Canada owes First Nations money for violating Robinson treaties, court rules

The decision could have significant implications for how revenues from resources, such as mining and forestry, are shared with the country’s Indigenous communities and for the role the courts play in reconciliation between First Nations and the Canadian government.

The negotiated settlement is expected to be substantial. During the trial, Canada argued that the beneficiaries were owed a maximum of about 1.8 billion Canadian dollars, or about $1.3 billion. But Nobel Prize-winning economist Joseph Stiglitz — who was called to testify by the First Nations groups — told the court that his economic model showed the amount was more than $90 billion.

In his decision, The court criticized Canada’s “long-standing and flagrant” violation of the treaties — made in 1850, more than a decade before Canada entered into confederation — between the Crown and the Anishinaabe of Lake Huron and Lake Superior in what is now Northern Ontario. The Crown was represented by the Attorney General of Ontario in the case, and the Attorney General of Canada was also a defendant in the claim.

“For over a century, the Crown has demonstrated itself to be a patently unreliable and untrustworthy treaty partner,” wrote Justice Mahmud Jamal. “… It has lost the moral authority to simply say ‘trust us.’”

At the time, the Anishinaabe and the Crown agreed that the Anishinaabe would cede their territories in exchange for, among other things, an annual payment. A new clause in that agreement said that if the land in the future yielded an amount that would allow the government to increase the annuity “without incurring a loss,” then it “shall be increased from time to time.”

Jamal called for a “statement setting out the rights and obligations of the contracting parties, including the Crown’s obligations under the Augmentation Clause,” alongside the negotiated settlement. If a settlement cannot be reached between the parties, he said, the Crown should “exercise its discretion” to determine an appropriate amount of compensation.

The federal government agreed that some compensation was due, but Ontario argued it had no legal obligation to do so, in part because it had suffered billions in losses building the infrastructure needed for the development.

The two agreements, commonly known as the Robinson Treaties, were not being enforced, argued the descendants of the First Nations who signed the treaties.

“Since then, billions of dollars have been generated from the treaty areas through forestry, mining and other resource development,” First Peoples Law, which was involved in the case, said in a statement last year.

“At the same time, Anishinaabe treaty beneficiaries continue to receive the same annual payment of $4 per person as they did in 1875.”

The court ruled that paying a “shocking” $4 a year to the treaty’s beneficiaries, with no increase since 1875, “can only be described as a travesty” of the intended promise in the document.

It also commented on how historic treaties should be interpreted, emphasizing that courts “must consider both the words of a treaty and its historical and cultural context” and take into account how the agreement would have been understood by each party at the time. The Canadian government recognizes 70 historic treaties between the Crown and 364 First Nations signed between 1701 and 1923.

Harley Schachter, a lawyer for Red Rock First Nation and Whitesand First Nation, celebrated the ruling in a press release, saying, “The Supreme Court ruled today that governments are not above the law,” he said. “It is a sacred relationship between First Nations and the Crown. It is a partnership, not a dictatorship.”

The Robinson Huron Treaty Litigation Fund, which represents another group of Huron plaintiffs who last year reached a $10 billion Canadian settlement with the federal and provincial governments, said it was “very pleased with the decision.” The ruling confirmed its position, it added, including that “the Treaty contains a sacred promise to share the wealth of the area in accordance with Anishinaabe legal principles of reciprocity, respect, responsibility and renewal.”

Amanda Coletta contributed to this report.