Crown made a ‘mockery’ of 2 treaties with First Nations for 150 years, Supreme Court rules

For the past 150 years, the governments of Ontario and Canada have made a “mockery” of their treaty obligations to the Anishinaabe of the upper Great Lakes, the Supreme Court of Canada ruled Friday.

In a unanimous decision, the top court said the ongoing failure to increase the annual per-head resource extraction revenues since 1875 for the residents of two First Nations groups has undermined the honour of the Crown. 

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

“It is time for the parties to return to the council fire and rekindle the perpetual relationship that the Robinson treaties envision. Nothing less will demonstrate the Crown’s commitment to reconciliation.”

The ruling does not award a settlement to the Huron or Superior Anishinaabe First Nations, but sets out the obligations of the Crown to negotiate an increase to resource revenues retrospectively, and into the future. 

The case stretches back to 1850, when the Robinson-Huron and the Robinson-Superior treaties were signed between the Crown and the Anishinaabe of the upper Great Lakes. 

As a part of the agreement, the Huron and Superior ceded more than 100,000 square kilometres of territory encompassing Thunder Bay, North Bay, Sault Ste. Marie and Sudbury, in exchange for an annual payment in perpetuity.

Under the Robinson-Huron treaty, each First Nation member received $1.70 per head a year. Under the Robinson-Superior treaty, the rate was $1.60 per person. 

In 1875, that annual payment was increased to $4 per person, but since that time it had not increased. 

‘A mockery of the Crown’s treaty promise’

“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,” the ruling said. 

Over time, the number of on and off reserve Huron members increased from 1,422 to nearly 30,000. Superior members increased from 1,240 to more than 13,000 

As part of the 1850 agreement, the Anishinaabe were also entitled to continue hunting on the land.

“Although the Anishinaabe have upheld their end of the treaty bargain, the Crown has failed to do the same,” the ruling said. 

“Remedying this failure and restoring the honour of the Crown requires returning to the foundations of the treaty relationship between the Anishinaabe and the Crown.”

Watch |  Whitesand First Nation Chief says he’s ’emotional’ about SCC decision: 

Whitesand First Nation Chief says he’s ‘emotional’ about SCC decision

Whitesand First Nation Chief Lawrence Wanakamik speaks to reporters following the Supreme Court’s historic ruling on revenue-sharing agreements with Ontario and Canada.

At the centre of the dispute is the proper interpretation of the “augmentation clause” in the agreements. That clause says the Crown has the discretion to increase the annual payments from time to time, providing doing so does not result in a loss to the Crown. 

The Supreme Court ruled that because “treaties engage the honour of the Crown,” increasing the annual payments “must also be consistent with the honour of the Crown.”

The ruling says that while the treaty does not promise to pay a certain sum of money, “no party doubts that the Crown was able to increase the annuities beyond $4 per person without incurring loss, and that it should have exercised its discretion to do so.”

“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,” the ruling written by Justice Mahmud Jamal said. 

Going forward, the Ontario and federal governments must use that standard of honour when striking revenue-sharing agreements with the Huron and Superior Anishinaabe. Those agreements have yet to be struck. 

The state of the retrospective settlements

The Hurons came to a final settlement of $10 billion with the Ontario and federal governments last year for past breaches of the Robinson-Huron treaty. Ontario and the federal government have split that settlement obligation between them 50/50.

Friday’s ruling from the Supreme Court makes no orders with respect to the settlement agreement with the Hurons. 

The Superior Anishinaabe instead took their claim — seeking as much as $126 billion for past breaches — to Ontario Superior Court, which came to a ruling in September. 

Before that ruling could be released, the Supreme Court ordered it to be held in reserve pending the release of this decision. On Friday, the top court ordered that the settlement ruling remain unreleased for another six months.

The Friday decision by the top court ordered the Ontario and federal governments to use those six months to come to an agreement with the Superior Anishinaabe. 

“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 Friday ruling said. 

If that settlement is deemed inappropriate, it can be appealed to the courts.