Despite Supreme Court of Canada ruling, Robinson Treaties advocate hopeful for negotiated settlement

Last week the Supreme Court of Canada ruled that the Ontario government could move forward on its appeal of the Robinson Huron-Superior Treaty annuity case.

The Robinson Treaties, signed in 1850, provided for the augmentation of the perpetual annuity if revenues generated in the territory allowed the Crown to increase the payment without incurring a loss. The annuity was augmented once in 1875 to one pound (or four dollars equivalent) per person. It has not been augmented since.

The initial trial concluded that the Crown had a mandatory and reviewable obligation to increase the Treaties’ annuities when economic circumstances so warranted and that it should reflect a fair share of the value of the net Crown resource-based revenues generated from the territory.

The Ontario Court of Appeal upheld the trial decision.

However, on June 23 the Supreme Court said Ontario can present its argument at the highest court in the country.

That decision is disappointing but not unexpected, says Mike Restoule, chair of the Robinson-Huron Treaty Litigation Fund (RHTLF), which represents the 21 Anishinabek Nations that began legal action against Ontario and Canada in 2014.

“Ontario was the one who... sent an application to the Supreme Court for leave to appeal,” said Restoule. “But after awhile Canada wrote to the Supreme Court to say they were willing to participate in an appeal. I guess once the two governments got together on an application to appeal, I guess the Supreme Court decided it was … proper on their part to hear the case.”

Although Canada has not appealed any decisions in the litigation, court records indicate that the Attorney General of Canada filed a form letter Feb. 21 in response to Ontario’s application for leave to appeal.

“Canada’s substantive positions in response to Ontario’s appeal will be set out in documents to be filed on a timeline to be set by the Court,” said Randy Legault-Rankin, spokesperson for Crown-Indigenous Relations and Northern Affairs in an email to Windspeaker.com.

“Canada agreed with Ontario that the case met the criteria for granting leave. In that sense they supported Ontario’s application,” said Catherine J. Boies Parker, Q.C., legal counsel for RHTLF.

The criterion for granting leave is whether the case raises issues of public and national importance, she added.

Restoule says he doesn’t understand how this case is of national interest as the Robinson Treaties are unique in Canada. They are the only treaties with an augmentation clause that’s connected with an annuity.

“We don’t yet know what position Canada will be taking on the appeal itself. Hopefully they will support (the lower court’s) decision, since they have not appealed it,” said Boies Parker.

“Canada continues to believe that negotiations remain the best forum for addressing outstanding issues. We look forward to continuing to work with Ontario and the First Nations at the negotiation table to try to find common ground for resolving this litigation outside of the courts,” said Legault-Rankin.

The majority decision of the Court of Appeal directed the parties to negotiate a modern agreement for the implementation of the Treaty.

Restoule is hopeful that the Ontario government will continue the work it began prior to the provincial election. The parties met twice on the issue before talks ended to go to the polls.

Also prior to the election, Premier Doug Ford met with Ontario chiefs in a virtual question-and-answer session. In response to a question from Wikwemikong First Nation Chief Duke Peltier, Ford said he was “committed to get the Robinson Huron Treaty done. It’s fallen on all our laps…After probably more than 150 years of government-after-government-after-government ignoring it, I’m committed to getting it done. I think we’re very close without getting into details.”

Ford and his Conservative government were returned to office in the election.

“We’re trying to get out of the court action…by requesting that the parties come together in negotiations to settle out of court because our feeling is that that’s the only way we can get reconciliation,” said Restoule.

The litigation, which has been broken into three stages, was scheduled to proceed with stage three in October. That stage is focused on determining the value of the compensation owed and the respective liabilities of Canada and Ontario.

At issue, says Restoule, is that resource revenue is collected by the province, but Canada pays the annuity.

Stage three “was to solve that argument: If you’re going to collect the money, you should pay the annuity too,” he said.

Now Restoule is uncertain as to whether stage three will proceed as the same legal team will be involved in preparing for the Supreme Court argument.

Even with a potential hearing at the Supreme Court—and it is unknown when that will happen—Restoule says he sees the light at the end of the tunnel.

“I’m very hopeful. I’m hoping that either through negotiations or through stage three ruling or Supreme Court of Canada ruling that we will get a just settlement, someway, somehow,” he said.

Restoule has been involved in this battle for 30 years. He was appointed by the chief to represent the Nipissing First Nation when he was elected to the council in 1992. He says First Nations holding chief and council elections every two to four years has caused challenges.

“The leadership changes and when the leadership changes that’s when things seem to bog down and you have to start up again, so that was kind of the ebb and flow that we experienced,” he said.

But the work stabilized in 2010 when the chiefs created the RHTLF and Restoule moved on to head it. Four years later, the case was filed in court. The actual hearing didn’t begin until 2017.

“I’m extremely tired but, you know, I don’t want to stop doing it because I have an interest in it, first of all. It’s part of me now. It’s part of who I am,” said Restoule.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.