Our Annuities Case: RHT Litigation Fund Update

By Laura Sharp, Associate, Nahwegahbow Corbiere

Overview

The Robinson Huron Treaty (RHT) was signed on September 9, 1850. The Treaty promises annuities payments to beneficiaries of the Treaty. The Treaty also contains an ‘augmentation clause’—a provision that states the annuities would be increased if the Crown could do so without incurring a loss. The annuity payments were increased from approximately $1.60 per person to $4.00 in 1874. The annuity payments have not been increased since.

In 2014, the Robinson Huron Treaty Anishinaabe sued the governments of Canada and Ontario for breach of Treaty, breach of the honour of the Crown and breach of fiduciary duty for the Crown’s failure to increase the annuity. The Robinson Huon Treaty case is being heard alongside a similar case brought by two First Nations under the Robinson Superior Treaty (RST), which contains the same augmentation clause.

Due to the many complex issues and volume of evidence involved, the trial was divided into three separate stages to be argued before Justice Patricia Hennessy in order to make the process more manageable. Stage One was focused on whether the First Nation Treaty parties have a collective right to have increased, from time to time, the promised annuity payment if the net Crown resource revenues from the territory permit the Crown to do so without incurring loss. In December 2018, the decision was released ruling in favour of the First Nation plaintiffs. Stage Two of the trial considered Crown defences, including Crown immunity and limitations. In June 2020, the First Nation plaintiffs again received a favourable ruling.

Ontario has appealed both the Stage One and Stage Two decisions to the Ontario Court of Appeal. These appeals were heard in the Spring of 2021. A decision on the appeals is expected sometime in late 2021. The Ziigwan (Spring) 2022 issue of E-Wiindamaagejig: The Robinson Huron Treaty Times will contain an update on the appeal decisions.

A more fulsome discussion of the augmentation clause, as well as the Stage One and Two trials and appeals can also be found in the Ziigwan (Spring) 2021 issue of E-Wiindamaagejig: The Robinson Huron Treaty Times.

Looking Forward—Stage Three Trial

The legal team is currently preparing for Stage Three of the trial, which will begin in the Fall of 2022 and is expected to take several months. The last stage of the trial will consider the remaining issues. One key issue is the amount of compensation owed to the Plaintiffs (the RHT and RST First Nations). Two questions must be answered: (1) What are the net Crown resource revenues from the Treaty territory, and (2) what is a fair share of that should be paid to RHT.

Another key issue is Crown allocation—whether Canada, Ontario, or both are liable to pay for the augmented annuity. Thus far, the Crowns have failed to resolve the allocation issue amongst themselves. We believe their failure to resolve this issue as an impediment to negotiations to settle the claim. Expert reports are in the process of being prepared for the Stage Three trial. One expert report will consider actual net Crown resource revenues: this will be a dollar amount of what the Crown approximately or actually collected. Another expert report will consider the value of the resources in the RHT Territory and the value of the territory. This is a counter analysis regarding what the Crown could have collected in resource revenues, rather than what they actually did collect in resource revenues. This report is necessary because the Crown essentially gave away resources from the Treaty territory in order to encourage resource development and collect both business and personal income tax revenues. Evidence will also be led on the Anishinaabe perspective of ‘fair share’.

Canada’s Negotiation Mandate

In concert with our preparation for Stage Three of the Annuities Claim trial, the Robinson Huron Treaty Litigation Fund, primarily through spokespersons Ogimaa Dean Sayers and Ogimaa Duke Peltier, have been consistently requesting the Crowns settle the claim through negotiations rather than litigation. On August 13, 2021, the Robinson Huron Treaty Litigation Fund received a letter from Minister Carolyn Bennett indicating Canada is ready to negotiate, but states that Ontario’s involvement is desired:

“I am writing today to advise that our mandating process is complete and Canada is prepared to enter into negotiations with the Robinson-Huron and Robinson-Superior First Nations in order to resolve the litigation out of court. Given the

Province of Ontario’s shared responsibility in implementing the Robinson Treaties of 1850, it is important to note that from Canada’s perspective, the Province of Ontario will need to be a party to the negotiations and settlement.” If Ontario decides to negotiate, there is a possibility that the Annuities Claim will be settled through negotiation rather than proceeding to the Stage Three trial. The Robinson Huron Treaty Litigation Fund has devised a communications strategy aimed at telling Ontario it is time for them to issue a mandate to negotiate.

Enforcement of the Stage One and Stage Two Decisions

The RHT First Nations have received two favourable decisions. Neither Canada nor Ontario have sought to stay the Stage One or Two decisions and they are binding on the Crown. While quantification of past compensation for failure to implement the Treaty promise is the subject of Stage Three, Canada and Ontario have an obligation to implement the augmentation promise on a go-forward basis. There is no reasonable basis for the Crown’s failure to implement the augmentation promise going forward. The RHT Ogimaak have signed a Petition and Memorial to the Governor General of Canada, Her Excellency the Right Honourable Mary Simon, and the Lieutenant Governor of Ontario, The Honourable Elizabeth Dowdeswell calling on the Crown to honourably and in good faith engage in a process to carry out, implement and fulfill the judgments and declarations of the Ontario Superior Court of Justice. You can read the full Petition and Memorial on pages 14-21 of this issue of the E-Wiindamaagejig: The Robinson Huron Treaty Times.