Ontario appealing agreement that would enhance Robinson Huron Treaty annuity funds

ONTARIO – The province of Ontario has filed an appeal with the Supreme Court of Canada concerning the Robinson-Huron Treaty annuities case, which seeks leave to appeal an Ontario Court of Appeal in early November which had ruled in favour of the 21 First Nations (including all those on Manitoulin Island, and Whitefish River) within the Robinson-Huron Treaty.

Brian Gray, spokesperson for the Ministry of the Attorney General, told The Expositor in an e-mail January 7, “On January 4, 2022, Ontario delivered an application seeking leave to appeal the November 5, 2021, Court of Appeal decision to the Supreme Court of Canada. The Court of Appeal decided a number of important legal questions and Ontario is seeking to have the Supreme Court of Canada provide clarification on key issues of treaty interpretation and obligations.”

“Further details of Ontario’s position on the appeal will be available when the factum is filed with the Supreme Court of Canada, if leave to appeal is granted. As this matter is before the courts, it would be inappropriate to comment further,” Mr. Gray added.

In its Supreme Court of Canada appeal document, Ontario raises the issue of the role of the courts in treaty implementation by advancing the view that “The Court of Appeal majority’s interpretation puts courts, rather than the parties to the Robinson Treaties, at the centre of treaty implementation and will leave little room for the normal government function of assessing the multitude of factors relevant to appropriate resource-sharing and what constitutes a balance between the ‘relative wealth of needs of the different communities.’ This transfer of authority from a government process to a treaty process has sweeping implications, a Robinson Huron Treaty Litigation Fund (RHTLF) release reads.

“No, we are not too happy with this decision by Ontario,” Mike Restoule, chairperson for the RHTLF told The Expositor. “We would have preferred an invitation to sit down at the table and come to a settlement. And after the court decision (in 2021) the province said that they met Chiefs (Duke) Peltier and Dean (Sayers) and that they would do the right thing.”

“Further litigation is not the right thing,” stated Mr. Restoule. “Doing right is sitting down at the table to reconcile our differences. The Ontario government missed the mark completely.”

“It is absolutely disappointing that Ontario would rather litigate than negotiate,” said Ogimaa (Chief) Duke Peltier of Wiikwemkoong Unceded Territory in an RHLFT release. “You cannot complain that the courts are overstepping their rule when you don’t like the result, especially when the government is relying on litigation to avoid negotiating and then complains that the court threatens the role of the government to negotiate mutually desired results.”  

“Ontario is unwilling to mandate settlement negotiations, even though Canada and the Robinson-Huron Treaty First Nations want to negotiate,” said Chief Dean Sayers of Batchewana First Nation.

The Robinson Huron Treaty First Nations brought a court action against Ontario and Canada in September 2014, claiming the Crown breached a promise to augment the annuity payable under the Treaty. 

The Ontario Superior court ruled in favour of the Anishinaabe in 2018. Canada accepted that decision, but Ontario appealed and the Ontario Court of Appeal rejected most of Ontario’s appeals in a decision last year. Both courts urged the Crown to settle.

In 2018, the Ontario Superior Court ruled that both the federal and provincial governments have an obligation to increase annuities when economic circumstances warrant, after the 21 First Nations in Robinson-Huron Treaty territory took legal action against Canada and Ontario in 2014.

The annual treaty payment, which sees each of the roughly 30,000 beneficiaries of the 1850 Robinson-Huron Treaty entitled to receive $4 annually, hasn’t increased since 1874.

Prior to the 1874 increase, treaty beneficiaries received an annual payment that worked out to approximately $1.60 per person.

Canada chose not to appeal the stage 1 and stage 2 decision in the case, instead creating a mandate process allowing for negotiation and settlement of treaty annuities cases, along with the requirement that Ontario be party to the negotiation and settlement process.

Ontario’s appeal of the stage 2 decision was struck down, while the appeal of the stage one decision, wasn’t exactly struck down, said Chief Sayers, but affirmed a majority of the trial decisions that the Ontario government had been appealing.

“Ontario cannot be trusted to fulfill its treaty obligations, even when told to do so by the courts. That brings dishonour to the Crown,” said Chief Sayers in a release. “The Court of Appeal confirmed that the Crown has a mandatory, enforceable obligation to increase the annuities payable under the Treaty when resource revenues exceed the expenses related to collecting, maintaining and supporting those revenues. The Court held that the parties through negotiations, or the court in stage three must now, “determine the form, level and aim of the sharing that the augmentation clause requires.” 

Chiefs Peltier and Sayers, in a joint statement said “we get the distinct feeling that the government of  Ontario is engaged in a strategy of delay. Perhaps the current government thinks that, in the face of an upcoming election, that it’s better to be resisting versus embracing reconciliation. It fails to acknowledge and factor into their analysis that our treaty neighbours, like the municipalities of Sault Ste. Marie, Sudbury, Parry Sound, Blind River and Espanola are supporting our call for settlement. These treaty neighbours understand they are treaty people as well, and are acting honourably and in accordance with reconciliation.” 

“The government of Ontario is clinging to the colonial imbalance of power relationship where the Crown as government exercises a discretion to increase annuities, in a manner that advances their view of their Treaty obligation. This discretion has only been exercised once and the annuity is only $4 per person,” the RHLFT release states. 

“Such a view has been thoroughly rejected by the courts and is seemingly contrary to the words we heard from the Premier and Minister Greg Rickford in their assurances that the government would do the right thing,” Ogimaa Peltier said.

“In my view, the Ontario government is just buying time,” Mr. Restoule told The Expositor. “They want this to go to the side until the (provincial) elections are over this year. They feel they are going to lose this case but what they are doing is a complete waste of resources and time. In the end they know they have to reconcile with us.”

“This latest move is very regressive, and reminds us of colonial times where the British were the boss and everyone would have to do what they wanted. This is not the case anymore,” Ogimaa Peltier observed.

The RHLTF annuities litigation team will review the application for leave to appeal and respond accordingly.

Ogimaa Peltier said a decision could be made by the Supreme Court of Canada as early as this spring on whether it will grant an appeal hearing to the provincial government.