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Robinson-Huron Treaty annuities case: Ontario seeks stay – lawyer

November 8, 2022

Robinson-Huron Treaty Litigation Fund says Ontario has asked for a stay in final stage of court case while it appeals previous court decision on treaty annuity payments

A map of Robinson Huron Treaty territory. Whitefish River First Nation website The third and final stage of an ongoing court case over treaty annuity payments launched by signatories to the Robinson-Huron Treaty is slated to begin early in the new year, but could face potential delays in light of legal wrangling by Ontario to stay the proceedings while it appeals a previous decision made in the case.    

Justice Patricia Hennessy has ruled in favour of treaty beneficiaries in previous court decisions, finding that the Crown had failed to live up to its obligations to increase annuity payments over time as mineral and forestry resources were being developed in treaty territory. Two appeals launched by the province regarding those decisions have since been rejected, for the most part, by the Ontario Court of Appeal. 

The Crown initially promised to pay a perpetual annuity of £600 or $2,400 under the 1850 Robinson-Huron Treaty, which in 1850 worked out to roughly $1.60 per person. An augmentation clause, which allowed for increases in annuity payments over time, was supposed to provide additional incentive for Anishinabek communities to sign the treaty. 

The last increase in treaty annuity payments took place in 1874, when the annuity was increased to $4 per person in Robinson-Huron Treaty territory, which is home to 21 First Nations that are signatories to the treaty.   

The final stage of the court case, known as Stage Three, will deal with the amount of compensation owed to beneficiaries under the treaty and which Crowns will be liable to pay the augmented annuities. 

Daniel McCoy, a member of the legal team for the Robinson-Huron Treaty Litigation Fund, told attendees of a virtual treaty week presentation Tuesday that Ontario appealed the Stage One decision earlier this year to the Supreme Court of Canada over issues surrounding treaty interpretation, treaty implementation and remedies for breach of treaty.    

“It’s a highly legal issue, and it really doesn’t have a lot of play in the facts around the annuities, the augmentation promise. But it is something I think the Supreme Court is very interested in tackling,” said McCoy. “Really, the question is how should appeal courts deal with appeals about treaty rights.”

Deadline for the submission of intervenor motions is Nov. 18.  

“It’s an interested party who’s going to assist the court. We have heard from a number of First Nations and First Nation groups who are interested in intervening,” McCoy said. 

The hearing for Ontario’s Supreme Court appeal of the Stage One decision is anticipated to take place in the fall of 2023, with a decision being handed down as early as spring or early summer of 2024.

Ontario also brought a motion before the Supreme Court of Canada requesting to stay the Stage Three hearings, which was denied. The Supreme Court directed Ontario to bring its motion to Justice Hennessy to make a decision instead. 

Ontario’s request for a stay in the Stage Three hearing was heard by Justice Hennessy Nov. 4. The Robinson-Huron Treaty Litigation Fund expects that decision to be made soon, given that the Stage Three trial is scheduled to begin Jan. 16. 

McCoy says that about 80 days of evidence is anticipated for the Stage Three trial, which will include a series of economic expert reports prepared by the litigation fund’s legal team and evidence supplied by Anishinaabe elders. 

“We’re going to be asking the elders to give the court some guidance on the importance of land, principles for sharing, the process for sharing wealth and resources,” he said. 

The seventh annual Treaties Recognition Week in Ontario takes place Nov. 7-11.