With concluding arguments on April 28, the legal team behind the Robinson Huron Treaty Litigation Fund (RHTLF) say are pleased with the way the Stage One appeal went, that they are preparing for Stage Two and they are keenly aware that the case will most likely come down to a settlement.
The Stage One appeal, brought forth by the Government of Ontario, was heard by a five-member panel of the Ontario Court of Appeals, chaired by Chief Justice George Strathy.
Mike Restoule, chair of the RHTLF, said both he and the group were pleased with their arguments.
“Our legal team gave the Court of Appeal an idea of what was considered at the Stage One of the trial,” said Restoule. “The judge heard evidence of the Anishinabek understanding of the treaty, especially the augmentation clause and I think that was good for the Court of Appeal to hear.”
While the Federal Government submitted statements indicating that they agree with and support the original decision by Justice Patricia Hennessey, the provincial government wished to challenge the original decision, and did so with the beginning of the Stage One appeal on April 13.
Restoule said he is confident the Chief Justice will see through the province’s Stage One appeal.
“Ontario's appeal is just based on two criteria,” said Restoule. “I don't think those criteria are going to be able to overturn the judge's ruling. Now, that's my own personal opinion, but as the chair of the trust, I think I can safely say that I think the Court of Appeal will agree with Justice Hennessey’s ruling and reject the appeal.”
Stage Two of the claim, which is set to begin in June, will be the appeal of Hennessy’s decision regarding any limitations to the plaintiffs’ claims. The original ruling found that the claims are not barred by Ontario’s limitations legislation and that Ontario does not benefit from the Doctrine of Crown Immunity.
The ‘stages’ of appeals are in relation to the Annuities Statement of Claim, filed by the RHTLF on behalf of the Anishinabek signatories to the Robinson Huron Treaty of 1850 in regards to the augmentation clause of the treaty. That claim resulted in the landmark 2018 decision by Chief Justice Patricia Hennessey (linked earlier).
The ruling held that signatory First Nations to the 1850 treaty were owed back annuities, after the Crown failed to live up to the terms of the 171-year-old Robinson Huron Treaty of 1850.
These annuities would not be coming from the “taxpayer pocket,” Restoule says, but rather, “We're asking for a share of the revenue that the government gets from the land. It's not a share of the taxation that Ontarians pay to the government. It's a share of the revenue that the government gets from the land.”
Additionally, Restoule said that if Canada and Ontario had adhered to the treaty “the way it was intended to work, we wouldn't be in this predicament today.”
The 1850 Treaty Augmentation Clause reads: “[...] should the Territory hereby ceded [...] at any future period produce such an amount as will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them, then and in that case the same shall be augmented from time to time.”
Under the treaty, the Crown promised to pay a perpetual annuity of £600 ($2,400), which in 1850 worked out to approximately $1.60 per person. But there was an additional incentive for the Anishinabek communities to sign the treaty, which forms the basis of the annuities claim.
In 1850, the settlers of the area were driving economic growth on land that did not belong to them, encroaching on traditional lands. The augmentation clause was one that ensured any increase in the revenue from those lands would be evenly distributed to the treaty signatories.
With any further wealth generated in the territory, the Crown is obligated under the treaty to increase the annuity “to such further sums as Her Majesty may graciously be pleased to order.”
In the initial 2014 claim filing, it was clear Hennessey agreed with the RHTLF, saying “The Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant.”
But the provincial government did not. Hence, the appeals.
In a statement detailing the outcomes of the Stage One hearings, Chief Dean Sayers of Batchewana First Nation said he would have preferred negotiation to litigation, but the courts were the only option open to them.
“As a people, this colonial court process is not our preferred resolution to a disagreement about treaty implementation,” he said. “However, in the absence of a negotiating table, we have had to utilize the court system to enforce Crown promises and legal obligations.”
Because of the need to use a colonial system to discuss their grievances, Restoule said the end result will most likely be a settlement.
“In the end, we're going to have to settle this out in negotiations. Whether it comes from the Court of Appeal, whether it comes from the stage three of the trial, whether it comes from the Supreme Court of Canada, the court is going to say ‘you should settle this’.”
But Restoule adds that however the revenue sharing looks, it will not only improve the lives of First Nations people and communities, but the communities surrounding them in Northern Ontario.
“If the claim is settled in favor of the Anishinabek and they gain money from this, the money will be spent in the same areas where they live,” said Restoule. “The Sagamok Anishinabek are right next door to Massey, Ontario. Guess where the money is going to end up?”
He notes not only consumer spending, but community infrastructure improvements, as well. “First Nations have homes to build. They have roads to build. Where are they going to get their supplies for that? They're probably going to get them from Massey and Sudbury.”
He sums it up fairly succinctly. “We're not going to Mexico to go and spend this money when we get it. We spend it where we live.”
Find out more about the case at the Robinson-Huron Treaty Litigation Fund website.