Crown must settle with First Nations for breaching Robinson treaties: Supreme Court

The Crown made a mockery of its treaty promise to the Anishinaabe in Ontario by freezing annual payments to First Nations for 150 years, and it now must make things right, the Supreme Court of Canada has ruled.

The top court issued a unanimous decision Friday in the case of the Robinson Treaties, ordering the Canadian and Ontario governments to negotiate a settlement with one group of First Nations plaintiffs within six months.

The two treaties were signed in 1850, ceding more than 100,000 square kilometres of land in the upper Great Lakes region to the Crown in return for annual payments to the Anishinaabe of Lake Huron and of Lake Superior. 

The agreements said the payments should increase over time as resources were developed on the land, so long as the Crown did not incur a loss. Chiefs were able to negotiate an increase to $4 per person in 1875. 

“Today, in what can only be described as a mockery of the Crown’s treaty promise to the Anishinaabe of the upper Great Lakes, the annuities are distributed to individual treaty beneficiaries by giving them $4 each,” Supreme Court Justice Mahmud Jamal wrote in the decision. 

The Supreme Court said the Crown had a mandatory obligation to raise that amount when the economic circumstances warranted, and failure to do so undermined the spirit and substance of the treaties. 

“For almost a century and a half, the Anishinaabe have been left with an empty shell of a treaty promise,” Jamal wrote. 

The decision noted that the Crown has derived “enormous economic benefit” from the land through mining and other activities over the years, while First Nations communities have suffered with inadequate housing and boil water advisories. 

Lawyers for the plaintiffs said people have been living in abject poverty. 

Representatives from Anishinaabe communities who came to the Supreme Court building in Ottawa to hear the decision hugged and wiped away tears when they heard the result.

“I’m happy that today came after 175 years. You know, it’s a long time coming, we have suffered all those years, no economic benefits to our community, and it’s been hard,” said Whitesand First Nation Chief Lawrence Wanakamik.

“We’ll have a better community from this point on.”

The Crown must increase the annual payments, but the decision does not say by how much. 

Instead, the ruling sets a path forward for one of the two plaintiff groups that has not already reached a settlement with the governments. 

The beneficiaries of the Robinson-Huron Treaty finalized a deal in February that will see the governments of Canada and Ontario pay $5 billion each to make up for failing to increase the payments since 1875. The two sides are still in negotiations to determine how much the annual payments will be going forward. 

The Crown has been ordered to negotiate a settlement with the beneficiaries of the Robinson-Superior Treaty by Jan. 26 next year. 

If they cannot reach a deal in that time, the Crown must come up with a settlement amount and explain how it arrived at the figure. That would allow the plaintiffs to challenge the amount in court if they choose.

An extension to the negotiation period is possible only if the Robinson-Superior Treaty plaintiffs agree to it.

Jamal wrote that simply ordering the parties back to the negotiating table was not sufficient because it risked forcing the First Nations to rely on a “historically dishonourable” partner to restore the treaty relationship. 

Harley Schachter, the lawyer for the Red Rock and Whitesand First Nations, called the decision a victory for democracy and for all Canadians. 

“Twenty-five years ago when Red Rock and Whitesand took on this case, the governments said there was no obligation, there was no treaty right to an increased annuity, there was no right to share the wealth of the treaty territory,” he said. 

“Today, that is over.”

The initial claims in the case were filed in 2001 by the Robinson-Superior beneficiaries, and in 2014 by the Robinson-Huron beneficiaries. They were later combined.

The Ontario government tried to have the case thrown out because of the statute of limitations but the Supreme Court rejected that argument, ruling that treaty rights are constitutional and the statute does not apply.

Ontario also argued that it had suffered a net loss in developing the region over the years. The federal government, however, conceded it would owe a considerable amount. 

At the time the treaties were signed in 1850, there were 1,422 beneficiaries of the Robinson-Huron Treaty and 1,240 beneficiaries of the Robinson-Superior Treaty. 

It’s believed the Robinson-Huron Treaty beneficiaries now number around 30,000 people who belong to 22 First Nations communities, while there are an estimated 15,000 Robinson-Superior Treaty beneficiaries across as many as 12 First Nations.

Schachter said his clients believe they are owed more than the $10 billion the Robinson-Huron group agreed to, “and that maybe the Hurons are owed more than $10 billion as well.” The Superior group asked for more than $126 billion at trial.

Jamal wrote that the amount will be substantial. “The Anishinaabe signatories cannot now be short-changed by the Crown’s sticker shock, which is solely the result of the Crown’s own dishonourable neglect of its sacred treaty promises.”