“Though the case is complicated, the treaty itself is not,” said Chief Dean Sayers in a press briefing on April 12, ahead of Stage One in the Robinson Huron Treaty annuities appeal in 2021.
“It’s clear, it’s straightforward,” said Sayers, who serves as chief of Batchewana First Nation. “Canada and Ontario need to honour the obligations set out in the escalator clause within the Robinson-Huron Treaty of 1850.”
And that is just what happened on Nov. 10, when the Ontario Court of Appeal released its decision in the Restoule v. Canada (Attorney General) & Ontario (Attorney General) case, deciding in favour of the 21 signatories of the Robinson Huron Treaty of 1850, and affirming a majority of the trial decisions that the Ontario government had been appealing.
It was a move that Chief Dean Sayers of signatory nation Batchewana First Nation described as an “incredible, incredible moment in the history of our lands here in Canada, on Turtle Island.”
The Robinson-Huron Treaty of 1850 Annuities Statement of Claim, which was launched by the RHTLF in 2014, involves a claim for resource revenues. In 1850, the settlers of the area were driving economic growth on land that did not belong to them, encroaching on traditional Anishinabek lands.
Working within a framework that they understood, the sharing of resources for common good, the First Nations of much of Northeastern Ontario entered into a treaty with the Crown, as represented by William Benjamin Robinson, a former mine manager who was named treaty commissioner.
Under the treaty, the Crown promised to pay a perpetual annuity of £600 ($2,400), which in 1850 worked out to approximately $1.60 per person. But Robinson provided an additional incentive for the Anishnawbek communities to sign the treaty.
It is called an ‘augmentation clause’ and it reads “[...] should the Territory hereby ceded [...] at any future period produce such an amount 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.”
Basically, if further wealth was generated in the territory, the Crown is obligated to increase the annuity “to such further sums as Her Majesty may graciously be pleased to order.”
For instance, picture yourself as a farmer with a field. You grow some corn for yourself, to feed your family, but still have a large parcel of land unused. A new neighbour asks if perhaps they can plant in the soil you have worked and cared for, in return for a portion of the money they make selling the corn they grow. You’re intrigued, but unsure. So they sweeten the pot: the more money they make selling corn grown on your land, the more money they’ll give to you.
But the crux of the issue, and what Justice Patricia Hennessy specifically stated in her decisions, is that the Crown, or your neighbour to continue the analogy, failed to live up to their end of the bargain.
Not only was the annuity not raised the first year after the opening of mines everywhere in 1851, but the annuity was not increased until 1874, despite the economic growth on the land.
In 1874, the annuity amount was raised from $1.60 per person to $4 per person.
There has never been another increase. In 2021, that annuity is a cheque for $4 for each person.
And so the Robinson Huron Treaty Litigation Fund, on behalf of the 21 Anishinabek nation treaty signatories, stated their claim. The decisions, in what the RHTLF refers to as Stage 1 and Stage 2, found Justice Hennessy ruling in favour of the First Nations, asserting that Canada and Ontario have a mandatory obligation to review the annuity amount.
While the provincial government proceeded with appeal, the federal government declined to pursue it; in November, the provincial government was directed to settle the case.
The RHTLF made it clear that they would be looking at revenue sharing, not taking from the taxpayer purse.
In May, just after the closing arguments in Stage One of the appeals process, Mike Restoule, chair of the RHTLF told Sudbury.com that however that revenue sharing looks, from years of land and resource profits, it will not only improve the lives of First Nations people and communities, but the communities surrounding them in Northern Ontario.
“If the claim is settled in favor of the Anishinabek and they gain money from this, the money will be spent in the same areas where they live,” said Restoule. “The Sagamok Anishinabek are right next door to Massey, Ontario. Guess where the money is going to end up?”
He noted not only consumer spending, but community infrastructure improvements, as well. “First Nations have homes to build. They have roads to build. Where are they going to get their supplies for that? They're probably going to get them from Massey and Sudbury.”
He sums it up fairly succinctly. “We're not going to Mexico to go and spend this money when we get it. We spend it where we live.”
At the press conference announcing the decision in the appeals case, Restoule spoke to the group that included many of the chiefs of the signatory nations.
“We know that there were trillions and trillions of dollars earned by settlers in our territory, and yet, our communities are among the poorest; it is not right, and that's why we brought this case to the courts,” said Restoule. “We have won every step of our process to this point, and if it's litigation that Ontario wants, we are prepared to go there. But we are a peace-loving people. We prefer to sit down and talk about our relationship; the relationship that is so important in this land, for us to live together in peace and harmony.”
Should the province not wish to settle in the meantime, stage three of the proceedings will include the determination of the value of the compensation and the proportion of liability assigned to the federal and provincial governments. Stage three is set to begin in the spring of 2022.