Province, First Nations returning to court

Robinson-Huron Treaty First Nations suing over development annuities

Mike Restoule, foreground, chair of the Robinson-Huron Treaty Trust, participates in the Robinson-Huron Treaty post-decision panel at the University of Sudbury in February. John Lappa/Postmedia Network

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Now that the province has failed to re-open a historic legal case, the second phase of a lawsuit filed by Robinson-Huron Treaty First Nations is set to begin Tuesday in Sudbury.

The hearings will help sort out how much and who pays annuities owed to the First Nations under the 1850 treaty. Nine days of court time are booked.

The lengthy first phase of the trial was completed in Greater Sudbury in June 2018, with Superior Court Justice Patricia Hennessy reserving her decision.

“I find that the Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant,” Hennessy said in her ruling released in December. “The economic circumstances will trigger an increase to the annuities if the net Crown resource-based revenues permit the Crown to increase the annuities without incurring a loss.

“The principle of honour of the Crown and the doctrine of fiduciary duty impose on the Crown the obligation to diligently implement the Treaties’ promise to achieve their purpose (i.e. of reflecting the value of the territories in the annuities) and other related justiciable duties.”

Hennessy also said in her decision that the various parties involved in the case should sit down and hold discussions.

“The Anishnaabe and the Crown have an opportunity to determine what role those historic promises will play in shaping their modern treaty relationship,” she said. “The pressures they faced in 1850 will continue to challenge them.

“However, in 1850 the Crown and the Anishnaabe shared a vision that the Anishnaabe and the settler society could continue to co-exist in a mutually respectful and beneficial relationship going into the future. Today, we arrive at that point in the relationship again. It is therefore incumbent on the parties to renew their treaty relationship now and in the future.”

Last week, Hennessy dismissed a motion to admit fresh evidence and re-open the first phase of the trial. The motion, filed by the province this summer, advised that it had found a significant new piece of evidence — specifically the Fort William Jesuit Mission Diary and, in particular, the Sept. 30, 1850, entry. The province argued had that evidence been before the court in the first phase, it would likely have changed the trial’s result.

The province sought to re-open the trial, admit the fresh evidence and also call expert opinion on the evidence. Written arguments from the various parties were submitted to Hennessy.

“To re-open the trial for a marginally significant piece of evidence would be a great injustice to the plaintiffs and an unwarranted demand on judicial reserves,” Hennessy ruled. “When considered in the context of this entire case and the body of evidence which was put before the court in the Stage One trial, this entry does not meet the threshold two-pronged test. It does not alter, contradict or shed new light on what was already before the court. It would not probably have changed the result. Its exclusion would not be a prejudice to Ontario nor a miscarriage of justice. It could have been discovered with reasonable diligence. It would not be in the ‘interests of justice’ to admit this evidence.

“I also note that this entry does not purport to have any impact on the Huron Anishinaabeg who were not present in Fort William during Mackenzie’s visit in the Superior Territory. This fresh evidence could not stand for or support any understanding on their part.”

The lawsuit was filed by Mike Restoule, a Nipissing First Nation member, on behalf of the 21 First Nations in the Robinson-Huron Treaty.

Restoule said in an interview the trial’s second phase will now deal with three issues: the legal defence the Crown had presented during the trial, including the doctrine of laches — the claimants waited far too long to take legal action; limitations or how far back annuity improvements should go; and who is responsible for increasing the annuities — Ontario or Canada?

“Limitations generally say you can only go back a number of years to claim losses,” said Restoule of the second issue. “In this case, because it’s a treaty, we are saying the Crown hasn’t come forward (to increase annuities) almost right from the start.”

As for the issue of who is responsible for increasing the annuities, Restoule said “from our standpoint, we don’t care. It’s the Crown.”

Restoule said that in the 1890s, Ontario, not long after Confederation, went to court with the federal government over who should be paying out the annuities. Ontario won, he said, successfully arguing it was the federal government that negotiated the treaties with First Nations in the first place and it was therefore not Ontario’s responsibility.

The Robinson-Huron Treaty First Nations lawsuit, which was launched in September 2014, was heard throughout Northern Ontario, including in Sudbury.

The lawsuit, which involved about a dozen lawyers, was heard in conjunction with another case involving the Robinson-Superior Treaty.

The thrust of the lawsuit concerned the 1850 Robinson-Huron Treaty, specifically annuity augmentation. The 21 Robinson-Huron chiefs argued that the annual $4 annuity paid by the Crown per treaty member had not changed since 1874, 24 years after the treaty was signed, despite a commitment that the annuity was to increase as revenues generated on their territories increased. Originally, the annuity was $1.60 per treaty member.

The chiefs’ statement of claim asked that the Crown deal “liberally and justly” with their claim and engage in negotiations to settle it.

Restoule said in an interview in the fall of 2017 that if the lawsuit succeeded, the 21 First Nations involved – which now have about 30,000 members in total (compared to about 2,662 when the treaty was signed) – would be seeking retroactive money.

In December of 2018, Restoule re-affirmed that is what the 21 First Nations will be pushing for in a settlement.

As for how much money the court win could mean, Restoule said he could not guess how much could be paid out or what the new annuity level could end up becoming.

When asked if that payout could end up being millions of dollars, Restoule said “probably not.”

At the start of final submissions back on June 4, 2018, some 40-plus Anishnawbek elders and members from across the North Bay, Greater Sudbury, Manitoulin Island and northshore areas attended. Grades 7 and 8 students from Sagamok First Nation were also bussed in to attend the morning portion.

“We say the meaning of the augmentation clause is fairly simple,” said Joseph Arvay, a lawyer representing the 21 First Nations in the northeast, told the court. “We say the Crown couldn’t pay the going rate when it assessed the value of the land and it was for that reason, the Anishnawbek accepted an annuity level that was 20 per cent of what other Indigenous people got in treaties. The augmentation clause provided that the Crown would increase the annuity if the revenues increased from the territory if the Crown was able to do so without incurring loss …

“The Crown seems to hold, Canada and Ontario, reserve for itself, an absolute authority in any circumstances for the purpose of the augmentation clause, whether to share in the revenues of the territory … The Crown had an absolute discretion whether to increase the annuity or not … even if the land generated great wealth,  the courts couldn’t do anything about that.”

Arvay said that in treaty talks in 1849 and 1850, Anishnawbek chiefs Shingwaukonse of Garden River and Nebenaigoching of Batchawana had a goal of parity with the annual $10 per person per year annuity being paid out to members of other First Nations to the south in their treaties, but were aware the fledgling Upper Canadian government was cash strapped.

The lands to the south also were rich agricultural areas, noted Arvay, while the land in the northeast was viewed as sterile and barren.

Consequently, he said, the northeastern Ontario chiefs were willing to sign a treaty opening up their lands to development with the to-be-reviewed annuity clause being a fail-safe measure that would allow their peoples to share in the economic prosperity of their lands’ development in the future.

When the Robinson-Huron Treaty was signed in 1850, the trial heard, the bands were given a one-time payment of 2,160 British pounds distributed amongst themselves, and an annual payment of 600 pounds to each band. But that left Crown negotiator William Robinson with about $20,000 he had to work with to invest at six per cent per year, the money produced to be paid out in annual annuities.

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