Renewal of 'council fire' a must for treaty partners to negotiate future annuities: legal team

Representatives for beneficiaries and trustees of the Robinson Huron Treaty are calling on the Crown for a renewal of the council fire with its treaty partners after the country’s top court determined it “dishonourably breached its sacred promises” to the Anishinaabe of the upper Great Lakes under the Robinson treaties.  

In a unanimous decision delivered Friday, the Supreme Court of Canada ruled the Crown made a “mockery” of its treaty promise to the Anishinaabe in its failure to increase annuity payments of $4 per person for nearly 150 years, under a rare augmentation clause which allowed for increases to those annuities as revenues and wealth from resource extraction on the land grew over time. 

During a news conference held in Sudbury on Monday, Litigation Management Committee member Duke Peltier thanked ancestors, elders and the Creator for aiding the Robinson Huron Litigation Fund in its lengthy legal battle to right a historic wrong.    

“We want to acknowledge the vision of our ancestors in 1850 to ensure we had the ability to benefit from our lands and resources — in the face of massive settlement and massive resource development — and not to have to live on the handouts of $4 per year, per beneficiary,” said Peltier. “We also acknowledge and thank all the ancestors who have guided us and strengthened us on the steps toward achieving their intentions and expectations regarding the treaty.” 

The Huron and Superior Anishinaabe ceded more than 100,000 square kilometres of territory encompassing Thunder Bay, North Bay, Sault Ste. Marie and Sudbury to the Crown, in exchange for an annual payment in perpetuity, under the pair of treaties signed in 1850.  

When the treaties were first signed, the annuity was equivalent to about $1.70 per person under the Robinson Huron Treaty and $1.60 per person under the Robinson Superior Treaty. 

Annuities were raised to $4 per person in 1875 and have not been raised since — a move described as “shocking” in Friday’s decision — leading the Supreme Court to rule that any increase to treaty annuities must be “consistent with the honour of the Crown” going forward. 

In the decision handed down Friday, Supreme Court Justice Mahmud Jamal said the failure to augment the annuities has left the Anishinaabe with an “empty shell of a treaty promise for almost a century and a half."

“Thus, in my view, the Crown must increase the annuity under the Robinson Treaties beyond $4 per person retrospectively, from 1875 to the present. It would be patently dishonourable not to do so,” Jamal wrote. 

The ongoing breach of the treaty’s augmentation clause led to the Lake Superior Anishinaabe filing a statement of claim in 2001, with the Lake Huron Anishinaabe filing its own claim in 2012.

The claims were heard simultaneously in Ontario Superior Court, with the court case being broken up into three stages due to its complexity: Stage One addressed the interpretation of the treaties, Stage Two considered Ontario’s defences of Crown immunity and limitations, and Stage Three concerned the plaintiffs’ claim for damages and the allocation of liability between Canada and Ontario. 

In 2018, Superior Court Justice Patricia Hennessy ruled the Crown had a "mandatory and reviewable" constitutional obligation under the 1850 treaty to increase annuities as wealth generated from the land grew, so long as the Crown could do so without incurring a loss. 

Canada did not appeal those rulings. But the province proceeded to appeal parts of the decisions in the first two stages of the court case. 

The Ontario Court of Appeal upheld the decisions in 2021. The province subsequently filed an appeal in higher court, leading to hearings which took place in November 2023.

A $10-billion settlement between the Huron plaintiffs and the Crown was finalized earlier this year, with Canada and Ontario agreeing to pay $5 billion each in past compensation. Proceeds from the historic settlement are expected to flow into 21 First Nations next month.

The Superior plaintiffs opted to proceed with their claim, which seeks $126 billion in damages for breaches of the treaty. The case resulted in a ruling last September, with the Supreme Court ordering it to be held in reserve pending the release of Friday’s decision.  

The Crown has now been ordered to hammer out an agreement with the Superior Anishinaabe within six months of the top court’s decision.      

“I would also direct the Crown to engage in time-bound and honourable negotiation with the Superior plaintiffs about compensation for past breaches of the augmentation clause,” Jamal wrote in the decision. “If the Crown and the Superior plaintiffs cannot arrive at a negotiated settlement, the Crown will be required, within six months of the release of these reasons, to exercise its discretion and determine an amount to compensate the Superior plaintiffs for past breaches.”

The Supreme Court ruling that the Robinson treaties contain enforceable treaty obligations under the Constitution effectively sets the table for discussions surrounding increases to treaty annuities going forward. 

Robinson Huron lead legal counsel David Nahwegahbow told reporters following Monday’s news conference that Canada and Ontario have “got to acknowledge that criticism” in the Supreme Court’s ruling that both Crowns failed to fulfill their obligations under the treaties, and work with treaty partners on an equal, nation-to-nation basis in the future.  

“Because we’ve reached an agreement on past compensation, we are ready to move immediately to negotiating a framework, a process, for the go-forward aspect of implementing this treaty,” he said. 

Nahwegahbow also highlighted a need to renew the “council fire” where the parties would engage in a deliberative process in order to come to an agreement.

“I think a return to that council fire, whatever the structure is, is going to be the first step,” he said. “That process, that structure — that council fire — will be the entity or the forum which is going to be driven not just by common law. It’s going to be driven by Anishinaabe law, and strong Anishinaabe participation from all of the First Nations.”

Peltier told reporters that more meetings between the treaty partners need to occur, noting that all parties have only engaged in dialogue together on two separate occasions since December of 2022.  

“We’re going to continue to request that that regular contact — that regular dialogue, that regular coming together — between the Crown representatives and the 21 First Nation leaders is something that is not only done on an annual basis, but on a regular basis, without having to be compelled to be there,” Peltier said.