The province is appealing an Ontario Court of Appeal decision in 2021

CBC Indigenous: More than six years since its first day in court, the Robinson-Huron treaty annuities case is being heard in the Supreme Court of Canada today and Wednesday.  

At the centre of the landmark case is a promise that annuities to Indigenous communities would increase according to the wealth produced by the land. Despite the billions of dollars in profits generated by the mining, forestry and fishing industries since the signing of the treaty, payments to the Anishinaabe were capped at $4 per person in 1874 and haven’t increased since. 

In 2018, Ontario’s Superior Court of Justice ruled the province had an obligation to increase the annuities.  The province appealed the decision to the Ontario Court of Appeal, which upheld the findings of the lower court in 2021.

Judges on Canada’s top court will be asked to examine Stages 1 and 2 of the trial concerning the interpretation of the augmentation clause and the defences of the Crown, respectively. 

In its factum, Ontario stresses 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.  The province maintains that governments ultimately have the power to decide how to allocate public resources, and these matters should not be dictated by the courts. 

“Ontario is seeking to argue that the decision is up to them,” said the lead counsel for the Robinson-Huron plaintiffs, David Nahwegahbow. “They say it might be reviewable, but the court cannot make the decision or issue an obligation to increase [the annuity].” 

Earlier this summer, a proposed $10-billion settlement agreement was reached between the Robinson-Huron Treaty signatories and the federal and provincial governments. 

The Supreme Court of Canada ruling in this case will not have any implications for this settlement, which is compensation for past annuities.  But it may have implications for future annuities negotiations, which have not yet begun but are very much at the centre of this case.

The Robinson-Huron Treaty Litigation Fund has invited the public to view the hearing at a live streaming event, which will held at the University of Sudbury on Tuesday and Wednesday.

A case with wider repercussions throughout Canada 

The case has garnered attention across Canada because it integrates Anishinaabe law, perspectives and principles in the judicial process.  “I think for me that’s one of the important aspects of the case,” said Nahwegahbow. “It is trying to get a really good handle on what the intentions of the parties were when the treaty was signed.” 

Aria Laskin, a lawyer with JFK Law, a firm that specializes in Indigenous law, is among the many people watching the outcome of the case closely.  “It’s a really good example of how historic treaty promises and historic treaties are often not honoured by the Crown,” said Laskin. 

Laskin said that while the annuities clause is unique to the Robinson treaties, the ruling will touch on many aspects of other historic treaties in Canada, such as past and ongoing grievances, the honour of the Crown and the scope of fiduciary duties.  “I can’t imagine a major Aboriginal law case that wouldn’t be at least to some degree influenced by the outcome of that case because of the number of issues in it,” she added. 

• ‘Canada has a lot of unpaid bills’: $10B settlement reached in landmark First Nation treaty case
• Ontario is still appealing the Robinson treaties case to the Supreme Court, despite proposed settlement

Both Laskin and Nahwegahbow said the case should be of interest to all Canadians.  “It’s not just the Anishnaabe that are treaty people,” said Nahwegahbow. 

Laskin said every person living in Canada with an interest in reconciliation should pay attention to the outcome of the case. 

“Sometimes there’s this false dichotomy that’s presented between balancing the needs of Indigenous and non-Indigenous Canadians, where people are put on different sides of the scale, but everyone has an interest in a fairer and just Canada.”

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.