Annuities Trial: Noted anthropologist takes the stand for Ontario

EDITOR'S NOTE: A previous version of this story incorrectly identified Dr. Alexander von Gernet as having testified on behalf of the federal government. In fact, von Gernet testified for Ontario.

An anthropologist testifying on behalf of the Province of Ontario in the Robinson Superior Treaty annuities trial says the last increase to treaty payments made nearly 150 years ago happened despite financial losses occurring in the territory at the time.    

Dr. Alexander von Gernet, who has previously provided expert testimony for the federal government in a number of Indigenous rights and land claim court cases, told a Sudbury courtroom Thursday that records from Ontario in 1879 showed net gains from lands within Robinson Superior Treaty territory totalled just over $101,300 from 1850 to 1877. 

In a slide presentation outlining his findings, von Gernet also showed that revenues from the land exceeded expenditures in only nine of those years.  

Robinson Huron Treaty territory, meanwhile, reflected a net loss of more than $2,300 in the same 27-year period, with revenues only exceeding expenditures in six of those years.  

When the gains and losses for both treaty territories were combined as part of von Gernet’s research, he concluded there would’ve been a net gain of more than $98,000 in the same time frame. 

The same research — which has been the topic of discussion over the past three days of von Gernet’s testimony — suggests that the Crown began bumping annuities up to four dollars per capita in 1875 at a time when both treaty territories were realizing net losses.

The four-dollar treaty annuity hasn’t been increased since then, which is why signatories to both Robinson Superior and Robinson Huron treaties have been battling the federal and provincial governments in Ontario Superior Court for years. 

In the previous two stages of the annuities trial, Ontario Superior Court Justice Patricia Hennessy ruled that the federal and Ontario governments had to pay an increased annuity for both Robinson treaties that reflected a “fair share,” so long as there were enough resource-based revenues to do so without incurring a loss.

In both, the province’s Court of Appeal mostly upheld those decisions. But while the federal government let both rulings stand, the Province of Ontario is taking the decisions to the Supreme Court of Canada.

The third stage of the Robinson Superior Treaty annuities trial, which will determine the amount of compensation owed and which level of government is responsible for paying it, is currently being heard in Ontario Superior Court. 

It’s expected that von Gernet — who has spent the past three days in court explaining his seven-chapter report, which outlines the complex history of government efforts to pay annuities arising from the 1850 Robinson treaties — will wrap up his expert testimony Friday and undergo cross-examination from legal counsel for Robinson Superior Treaty communities next week.  

Meanwhile, a number of signatories to the Robinson Huron Treaty took to social media this week, reiterating to community members that the third stage of its own treaty annuities trial has been adjourned to allow for confidential negotiations with Canada and Ontario as the parties work towards an out-of-court settlement. 

“We remain positive that the negotiations will result favourably for our 21 First Nations, however, there are no details regarding amounts or dates until a settlement has been reached,” said a social media post from Batchewana First Nation chief and council Thursday. 

Ontario’s Supreme Court of Canada appeal for the previous Robinson Huron Treaty court decisions has since been delayed due to the ongoing settlement negotiations.