More than six years since its first day in court, the Robinson-Huron treaty annuity case is being heard in the Supreme Court of Canada today and Wednesday.
At the center of this historic case is the promise that annuities to indigenous communities would increase in accordance with the wealth produced by the land.
Despite billions of dollars in profits generated by the mining, forestry and fishing industries since the signing of the treaty, payments to the Anishinaabe were limited to $4 per person in 1874 and have not increased since.
In 2018, the Ontario Superior Court of Justice ruled that the province had an obligation to increase annuities.
The province appealed the decision to the Ontario Court of Appeal, which upheld the lower court’s findings in 2021.
Judges at Canada’s highest court will be asked to examine stages 1 and 2 of the trial relating to the interpretation of the escalation clause and the Crown’s defences, respectively.
In its factum, Ontario emphasizes that the treaty wording should be interpreted to mean that annuity increases are at the discretion of the Crown and not for the court to decide.
The province maintains that governments ultimately have the power to decide how to allocate public resources and that these matters should not be dictated by the courts.
“Ontario is trying to argue that the decision is up to them,” said Robinson-Huron plaintiffs’ lead lawyer, David Nahwegahbow. “They say it could be reviewable, but the court cannot make the decision or impose the obligation to increase [the annuity]”.
Earlier this summer, signatories to the Robinson-Huron Treaty and the federal and provincial governments reached a proposed agreement worth $10 billion.
The Supreme Court of Canada’s ruling in this case will have no implications for this agreement, which is compensation for past annuities.
But it may have implications for future annuity negotiations, which have not yet begun but are at the center of this case.
The Robinson-Huron Treaty Litigation Fund invited the public to watch the hearing in a livestreamed event, which will be held at the University of Sudbury on Tuesday and Wednesday.
A case with the greatest impact throughout Canada
The case has drawn attention across Canada because it integrates Anishinaabe law, perspectives and principles into the judicial process.
“I think for me that’s one of the important aspects of the case,” Nahwegahbow said. “It’s about understanding very well what the intentions of the parties were when the treaty was signed.”
Aria Laskin, an attorney at JFK Law, a firm that specializes in Indigenous law, is among the many people closely following the outcome of the case.
“It’s a very good example of how the Crown often fails to honor historic treaty promises and historic treaties,” Laskin said.
Laskin said that while the annuities clause is unique to the Robinson treaties, the ruling will address many aspects of other historic treaties in Canada, such as past and current grievances, the honor of the Crown and the scope of fiduciary duties.
“I can’t imagine a major Aboriginal law case not being influenced at least to some extent by the outcome of that case because of the number of issues it contains,” he added.
Both Laskin and Nahwegahbow said the case should be of interest to all Canadians.
“Not only are the Anishnaabe treaty people,” Nahwegahbow said.
Laskin said anyone living in Canada who is interested in reconciliation should pay attention to the outcome of the case.
“Sometimes there is this false dichotomy between balancing the needs of Indigenous and non-Indigenous Canadians, where people are placed on different sides of the scale, but everyone has a stake in a more just and equitable Canada.”