Superior Treaties contained an “augmentation clause” that made them unique. That clause said annual payments would increase “from time to time” as the land generated more wealth, if it could be done without the Crown incurring a loss.

The amount paid to the First Nations has not changed since 1875, when it was increased to $4 a person.

Since that time, billions of dollars in resources have been extracted from the land through mining, forestry and fishing. Meanwhile, thousands of the First Nations’ members and supposed treaty beneficiaries were left impoverished, deprived of the wealth generated while also enduring colonial policies including movement onto reserves, residential schools and the Sixties Scoop.

In 2018, Superior Court Justice Patricia Hennessy ruled that the Crown had broken its promise to the Anishinaabe people and that they were owed compensation. An appeal court upheld her decision.

That trial then proceeded to a third phase meant to determine compensation owed and how costs should be divided between the federal and provincial governments. Economists testifying on behalf of the Robinson Superior beneficiaries said they should receive up to $126 billion.

(Separately, the Robinson Huron groups reached a proposed $10.5-billion settlement agreement with the federal and provincial governments.)

Ontario wants the Supreme Court to weigh in on the issue of how compensation is determined.

A lawyer for the province acknowledged that Ontario has failed to honour the terms of the treaty, but argued that the wording of the augmentation clause makes it clear that increases are meant to be at the Crown’s discretion and not a matter for the courts to decide.

Ontario is asking the Supreme Court to issue a declaration that would guide the parties to reach an agreement — outside of court — on how much is owed. The federal government has accepted the decision of the lower courts, though it has not agreed to a specific settlement figure.

David Nahwegahbow, a lawyer for the Robinson Huron Treaty members, said the case will decide how the roughly 35,000 beneficiaries of both treaties will be compensated based on the promise of increased annual payments.

Nahwegahbow argued in court that a consideration of the Anishinaabe perspective was essential to understanding the treaty, which was centred on a nation-to-nation relationship with the Crown based on principles of respect, responsibility, reciprocity and renewal.

He argued that in sharing equally in the wealth of the land over time, the Anishinaabe expected that they would meet with the Crown “as often as needed to discuss how their needs are evolving and how the treaty relationship should adapt to unforeseen circumstances and changing circumstances.” That didn’t happen.

Ontario argued in written submissions that “reconciliation is best achieved” through the government and First Nations “developing their relationship through meaningful engagement rather than regular resort to the courts.”

In court on Tuesday, Peter Griffin, a lawyer for the Attorney General of Ontario, anticipated a question from the judges and posed it himself: “Given 150 years of failure, what assurance do we have that you’re going to do the job?” Griffin pointed out that Ontario had reached a $10.5-billion proposed settlement outside of court with the Robinson Huron members.

“Ontario has come a long way,” Griffin said, noting how in his view the province has softened its position over time, including no longer claiming that it has “unfettered discretion” on the annual payment amount.

“At some point, reality steps in and reality has stepped in for this government, that it has to deal with these issues,” Griffin said.

Justice Nicholas Kasirer weighed in on that point: “But you could understand, Mr. Griffin, the skepticism that some might feel when they hear from Ontario that … after 150 years reality has set in,” Kasirer said. “It took you a while.”

Lawyer Catherine Boies Parker, who represents Robinson Huron Treaty beneficiaries, said Ontario’s argument has been a “moving target” since the case began in trial court.

While waiting for the Supreme Court to hear Ontario’s appeal, Hennessy, the trial judge, chose to proceed with the third and final phase of the Robinson Superior annuities case. The case wrapped up in late September with closing arguments in Thunder Bay.

Joseph Stiglitz, a Nobel Prize-winning economist, testified during phase three that the First Nations are owed $126 billion. Ottawa conceded that the groups are owed “a considerable sum.”

Ontario argued that the province owes nothing because the costs of colonization — building railroads, roads and other infrastructure — exceeded its revenue from natural resources.

“For them to say that they’ve done the math and no money is owed, I think that’s preposterous,” Harley Schachter, a lawyer for several Robinson Superior Treaty First Nations who has been on the case for 25 years, said outside court.

Boies Parker said allowing phase three to proceed was important for the Elders involved in the case, considering the decades it has taken for the case to go through court.

“It has been a long journey so far and the Elders in the community, we’re losing them and they haven’t had an opportunity to see the results of this court case,” Boies Parker said. “I think it was important that this difficult issue of compensation start to be addressed.”

Joy SpearChief-Morris is an Ottawa-based reporter covering federal politics for the Star. Reach her via email: jspearchiefmorris@thestar.ca

Amy Dempsey is senior writer for the Star, based in Ottawa. Follow her on Twitter: @amydempsey.