First Nations under the Robinson Huron Treaty are receiving $10 billion in mid-August, but a Supreme Court ruling issued July 26 may affect negotiations for any future increase to payments owed to First Nation signatories to the Robinson Huron and the Robinson Superior treaties.
While it’s a mixed decision from the Supreme Court of Canada, with some provincial appeals won, and cross appeals from the Robinson Huron Treaty Litigation Team (RHTLF) plaintiffs dismissed, rights and obligations under the treaty are clearer, going forward.
Gimaa Angus Toulouse, a RHTLF trustee and chief of Sagamok Anishinabek, said in November 2023 the Supreme Court hearings were focused on treaty interpretation, or more specifically, what body should be tasked with interpreting the treaty: the courts or the Province of Ontario.
“The Supreme court will require the Crown (Ontario) to negotiate or, failing agreement, determine the compensation it owes to First Nations for breaching its treaty promises,” reads the July 25 Supreme Court decision, meaning it will be up to the province to interpret, then negotiate and not the courts to determine.
The road to the Supreme Court began in 2014, when the Robinson Huron Treaty Litigation Team (RHTLF) initiated court action against Canada and Ontario for failing to live up to the annuities clause in the treaty. Since 1874, the annuity has not been raised past $4, though the Crown has generated immense wealth from treaty land.
The legal actions were split into three stages. At Stage One, the treaties were interpreted; at Stage Two, the Crown’s defence for immunity and limitations were addressed, and; at Stage Three, remaining issues, including financial remedies, were to be addressed.
Stage Three of the trial began in February of last year, but a $10-billion settlement was reached with Robinson-Huron signatory members in June, 2023.
Though settlement has already been reached, this Supreme Court appeal still relates to Stages One and Two; it could affect the negotiation between the two parties — Ontario and the RHTLF — as to whether there will be an increase to the annuities going forward.
Ontario appealed to the Supreme Court of Canada on a number of issues, including:
- The interpretation of the augmentation clause as it's written in the treaty;
- The Crown’s obligation to put the clause into practice, and;
- The appropriate remedy for not honouring it.
The RHTLF and Superior Treaty representatives cross‑appealed on the appropriate remedy, and these appeals were dismissed.
The decision
In their decision, the Supreme Court judges found that “an opportunity for negotiation and agreement outside the courtroom has greater potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown.”
In this case, the Crown means Ontario.
Writing the decision on behalf of a unanimous Supreme Court, Justice Mahmud Jamal held that the Crown has a duty to consider “from time to time” whether it can increase the annuities without incurring loss.
“If the Crown can increase the annuities beyond $4 to each individual, it must exercise its discretion and decide whether to do so and, if so, by how much,” he wrote. “This discretion is not unfettered; it must be exercised liberally, justly, and in accordance with the honour of the Crown. The frequency with which the Crown must consider whether it can increase the annuities must also be consistent with the honour of the Crown.”
Justice Jamal added that, given the “longstanding and egregious nature” of the Crown’s breach of the augmentation clause, the Crown must exercise its discretion and increase the annuities with respect to the past.
The judges also found that although “no specific fiduciary duties” apply in respect of the augmentation promise, “the honour of the Crown requires the Crown to diligently fulfill this promise.”
