Robinson-Huron treaty money lawsuit gets nod from Superior Court judge; Crown’s defence pleas come up short

SUDBURY – Justice Patricia Hennessy issued her ruling on the second of three phases in the Robinson-Huron Treaty (RHT) annuities case on Friday, June 26, a decision that recommended Canada and Ontario resolve the dispute with the 21 plaintiff First Nations over resource extraction stipends for RHT territories that have been frozen at $4 annually for 126 years.

“There has been essentially no increase to annuities for 150 years. This delay has had enormous negative consequences for the plaintiffs,” said Wiikwemkoong Ogimaa Duke Peltier at a press conference about the ruling, held on June 30. “This stems from colonial beliefs that promises made to Anishinabek can be broken.”

This lawsuit started in 2014 and is based on the 1850 RHT which involved lands from Batchawana Bay on Lake Superior to the Quebec Border in the Kirkland Lake area, down to Lake Nipissing and the French River and Manitoulin Island. There are three phases to the legal process.

The issue in question is that the original treaty contained a provision that annual payments to members of the First Nations should be increased as the value of materials extracted from the lands increased, up to the point that the Crown would not incur a loss as a result of giving out annuities.

The annuity began at $2 in 1850 and had doubled to $4 in 1874. Since then, however, the annuity has been frozen.

Justice Hennessy ruled in favour of the First Nations in phase one of the trial, which established that the original treaty created a ‘sui generis fiduciary relationship’ (meaning the colonial government was required to manage the lands and act in the best interests of the First Nations, a relationship that was specifically applicable to this case).

Ontario decided to appeal this ruling, though Canada has not. The disagreement between the respective responsibilities of the provincial and federal governments have been cited as a main reason why annuities have not increased in nearly 150 years.

Phase two of the case was to explore the Crown’s various arguments that it should not have to increase annuities or make up for lost payments in past.

These arguments included a statute of limitations—that too much time has passed between the last annuity increase and it should not be responsible for annuities before 1963, and that the Crown may be ‘immune’ from being sued.

Justice Hennessy ruled in favour of the First Nations in phase two and the trial will next advance into its third phase. This final phase concerns questions of compensation—how much is owed, where do the obligations rest between Ontario and Canada, and where the annuities should be set going forward.

“We don’t have faith that it’s going to be the actual value it should have been, had it been implemented from the (start of the RHT). I’m sure we’re going to have to settle on an amount,” said Chief Scott McLeod of Nipissing First Nation. He added that the lack of adequate annuities over 150 years have led to a “spiral” of social issues that must be overcome before the First Nations can begin to truly prosper.

Ogimaa Peltier said for governments and citizens alike, the most appropriate way to foster healing between all peoples moving forward is to acknowledge, honour and respect the treaty relationships that are integral to Canada as it exists today.

“A respectful relationship has to be paramount, honouring what our relations are has to be at the top of the education of every individual that lives in the territory,’ he said.

Chief Dean Sayers of Batchawana First Nation added that there are few current forms for sharing Indigenous history in public forums and many interpretive devices approach the past through a colonial lens.

“We’re working with Parks Canada now in the downtown area of Sault Ste. Marie, trying to tell another side of the story (through informational displays). That’s huge to generating an understanding of everyone on these lands today,” he said.

The settlement process has been costly. The lengthy first stage cost more than $9 million and the impact of Ontario’s appeal of that stage remains unknown. However, said legal team member David Nahwegahbow, the RHT team is confident with its case heading into the appeal.

That appeal will not have to be concluded before the start of phase three of the main case, which is scheduled for January of 2021.

Assembly of First Nations National Chief Perry Bellegarde hailed the phase two ruling in favour of the RHT First Nations as “a huge victory for treaty First Nations across Canada.”