Elder challenges Supreme Court jurisdiction over treaty obligation

Digging for minerals is a wound on Mother Earth that will take a long time to heal

To the Expositor:

A recent headline read, “Supreme Court gives Ontario right to appeal treaty obligation.” There are three instruments that are legally binding in international law: a treaty, a covenant and a convention.

The Robinson Huron Treaty was made between sovereign Indian nations and the British Crown, via treaty commissioners. So, if a treaty is a legally binding instrument recognized in international law, then a domestic entity like the Supreme Court of Canada has no jurisdiction to hear Ontario’s appeal. Ontario has no business interfering in the enforcement of the Robinson Huron Treaty because it is merely, and only, a province. Ontario is not a sovereign national entity. 

The reason that the matter came to light in the first place is that Robinson Huron Treaty beneficiaries had been receiving the whopping sum of $4 a year in exchange for sharing the land and the resources underneath the land. The Robinson Huron Treaty did not grant any water rights to the British. Waters within the Robinson Huron Treaty area still belong to the Indian beneficiaries. 

The $4 a year annuity-in-perpetuity payment has an interesting background.  It came to be because the British treaty commissioners realized that they could not afford to pay the principal price of the land they wanted. So they went back to their accounting table and came up with the brainwave of paying interest on the principal. They did the calculation and realized that they could not afford to make the interest payments, either. Finally, someone in the British treaty commissioners’ camp came up with the idea of paying only interest on the interest of the principal—otherwise known as an annuity-in-perpetuity. 

In addition, this calculation needs to be made: the number of square kilometres of Robinson Huron Treaty land x the purchase price per square kilometer, the purchase prices being an ethical and fair value of the land. Add to that compound annual interest for 172 years that the Robinson Huron Treaty has been in effect. Add the rate of inflation since 1850 and the number of beneficiaries as of 2022. Indians are not interested in whether or not the Crown suffered a loss. The Crown entered into the Robinson Huron Treaty taking the risk of suffering a loss. If the debtor wants to plead bankruptcy, no problem, we Indians will just take back our lands. The waters were, and are, ours. 

A prominent advocate on behalf of Indigenous peoples stated recently: “the highest honour of the Crown is to meet their treaty obligations with the Indians.” The entire matter needs to be taken to an International Court which has jurisdiction for hearing cases between sovereign entities. 

As to the intent to push ahead with the “Ring of Fire” in Northwestern Ontario, Ontario will have to get past Nishnawbe Aski Nation (NAN). NAN’s traditional territory spans great swaths of Northern Ontario beyond the boundaries of “Indian reserves.” Traditional territories are used for hunting, fishing, gathering, medicinal purposes, ceremonial and sacred purposes, for just plain everyday living.  

In case anyone hasn’t noticed, we human beings are smack dab in the midst of a global climate crisis. Raging forest fires, flooding, drought, heat domes, and invasive species burrowing into our territories are examples. Digging into Mother Earth for extraction of minerals is a wound that will take a long time to heal. Cutting down great swaths of forest without planting replacement seedlings is also a great wound to Mother Earth. Indigenous peoples globally will continue to resist incursion on the natural world.

Mii sa iw. 

Marie McGregor Pitawanakwat