Third stage of Robinson-Huron Treaty annuities case to continue in early new year

ONTARIO—The chair of the Robinson-Huron Treaty Litigation Fund (RHTLF) says the third and final stage of the ongoing court case over treaty annuity payments, which had been launched by signatories (including all First Nation communities on Manitoulin Island), will be going ahead early in the new year. “We’re prepared to go ahead,” stated Mike Restoule.

The third stage of the court case, will deal with the amount of compensation owed to beneficiaries under the treaty and which Crowns will be liable to pay these augmented annuities. At a virtual treaty week presentation made by Daniel McCoy, (a member of the legal team for RHTLF) last week, he explained Ontario had appealed the stage one decision earlier this year to the Supreme Court of Canada in regard to issues surrounding treaty interpretation, implementation and remedies for breach of treaty. “It’s a highly legal issue, and it really doesn’t have a lot of play in the facts around the annuities, the augmentation promise. But it is something I think the Supreme Court is very interested in tackling. The real question is how should appeal courts deal with appeals about treaty rights.” Deadline for the submission of intervenor motions is November 18. “They had applied to the Supreme Court of Canada for stay of stage three,” said Mr. Restoule. “But it was ruled that no, put it back to Superior Court. Justice Patricia Hennessy ruled that she wouldn’t go for it, and that stage three will be held beginning January 16. And the hearing for Ontario’s Supreme Court appeal of the stage one decision is to take place in the fall of 2023.”

A decision is expected to be handed down in the spring or early summer of 2024.

As has been reported previously, Justice Patricia Hennessy has ruled in favour of treaty beneficiaries (which includes all First Nations and the Wiikwemkoong Unceded Territory, on Manitoulin Island), agreeing that the Crown has not lived up to its obligations to increase annuity payments over time as mineral and forestry resources were being developed in treaty territory. Two appeals launched in Ontario in regard to those decisions have been rejected by the Ontario Court of Appeal.

The Crown had initially promised to pay a perpetual annuity of $2,400 under the 1850 Robinson-Huron Treaty that in 1850 would have worked out to approximately $1.60 per person. An augmentation clause, which allowed for increases in annuity payments over time, was supposed to provide additional incentive for Anishinabek communities to sign the treaty. The last increase in treaty annuity payments was in 1874 when the annuity was increased to $4 per person in Robinson-Huron Treaty territory.