With a stated federal goal of reconciliation with Canada’s First Nations, governments on both federal and provincial levels may find they will need to step up to the plate in order to make the talk less than merely symbolic.
And with the Robinson Treaties First Nations court actions launched last week, an Ontario court will be asked to consider the unique issue of annuity augmentation to band members.
In Mike Restoule, et al. v. The Attorn, The Attorney General of Ontario and Her Majesty the Queen in Right of Ontario, the Robinson Huron Treaty First Nations — of which there are 21 north of Lake Huron — are challenging what the plaintiffs call the government’s failure to implement specific commitments of the Robinson Huron Treaty of 1850, and specifically the annuity augmentation of the treaty.
The annual annuity paid to band members has not increased from $4 per band member since 1874.
“This annuity was to increase as the revenues increased, which would support the annuities without incurring a loss,” the Assembly of First Nations said in a news release.
The Robinson Superior First Nations treaty — under which are members of the Red Rock First Nation and Whitesand First Nation — has brought forward an action at the same time, which is being heard concurrently by Justice Patricia Hennessy of the Superior Court of Justice in Sudbury, Ont. The two Robinson Treaties, including annuities augmentations, were negotiated by William Benjamin Robinson on behalf of the Crown in 1850.
In the treaty, Robinson “agrees, that should the Territory hereby ceded by the parties produce such an income as will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them, then and in that case the same shall be augmented from time to time, provided that the amount paid to each individual shall not exceed the sum of one pound of Provincial Currency in any one year.”
Mike Restoule, who is chairman of the Robinson Huron Treaty Trust, a member of the Nipissing First Nation and a representative plaintiff in the court action, told Legal Feeds that the chiefs in the Robinson Treaties negotiations held firm for perpetual annuities in the treaty. “Along with that, an augmentation clause was inserted in the treaty in order to entice the leaders to agree to sign the treaties, because the chiefs argued that the annuity being offered by William Robinson was not rich enough.
“The chiefs were familiar with money and knew the value in their lands,” Restoule says. “Robinson Huron and Robinson Superior Treaties are the only ones in Canada — and in North America to my knowledge — that contain an annuity augmentation clause.”
The inclusion of annuities was continued in the numbered treaties signed in Western Canada, Restoule adds, “although none of them contain an annuities augmentation clause.”
Notwithstanding that, Toronto lawyer Derek Ground, who has handled a number of treaty cases on behalf of First Nations, told Legal Feeds that “this is one of those cases where the government of Ontario has taken the position that the substance of it has been litigated before. . . . The plaintiffs are relying, at least in part, on stated new or evolving relationships between the [federal and provincial] Crown and the First Nations,” he says.
“I think it’s fair to say that the courts themselves are re-evaluating their approach to First Nations issues, and are . . . inclined to look at the situation in a more modern context,” rather than necessarily the letter of the treaty as written, he says. The plaintiffs’ opening statement also makes reference to the treaty negotiations being conducted in English, a language that the Anishinabek signatories did not understand, although translators were employed.
On Sept. 25, the plaintiffs’ opening statement was made before Hennessy in Thunder Bay. The court is being asked to give meaning to the annuities augmentation provision based on the common intention of the parties at the time the treaty was made. The hearings will conclude on Oct. 20 in Thunder Bay before moving on to Manitoulin Island, Garden River First Nation and Sudbury. The perambulatory nature of the proceedings will allow the majority of the annuitants from the affected First Nations the opportunity to attend to the proceedings, says Restoule.
“We hope to accomplish a reasonable annuity, a proactive payment for losses dating back to 1874,” he says, “but it’s probably going to be subject to some negotiation . . . and then on a go-forward basis we hope for some settlement on how the annuities would be calculated.”
In written correspondence to Legal Feeds, a spokeswoman for Ontario’s Ministry of Indigenous Relations and Reconciliation said, “There are two ongoing and related legal actions against Ontario and the federal government seeking increased annuities under the Robinson Treaties.
“Ontario respects Aboriginal and treaty rights, as recognized and affirmed under s. 35 of the Constitution Act, 1982. We are committed to meeting the province’s constitutional and other obligations in respect of Indigenous peoples. . . .
“As a general matter, Ontario would prefer to negotiate rather than litigate as negotiated settlements can result in enduring solutions and strengthened relationships, which are an important step toward reconciliation. . . .”
There has been “a lot of noise made thus far about reconciliation,” Ground says. “But where the rubber hits the road, what do governments want to do about it? . . . Pre-Confederation liabilities, or debts, were the subject of arbitration post-Confederation; that includes the treaties,” he says.