‘The terms are not honourable’: The treaty at the centre of a centuries-long dispute

First Nations communities have been challenging the terms of the Robinson-Huron Treaty since before it was even signed in 1850 — now they’re the closest they’ve ever been to a resolution
By Nick Dunne - Published on Sep 11, 2020
Ceremony and Pipe Carrier Leroy Bennett, from Sagamok Anishinabek, speaks to chiefs and members of the Robinson-Huron legal trust in Sault Ste. Marie on September 9. (Courtesy of Earl Commanda)



Each year, people from Wiikwemkoong and 20 other communities line up in front of Indigenous Services Canada booths to collect their treaty annuities. As members of the Robinson-Huron Treaty of 1850, they’re entitled to annual compensation for having handed over title to their lands to the Crown 170 years ago, enabling it to use and sell the land for the purposes of development.

The annuity, the Robinson-Huron Anishinaabe say, was supposed to increase as lumber, precious metals, and fish were pulled from the earth and water. But, despite the fact that the land has since generated billions in revenue, the amount hasn’t gone up since 1874: each year, they have the option to collect $4.

“Our perspective is that we're honouring the relationship that existed — that still exists,” says Chief Duke Peltier of Wiikwemkoong Unceded Territory. “As hard as it can be to line up for that $4 payment on an annual basis, it's a grim reminder to the Crown that the terms are not honourable.”

The Robinson-Huron communities have been disputing the terms of the treaty since before it was even signed. But now, they’re the closest they’ve ever been to a resolution.

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In 2010, they formed a legal trust so that they could pursue ongoing legal action against the Crown — action that would not be vulnerable to changes in leadership. In 2014, that trust filed a statement of claim in the Ontario Superior Court seeking compensation for the Crown’s failure to increase annuity payments, as well as a renegotiation of the annuity amount. On September 9, leadership gathered in Sault Ste. Marie to commemorate the document’s signing and to plan the final phase of the legal battle with the provincial and federal governments.

“This treaty,” says Roger Jones, a legal-team member for the Robinson-Huron trust, “represents an agreement of the parties to live together, to share the land, the resources, and the wealth so that everyone can live a good life, prosper, and develop.”

The Robinson-Huron lands stretch roughly from the eastern edge of Lake Superior to the Quebec border, and from the shores of Georgian Bay up to the Kirkland Lake area. The mineral-rich region features vast swaths of old-growth forest and waters teeming with fish.

The treaty was signed on September 9, 1850, in Sault Ste. Marie by Chief Shingwaukonse of Garden River and other Anishinaabe leaders. One clause, related to annuity augmentation, is at the root of this century-long dispute.

The clause states that the annuity “shall be augmented from time to time … as Her Majesty may be graciously pleased to order.” The Crown has argued that any increase must be at the discretion of Crown officials. But the Anishinaabe say that the annuity increases were to be based on increased profits derived from resource extraction. “Based on information from our research,” Jones says, “our ancestors would never have agreed to unilaterally empower the Crown representative to make the decision” about compensation.

According to the Robinson-Huron court filing, Shingwaukonse had, in documents dating as far back as 1846, advocated for an augmentation clause related to wealth generation. William Benjamin Robinson, the Crown negotiator for the treaty, referenced the clause in a letter to then-Governor General Lord Elgin, writing that it would provide “prospective advantages should the lands in question prove sufficiently productive at any future period.”

Justice Patricia Hennessy, who is presiding over the current case, sided with the Robinson-Huron legal team in phase one of the proceedings, ruling that the Crown was obligated to increase the annuity and had failed to do so. She agreed with plaintiffs again in the trial’s second phase, which involved deliberation over whether the treaty was a contract that had passed the statute of limitations. “Treaties are part of the constitutional fabric of this country,” wrote Hennessy in her decision. “Simple contracts they are not.” While the federal government has accepted the rulings, the province has appealed both decisions. In an email to TVO.org, a spokesperson for the Ministry of the Attorney General acknowledged Hennessy’s decision and the upcoming court dates, but wrote, “As these matters remain before the courts, it would be inappropriate to comment further.”

The impact of ignoring the clause has been immense, according to Chief Dean Sayers, of Batchewana First Nation. “Our people have struggled, and that was never the intention of entering into this agreement with the newcomers to our lands,” he said at a July 30 press conference following Hennessy’s phase-two decision.

Phase three will address the matter of compensation, settling what past annuity payments are owed and renegotiating the amount of future ones. Jones anticipates that this phase will be lengthiest and most contentious: both parties must calculate the Crown’s land and water revenues over the course of nearly 150 years and the costs incurred by the Crown to collect them. “It’s a daunting task,” he says.

Jones says people often ask him, “What took you guys so long? Why are you bringing up all these old grievances?” His answer, he says: “Well, we didn't have that opportunity at an earlier time.”

Following the signing, avenues for legal action were blocked by legislation; under the Indian Act, for example, Indian agents were responsible for community governance until the 1960s. Such measures as the pass system restricted travel between First Nations. And, between 1927 and 1951, bands were barred from hiring legal counsel, making litigation impossible. It wasn’t until the Constitution Act, in 1982, that Aboriginal and treaty rights were affirmed, creating a way to address these claims. “It's taken a while for the law to evolve to the point where we get the benefit of that jurisprudence as reflected in Justice Hennessy's decision-making,” says Jones.

Then there are financial barriers. The 21 First Nations pooled their finances, each taking out loans to pay for the litigation. Though Hennessy ruled that the Crown would take pay for the $9 million in expenses for phase one, that decision was far from guaranteed when the claim was first filed. Peltier says land claims generally require between $20 and 30 million over a 10- to 20-year period — a cost Jones says would jeopardize the financial security of a single First Nation if it were to take it on alone. “No one individual community could take the risk of spending that amount of money because it could imperil them financially,” he says.

“This is a very big case because it deals with not only the annuities, but it is based on the resources that have been extracted from our ancestral lands,” Grand Chief Perry Bellegarde of the Assembly of First Nations said at the July press conference. “So that whole principle of peaceful coexistence and mutually sharing and benefiting from the land and resource wealth in Canada has been espoused here.”

It is not merely incumbent on Crown lawyers and negotiators to develop an understanding of what the treaty entails, though, Peltier notes. “The appropriate response by the provincial and federal governments, as well as the Canadian citizen, is acknowledging and honouring that treaty relationship,” he says. “Reports like the Royal Commission on Aboriginal Peoples, like the Truth and Reconciliation Commission, say that we are all treaty people — that's what needs to be started immediately.”

This is one in a series of stories about issues affecting northeastern Ontario. It's brought to you with the assistance of Laurentian University.

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