A legal battle played out this month in a northern Ontario courtroom saw an alliance of First Nations say they are owed more than $100 billion for the state’s failure to comply. Crowning a 173-year-old treaty promise, while the federal and provincial governments claim they are either owed much less or nothing at all.
The case heard in Thunder Bay, Ontario, could have historic implications for First Nations representing about 15,000 Anishinaabe along the northern shores of Lake Superior and is being closely watched by legal observers.
At the center of the trial – which is now hearing final arguments – is what First Nations see as a broken promise in a treaty that resulted in a sentence of poverty for several generations while non-Indigenous communities prospered under the natural wealth of the territory.
“This case is about righting the wrongs and finally ensuring that the government adheres to existing treaties and that First Nations get what they are owed,” said Chief Marcus Hardy of the Red Rock First Nation, the one of the nations behind the project. claim, said in an interview.
Anishinaabe leaders signed two treaties in 1850 covering territory along the northern shores of Lake Superior and Lake Huron, extending from what is now Thunder Bay, Ontario, south to Parry Sound, Ontario. Ontario.
As part of these agreements – known as the Robinson-Superior and Robinson-Huron treaties – the Crown promised an annuity to the Anishinaabe and included a one-time clause to increase the annual payment to the extent that resource revenues increased. allow.
This annuity was first set at approximately $1.60 per capita, and has only been increased once, reaching $4 in 1875. Today, First Nations claim they are owed billion.
Indigenous legal experts say the ruling in this case could affect other treaty negotiations.
“The concepts of sharing and sharing the benefits of resources – those are really things that we need to talk about in what we call historic treaty implementation,” said Sara Mainville, former chief of the Couchiching First Nation and partner at JFK Law, whose practice areas include indigenous self-government and treaty implementation.
Superior Court Justice Patricia Hennessy ruled in 2018, as part of the first stage of the case, that the Crown had a duty to engage with the Anishinaabe in a process to increase annuities when economic circumstances allowed it.
Earlier this year, Canada and Ontario agreed to a separate proposed settlement that, if ratified, would allow them each to pay $5 billion to the 21 First Nations covered by the Robinson-Huron Treaty.
But lawyers for First Nations covered by the Robinson-Superior treaty say no reasonable offers were made to their clients, allowing the current case to move forward.
These lawyers argue that First Nations owe up to $126 billion.
They say the judge in the case must not only establish guidelines for how to determine what is owed to First Nations, but also potentially groundbreaking principles for how the treaty will be honored in the future.
Chief Hardy said the decision could help lay the “building blocks needed to move forward” with the future of treaty relationships and First Nations self-government.
“While this will enrich the lives of our First Nations people – it will enrich the lives of our future generations – what is more important is the recognition and respect of the treaty going forward,” he said.
The judge’s decision will consider testimony about how much the Crown has earned from resource revenues over the past 170 years, what resources to include and what expenses to subtract, how much of that revenue was to be shared with First Nations, how calculate interest. tax rates and how to divide the responsibility between Canada and Ontario.
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“A court’s decision on how to advance money or calculate what constitutes fair compensation for decades of losses will influence the direction of bargaining tables across the country,” Michael said. Coyle, professor at Western University Law School. specializes in treaty rights and Indigenous rights.
Canada’s lawyers argued in written submissions that the First Nations’ compensation claim is based on a model that captures the full value of the territory’s resource wealth, beyond what the Crown earned directly from those resources. resources through levers such as taxes.
They say this model does not reflect a “realistic shareable amount” and suggest compensation should be between $578 million and $2.45 billion.
Ontario’s lawyers, meanwhile, argue in their written submissions that the First Nations owe nothing, or at most $86 million, because the Crown spent more money than it took in. won to try to develop resources in the area covered by the Robinson-Superior Treaty.
It’s a position that “defies reason and logic,” says Harley Schachter, a lawyer representing the First Nations who has worked on the case for more than 20 years.
“If that were true, then…back in the ’50s or ’60s, the Government of Canada should have gone to the Anishinaabe and said, ‘My God, we can’t do this, here’s $2 billion, $3 billion dollars.” , just take this money and take back the lands, take back the waters,” he said in an interview.
Ontario also requested in its written submissions that the court wait to issue its decision until the Supreme Court of Canada hears an appeal on the interpretation of the treaty. This appeal is expected to be heard in November.
In documents filed with the Supreme Court, Ontario argued that interpreting the treaty could have significant consequences on its finances and its ability to balance different public needs.
A spokesperson for Ontario’s Ministry of the Attorney General said the province’s appeal to the Supreme Court “will address issues that remain relevant between the parties in both actions.”
In a brief statement, a federal spokesperson for Crown-Indigenous relations said negotiated agreements were preferable, but the government respected the First Nations’ decision to try the case.
Closing arguments in the current case are expected to conclude this month.