The highest court in the country has delivered a unanimous ruling on the Robinson Huron and Robinson Superior treaties, determining that the Crown “dishonourably breached” a key part of these 1850 agreements.
In a decision delivered Friday morning, the Supreme Court of Canada stated that the Crown failed to “diligently fulfill” the augmentation clause of the original treaties, which entitled members of the Huron and Superior First Nations to annuities that were supposed to increase over time.
Because these annuities haven’t increased since 1875, Justice Mahmud Jamal, who penned Friday’s decision, wrote that the Crown is “obliged” to determine an amount of “honourable compensation” to the Superior plaintiffs.
“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,” Jamal wrote.
Huron plaintiffs have already finalized a $10-billion settlement through the provincial and federal governments, with these payments expected to roll out this summer.
However, members of the Robinson Huron Treaty Litigation Fund were still “very happy” with Friday’s decision, believing that it “vindicates” the essential position they’ve taken throughout this lengthy legal process.
Chief Angus Toulouse, of Sagamok Anishnawbek First Nation, also told The Sault Star that while the $10-billion Huron settlement has been finalized, there’s still more to do following Friday’s ruling.
“We’re not done!” Toulouse said on Friday. “This is just an agreement on the past and we still have to negotiate what the annuity is going forward.”
Former Batchewana First Nation chief Dean Sayers, one of the original plaintiffs in this case, was similarly optimistic about the future, saying that years of fighting this issue in court will benefit the Huron Anishinaabe as they pursue other Indigenous reconciliation projects.
“We know we can be educated, we know we can do the research,” Sayers said on Friday.
“We know what extraction looks like, we know what expenditures and revenues look like now and we know what’s a fair share. I think it’s going to be a different discussion and negotiation as we move forward.”
The Robinson Huron and Superior treaties were originally signed in September 1850, with the combined agreements encompassing over 100,000 square kilometres of territory that includes modern day Thunder Bay, North Bay, Sault Ste. Marie and Sudbury.
In exchange for use of this land, which would later lead to the extraction of valuable resources, the Crown promised to pay a perpetual annuity to these First Nations that was supposed to increase subject to certain conditions.
However, the annuity has not increased since 1875 when it was set at $4 per person.
In Friday’s ruling, Jamal describes this $4 cap as “shocking” and “a mockery” of the Crown’s original promise.
The nature of the annuity, and the conditions under which increases are to be made, finally made its way to the courts over 125 years after the rates were frozen, with the Superior and Huron plaintiffs filing claims in 2001 and 2014, respectively.
The trial that followed was split into three stages because of its complexity.
Stage one focused on the interpretation of the treaties, while stage two considered the Crown’s defence of immunity and limitations.
Stage three, which can finally proceed with the Superior plaintiffs thanks to Friday’s decision, will determine remaining issues such as damages and the allocation of liability between the federal and provincial governments.
In 2018, Justice Patricia Hennessy of the Ontario Superior Court of Justice determined that, in terms of stage one, the Crown has a mandatory and reviewable obligation to increase the treaties’ annuities.
For stage two, Hennessy ruled that Crown immunity and provincial limitations legislation did not bar the plaintiffs’ claim.
The Ontario government then appealed these decisions through the Ontario Court of Appeal, which rejected the majority of the province’s arguments in a 2021 ruling.
The province then submitted an appeal to the Supreme Court of Canada, with this case being heard throughout Nov. 7-8, 2023.
While Friday’s ruling mostly lined up with previous decisions, the Supreme Court did diverge from the lower courts when it came to the issue of damages.
Even though Hennessy argued that the Crown had a fiduciary obligation to properly implement the augmentation clause, the Supreme Court ruled that it is ultimately up to the Crown to act “honourably” when it came to settling the annuities issue.
“Negotiation and agreement outside the courts have better potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown,” Jamal wrote. “This approach would also respect the proper role of the courts.”
The Ontario government previously argued that increases to the annuity should be at the discretion of the Crown and are not for the court to rule on.
While the Supreme Court has largely come to the same conclusion, Jamal wrote that the Crown’s discretion can still be subject to review.
“If the courts find that the Crown’s process or its ultimate determination was not honourable, they may consider the appropriate remedy, including whether to remand the issue to the Crown for redetermination or set the amount to be paid by the Crown.”
The Superior plaintiffs in this case have claimed damages totaling roughly $126 billion.
Although the number of current beneficiaries has yet to be determined definitively, evidence at trial suggested that, as of September 2017, there were 29,926 Huron beneficiaries and 13,546 Superior beneficiaries, living both on- and off-reserve.
