Letter: An alternative view to The Expositor’s “Indigenous favourable” articles

The Robinson-Huron annuities case will damage already fragile government revenues

To the Expositor:

The Expositor had some very interesting articles about the Restoule (Robinson-Huron Treaty annuities) case in its April 13 edition, all favourable to the Indigenous side of it. I offer an alternative view.

In December 2018, the Ontario Superior Court of Justice released the Restoule decision rendering Canada and Ontario equally liable to pay the 21 Robinson Treaties bands their “fair” share of all Crown revenue received from sales, leases and licenses, less expenses, derived from Robinson Treaties-surrendered lands (covering basically the entire Lakes Huron and Superior watershed), retroactive to 1850. The bands court winnings will likely amount to hundreds of millions of dollars, maybe more, which the already hard-pressed Ontario taxpayers will have to come up with.

The Court concluded that Canada and Ontario acted dishonorably by in effect unknowingly short-changing the Treaties bands of entitlements owed to them. 

The bands’ court winnings will be in addition to the already substantial voluntary, “Honour of the Crown,” non-treaty payments and benefits regularly paid by Canadian taxpayers to them, and the bands show no inclination to voluntarily reduce their winnings by the amount (in the billions of dollars over the past 100 years) of these non-treaty payments and benefits received.

There will then be a form of double recovery, which the law usually regards as unfair. Ontario taxpayers will no doubt regard this as unfair as well when they realize what it’s going to cost them in additional taxes that will have to be paid.

This ruling is, with respect, ill founded. Ontario has appealed the decision, and the appeal is being argued now, but the federal government, to the harm of Crown sovereignty, Canadian social unity and the Canadian taxpayer, has not appealed.

The 1850 Treaties clearly state that that the bands “freely and voluntarily” cede to the Crown all Treaties lands. The Treaties neither grant the bands a share of proceeds of the subsequent Crown disposition of lands nor of the resources within them. There was no evidence before the court that since the Treaties were signed either the Crown or the bands acted as though the Treaties were more than what they were—“one-time agreements”—providing, in exchange for the full and final surrender of the lands, a fixed annual annuity (set at $4 per year in 1875), lands for reserves, and the right to hunt and fish year-round on the surrendered lands.

Relying upon recent Supreme Court of Canada decisions very favorable to Indigenous interests, the bands argued that a proper re-interpretation of the long-ago Treaties was that they had only agreed to “share” the lands. They sought a retroactive share of Crown revenues from them. The court agreed.

The court found that, according to the “Anishinaabe perspective and worldview,” the bands purportedly thought they were entering into a nation to nation-type “alliance”—“a reciprocal relationship between independent entities” involving “shared spaces and resources.” Accordingly, as the court ruled, the surrender of the Treaties lands in 1850 was really a “gift” to the Crown, given with the “cultural expectation of equal reciprocity”—that being the sharing of the future proceeds of the Crown development of the land.

The court further ruled that, properly re-interpreted, the Treaties were not “one-time agreements” after all. They were actually “future oriented agreements situated within an ongoing relationship” that needed to be “reviewed” and “renewed” as circumstances change, and that the “augmentation clause,” which on its face is entirely discretionary in the Crown’s favour, should be re-interpreted to meet that end. The virtual absence of complaints by the bands until only very recently about not getting their “fair share of the lands” since 1850—about not getting their $4 per year augmented—should not, the court held, because of the “honour of the Crown” doctrine, be held against them.

With respect, it defies common sense and historical knowledge to think that in the midst of all the cultural mixing and borrowing that had taken place between Europeans and aboriginals in the 200-year period before 1850—including all the “cultural appropriation” of Euro-Canadian ways and means by the Anishinaabe—that the Indian band signatories did not understand the Treaties in the same way as the Crown did. And the court’s decision ignored and overturned over 150 years of conduct on the part of both Treaties parties that confirmed their common intention that it was indeed a one-time agreement and that the Crown had no obligation to augment the $4 per year annuity payment. The economic development of Northern Ontario has been and remains based on this conduct. Rights and interests, public and private, have been based on it.

This ruling, if it stands, will damage the already fragile government revenue, (Ontario is basically insolvent now), further destabilize the Ontario economy and further erode Crown sovereignty, already dangerously weakened by earlier Supreme Court Indigenous law decisions. When Ontario taxpayers are told that their taxes will have to go up to pay for the Indigenous court winnings, there will be resentment. Social division, the opposite of reconciliation, will occur.

This ruling prevents the anachronistic Robinson treaties from ever becoming civically vestigial. It contemplates an infinite, never stable, ever-changing, race-based relationship between non-Indigenous and Indigenous Northern Ontarians. It is demoralizing for all Canadians who believe in a true, civic coming-together of all Canadians, regardless of race.

Ontario should pursue its appeal with vigor, and if it loses in the Court of Appeal, appeal to the Supreme Court of Canada. 

Our politicians, in fact all of us, should start thinking along Nelson Mandela’s goal and vision of “one set of laws for all” to better bind Indigenous and non-Indigenous Canadians together, instead of, as this decision will do if upheld, further bankrupt and socially divide us.

(A lengthy analysis by me of this profoundly consequential Restoule trial decision can be found at thereisnodifference.ca). 

Sincerely,

Peter Best, lawyer

Sudbury