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Robinson Huron Treaty Annuities Case

 

 

Robinson Huron Treaty Annuities Case

Restoule, et al. v. Attorney General of Canada, et al.

Court File Nos. C-3512-14 & C-3512-14A

FINAL HEARING DATES

Phase 1 of the

RHT Annuities Case

 

June 4-5

Robinson-Huron Treaty Closing Arguments

 

June 6-7

Robinson-Superior Treaty Closing Arguments

 

June 8

Crown begins Closing Arguments

 

June 14-15

Closing Crown Arguments

*possible addition of June 13

 

 

June 18-20

Closing Crown Arguments

 

June 21

Closing Reply by the Robinson-Huron Treaty

 

June 22

Closing Reply by the Robinson-Superior Treaty

 

 

 

 

Buses arranged to transport Sagamok members to and from the Closing Arguments

June 4, 5 & 8

 

Morning Departures from Sagamok

 

LaCloche Pizza Parking Lot

7:40am departure

 

Multi-Educational Centre

7:50am departure

 

Toulouse Gas Bar

8:05am departure

 

Arrival in Sudbury

9:30am

 

Departure from Sudbury to Sagamok

4:30pm

 

 

 

 

 

 

Sacred Fire,

Sweat Lodge Ceremony

and Feast to prepare for closing statements

 

There will be a sweat lodge ceremony, sacred fire, drumming and feast at Atikameksheng Anishnawbek on Sunday, June 3 to prepare for the closing statements of the parties to the Robinson-Huron and Robinson-Superior Treaty.

 

Sweat Lodge Ceremony

2:30pm

125 Lakeshore Road, Atikameksheng Anishnawbek

(Frank & Julie Osawagosh residence)

 

Feast

6:00pm

37 Reserve Road, Atikameksheng Anishnawbek

(Atikameksheng Anishnawbek Community Centre)

 

Sacred Fire & Drum Group

37 Reserve Road, Atikameksheng Anishnawbek

(Atikameksheng Anishnawbek Community Centre)

 

***The Sweat Lodge can hold a maximum of 20 participants. Please note that invitations have been extended to Madame Justice Hennessy, Legal Council and Chiefs, meaning that the ceremony will be full. All Robinson Huron Treaty beneficiaries are encouraged to attend the sacred fire and feast.

***Those going into the Sweat Lodge are asked to come ready-dressed, though there will be an opportunity to clean up and change clothes at the Community Centre following the Sweat Lodge Ceremony. 

 

 

 

The RHT Annuities case is being livestreamed. 

You can find the archived videos here:  http://livestream.com/firsttel

 

You can also follow the case on Facebook here:

https://www.facebook.com/Robinson-Huron-Treaty-Trust-Annuity-Case-1181436448654855/

 

And Twitter here:  @1850RHTreaty

 

Visit their website here:  www.rht1850.ca

 

Contact Information For Robinson-Huron Trust:

ROBINSON HURON TREATY LITIGATION FUND

c/o Chairperson, Mike Restoule

1 Miigizi Mikan,

 P.O Box 711, North Bay, ON P1B 8J8

rhttrust@outlook.com

Office: 705.497.9127

Mobile: 705.498.7353 – Fax: 705.497.9135

 

Phase 1 of RHT Annuities Case Concludes in June

Sagamok sending buses for members to attend open court house hearings

 

The first phase of a litigation case being heard by on Ontario Superior court that began in late September will conclude in a Sudbury mobile courtroom by late June. 

The month will begin with a Sacred Fire and Sweat Lodge Ceremony on Sunday, June 3 in Atikameksheng, followed by Closing Arguments from both the Robinson Huron and the Robinson Superior Treaty partners during the first week.  The Crowns will begin their Closing Arguments on June 8 and continue until June 20. 

Court proceedings will continue in the Radisson Hotel in downtown Sudbury in the Rainbow Centre complex located at 85 Ste. Ann Road and a sacred fire burns in the parking lot near the Paroisse Sainte-Anne Des Pin next door where people can offer semaa and prayers. 

Concluding statements concerning their positions a key component of the supreme law of the land that defines the relationship they currently maintain with Canada. 

 

Plaintiffs seek a declaration from the courts that Canada has been obligated since the Robinson Huron Treaty was signed in 1850 to increase the annuities Canada pays under the Treaty from time to time if the territory under the Treaty were to produce an amount that would enable Canada to do so without incurring loss, and that the increase is not limited to an amount that is based on one pound of currency per person. 

 

... William Benjamin Robinson, on behalf of Her Majesty, who desires to deal liberally and justly with all her subjects, further promises and agrees, that should the Territory hereby ceded by the parties of the second part at any future period produce such an amount as will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them, then and in that case the same shall be augmented from time to time, provided that the amount paid to each individual shall not exceed the sum of one pound Provincial Currency in any one year, or such further sum as Her Majesty may be graciously pleased to order; and provided further that the number of Indians entitled to the benefit of this treaty shall amount to two-thirds of their present number, which is fourteen hundred and twenty-two, to entitle them to claim the full benefit thereof. And should they not at any future period amount to two-thirds of fourteen hundred and twenty-two, then the said annuity shall be diminished in proportion to their actual numbers.   ...

Text of the Robinson Huron Treaty, 1850

This section of the Robinson Huron Treaty starts by saying that the Queen, wanting to be liberal and just, promises that if the territory produces wealth that can enable the province to increase the annuity from $2 per person a year to a higher level without losing money, then the annuity would increase. 

This section also says that the amount paid to each person couldn’t exceed on pound of provincial currency, or more than the Queen might decide it should be. 


 

Sagamok is one of 21 Robinson Huron Treaty Signatories with a big stake in the outcome of this case

Gimaa encourages all community and RHT beneficiaries to visit courtroom proceedings to witness concluding statements, show support

 

“The Sagamok leadership strongly encourage our community members to follow the Robinson Huron Annuities case as its outcome will directly impact them,” says Chief Paul Eshkakogan during the Anishnawbek signatory’s Annual Membership Meeting. 

Sagamok is one of the 21 Anishnawbek signatories of the Robinson Huron Treaty of 1850 identified along with Atikameksheng Anishinabek, Batchewana First Nation of Ojibways, Dokis First Nation, Ojibways of Garden River, Henvey Inlet First Nation, Magnetawan First Nation, Mississauga #8 First Nation, Nipissing First Nation, Serpent River First Nation, Shawanaga First Nation, Sheshegwaning First Nation, Thessalon First Nation, Wahnapitae First Nation, Wasauksing First Nation, Whitefish River First Nation, Aundeck-Omni Kaning First Nation, M’Chigeeng First Nation, Sheguiandah First Nation, Zhiibaahsing First Nation, Wikwemikong Unceded Indian Reserve No. 26. 

 

The treaty is signed by ancestors of Sagamok Anishnawbek, identified as,

“FIFTH--Namassin and Naoquagabo and their Bands, a tract of land commencing near Lacloche, at the Hudson Bay Company’s boundary; thence westerly to the mouth of Spanish River; then four miles up the south bank of said river, and across to the place of beginning.”

 

Anishnawbek treaty partners of the Robsinson Treaties have been attending the mobile court proceedings in all venues that have played host.  Sagamok provided transportation for its members to the Little Current and Sudbury venues in October and January.  

Sagamok members are also actively participating in the Robinson Huron Treaty Litigation proceedings, including Elder Irene Makadebin who provided testimony in mid-October concerning

Leroy Bennett is also providing cultural and ceremonial functions supporting the spiritual needs of witnesses, participants and the general proceedings. Steve John has also been assisting with maintaining the sacred fires.  

 

This case specifically concerns a clause in the Robinson Huron Treaty of 1850 that was new in Treaty making and set the precedent for nation-to-nation agreements that came thereafter: an annuities clause that would see not only a promise by the Crown to make regular payments to the Anishnawbek Nations that was understood by all to be “in perpetuity”, but that the Crown’s regular payments would reflect the wealth - or lack thereof - being generated and removed from lands of the Anishnawbek Treaty Partners. 

 

 

 

Case will be heard by the court in two phases

Phase one began on September 25, 2017 in a Thunder Bay Courtroom for weeks before moving on for a week at the Manitoulin Hotel & Conference Centre in Little Current, another week in Garden River and then to Sudbury’s Radisson Hotel where plaintiffs will make their case until March 29, 2018. 

The Robinson Huron plaintiffs are seeking a declaration from the Court that the Crown remains legally obligated under the Robinson Huron Treaty of 1850 to increase the annuity that is paid to the Anishnawbek Treaty Partners from time to time if their territory produces an amount that would enable it to do so without incurring loss and that the size of the increase is not limited to an amount that is based on one British pound per person. 

The plaintiffs are also asking the Court to determine the meaning or legal impact of the phrase “such further sum as her Majesty may be graciously pleased to order” that is found in the text of the Treaty document, whether the revenues taken into account are restricted only to Crown revenues from the territory, whether gross or net revenues are to be taken into account, what are the principles that govern how to determine annuities increases and whether the amounts paid to individuals each year ($4) should be indexed for inflation. 

The outcome sought by the plaintiffs is to have the court determine that the Crown has not lived up to the spirit, intent and application of the Treaty in relation to its sections relating to annuity payments and promises to see these levels augmented from time to time to reflect the wealth generated from the lands belonging to the Robinson Huron Anishnawbek people. 

They also want the court to determine a method of accounting for the wealth generated from their lands since the Treaty was signed so that a settlement can be reached regarding what is owed by the Crown since 1850 up until today, and so that future annuities will have a clear formula for accounting what is to be paid by the Crown to the Robinson Huron Anishnawbek upholding its Treaty relationship responsibilities. 

The court broke for the Christmas holidays before resuming for week 16 during the second week of January when it will hear testimony of Ontario Experts and witnesses and testimony of Canada’s experts in the following weeks.  The court also break during Week 20 to consider final written submissions. 

 

What will Phase Two Involve? 

The 21 Treaty First Nations are hoping for a favourable outcome of the courts and that Canada and Ontario might decide to want to sit down with the RHT Nations.  If not, Phase Two will begin on October 1, 2018 at a currently undetermined location to hear the defendants in this case, both Crowns - the federal and provincial governments will make their case until closing Arguments conclude on November 9 and the court breaks for two months to consider final written submissions. 

In Phase Two, the Crowns are expected to raise issues related to limitations of the case and laches defenses, or a claim that the RHT Nations have had plenty of time to bring their case before the courts since 1850, that there is a lack of credible witnesses or evidence of the 1850 Treaty making event and that circumstances and the relationship between the RHT Nations and the Crown have since changed since the times of Treaty making. 

The Crowns are also expected to argue that the judge should throw this case out on the principle of Res Judicata, or that what is being asked of the court in this case has already received a final judgement in another case and that this decision can no longer be appealed. 

The Crowns will continue arguments between each other as to which Crown is liable in this case to pay for past monies owed, what is owed today and what will be owed in the future in terms of annuities to be paid to the 30,000 RHT beneficiaries in 21 RHT Nations. 

 

There is no telling how long it will take to receive a decision from the court after Phase Two has concuded at the end of 2018.

  

The Case as it Stands

This case involves the interpretation of the augmentation of annuities clause in the Robinson Huron Treaty of 1850. The treaty relationship between the Anishinaabe and the Crown is a fundamental, sacred and ongoing one. Like all long-term relationships, to be functional, it requires respectful attention, mutual understanding and renewal.

 

Some of the issues that will be determined from this case include:

  • What is the meaning and legal effect of the phrase of the RHT that says, “…such further sum as Her Majesty may be graciously pleased to order”?
  • Does the phrase of the RHT that says, “…should the territory…produce such an amount as will enable the … province, without incurring loss, to increase the annuity…” refer only to Crown revenues, or does it also include revenues from business and industrial activities arising from the use of the RHT territory lands?  Further, is it gross or net revenues that are to be used to create an account of the wealth generated from the RHT territories? 
  • What principles will govern how annuities (since 1850 right up to today, as well as futures for years to come) might be calculated from accounts of wealth produces from the RHT territory lands? 
  • Does the phrase of the RHT that says, “the amount paid to each individual shall not exceed the sum of a pound of provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order” mean that regardless of what is generated in wealth from the RHT territories, the maximum that can be paid out to individual treaty beneficiaries cannot exceed the set amount of $2 in 1850 and that for 177 years since the Treaty has been signed, her Majesty has never been pleased enough to order an increase?  Should the wealth generated from RHT territories be indexed for inflation? 

 

 

The Crown’s Position

The Crowns of Ontario and Canada say that once the annuities had been increased to $4 per person in 1874, they had reached their maximum limits stated in the 1850 Treaty and that the statement of “such further sum as Her Majesty may be graciously pleased to order” is entirely without meaning. 

They assert that after annuities were raised to $4, any further increases would come “ex gratia”, or from a sense of moral obligation  rather than because of any legal requirement arising from the 1850 Treaty. 

According to the Crowns, once the 1874 increase to $4 occurred, it could simply refuse to increase the annuities to reflect the value of the land - or even to consider to doing - regardless of the wealth coming to the Crown from the use of the land.  

The Crown’s paradigm describes a treaty that was not, and is not, capable of ensuring that the Robinson-Huron Anishinaabek would be dealt with in a “just and liberal manner,” as promised in the 1850 Treaty and as the honour of the Crown requires. 

The Crowns position is essentially that the intention of the Treaty and the core promise of the its annuities clause that it would provide the Robinson Huron Anishnawbek people with the ability to continue to be sustained by their lands through meaningful agreements that would share the economic benefits and wealth generated from the lands with the Crowns. 

 

Crowns Launch Litigation Against Each Other

Both the Provincial and Federal Crowns have also launched lawsuits against each other claiming the other has responsibility in this matter.  Though the federal Parliament holds a fiduciary responsibility over the Crown’s relationship with its Treaty Partners, it is the provinces who are responsible for natural resources, their extraction and collecting the taxes associated with them.  

When the British North America Act brought together the Upper and Lower Canadas with New Brunswick and Nova Scotia under Confederation 17 years after the 1850 Treaty, the provinces of the new dominion were faced with reconciling the accounts of the old provinces in lieu of their debts and liabilities - especially those related to the Treaties with First Nations made previously by the Crown that involved the lands contained within the new province’s chartered boundaries. 

In 1850, Upper Canada was broke, saddled with the debts of fighting the War of 1812 and funding the young colony’s expansion. 

 

 

Annuities Case Considers Intent and Spirit of Treaty, along with the Written Document

In 1850, Upper Canada was broke, saddled with the debts of fighting the War of 1812 and funding the young colony’s expansion.  Upper Canada looked to the resource rich northern great lakes interior to finance its future and a Treaty was the only way for it to get its hands on the weatlh of those territories. 

Dr. Carl Beal is an expert in economics with a specialization in indigenous economic development and economic history.  With his testimony at the RHT Annuities courtroom in mid-November, Dr. Beal explained the Treaty in the context of the landscapes its Treaty partners found themselves in, saying that it was the annuities clause that made the Treaty possible meeting both the Crown’s interests and the interests of the sovereign Anishnawbek signatories. 

Beal said that for the Anishnawbek people, mining exploration, encroachment on timbers lands and the growth of settler populations in the Robinson Huron Treaty area were worrying and that they desired a Treaty to alleviate their concerns with the spread of settlers and mining exploration occuring unfettered in their territories. 

He said that the Vidal and Anderson Report to the Governor General in Council prior to the Treaty being signed stated that the Anishnawbek were ignorant of the value of their lands but expressed the concern that a negotiated agreement may not be possible given the Anishnawbek expectations and what the Crown’s surveyors reported as “poor prospects for the development of the land.” 

The 1849 report was undertaken to assess the willingness and conditions under which Anishnawbek nations might choose to enter into a treaty with the Imperial Crown. 

Vidal and Anderson suggested what Dr. Beal called a “contingent agreement” that would allow for an increase of payment upon the further discovery and development of any new sources of wealth.  Agreements like this are common where parties might be unsure about the future of disagree on future outcomes. 

An agreement without the annuity augmentation clause wouldn’t have been acceptable to the 1850 Chiefs, especial Shingwauk and his Huron group. 

If when the treaty’s annuity provision speaks of “such further sum” to mean that the Crown has an unfettered discretion to increase or decrease the annuity amount above or below $4 and disregard the value of the wealth that has been extracted from the land, then the clause is meaningless for Anishnawbek Treaty Partners. 

Robinson himself indicated that the augmentation clause had been critical to obtaining agreement on the Treaty. 

Beal said that “When the Robinson-Huron treaty was signed in 1850, the bands were given a one-time payment of 2,160 British pounds distributed amongst themselves, plus an annual payment of 600 pounds to be paid to each band. That left Robinson with about $20,000 to invest at six per cent a year, the money produced to be paid out in annual annuities.”

But the treaty was also a two-way street for the government.

“If your population goes up, each of you will be entitled to less,” he explained. “If your population goes down, he would try to reduce the (individual) annuity.”

Beal also said that in 1851, there were 63 mining leases in the Robinson-Huron treaty territory that would have produced revenue of $337,900 if all the mining companies had paid up. That would have produced an annuity of $7.25 per person for the 2,662 First Nation members.

“If every mining site was fully paid, they could have exceeded the $4 amount,” he said.

 

 

Anishnawbek RHT Partner Position

The litigants in this case - 21 First Nation signatories of the 1850 Robinson Huron Treaty - say that the Crowns’ positions are absurd. 

The statement of “such further sum as her Majesty may be graciously pleased to order” is not a meaningless phrase found in the Treaty text.  It means something and it had a common intention understood and appreciated by both the Crown’s negotiating party and by the Anishinabek signatories. 

The statement of “such further sum as her Majesty may be graciously pleased to order” is not a meaningless phrase found in the Treaty text.  It means something and it had a common intention understood and appreciated by both the Crown’s negotiating party and by the Anishinabek signatories.  appreciated by both the Crown’s negotiating party and by the Anishinabek signatories

It was understood by both the Anishnawbek and the Crown that there was an expectation with this clause that her Majesty would exercise her discretion to provide benefits to her Treaty partners in an honourable and generous way, consistent with her promise to treat them in a just and liberal manner. 

Anishnawbek had already had a pre-existing relationship with the British Crown prior to the 1850.

The Royal Proclamation of 1763 was issued by King George III and is a document that set out guidelines for European settlement of Aboriginal territories in parts of North America. The Royal Proclamation was clear that lands did not become available for settlement – known as public lands – until after a treaty with Aboriginal inhabitants.  They had come to expect that the Crown would treat them with respect and generosity.

The statement of “such further sum as her Majesty may be graciously pleased to order” reflected an understanding that the disposition of her Majesty is to be kind and generous and caring as had been maintained at least as far back as the 1764 Treaty of Niagara. 

By 1850, the Crown knew that the Anishnawbek of the Huron and Superior territories understood the looming threats to their way of life and they wanted a Treaty arrangement that would ensure that they could remain connected to their lands and benefit from rapidly changing political and economic landscapes.  The Anishnawbek were seeing mining companies coming into their territories and extracting unknown wealths from the their lands - all without a Treaty. 

Roger Jones is Sagamok’s lead involved in the Robinson Huron Litigation case.  He says that “the Robinson Treaties were initiated because of repeated protest and appeals by Anishnawbek governments concerning settlers in their territories, extract wealth and resources – as minerals and timber - from their lands.  Anishnawbek leaders believed that their peoples should be benefiting from the wealth being generated as well.”  The 1850 Robinson Huron annuities clause was also advantageous to the Crown’s plans for its North American presence.  The annuities clause allowed the treaty promise enabling the Anishnawbek to continue to flourish on their lands in a new arrangement while permitting the Crown to explore and develop treaty territories. 

When William Benjamin Robinson came to the northern great lakes to start talking with the Anishnawbek living there about a Treaty, what was then Upper and Lower Canada were not in very good financial shape and definitely not in a position to meet the demands being made by the Huron and Superior Chiefs of even $10 per head that Shingwaukonse’s group asked for in the last few days of negotiations - down from the $70 he originally thought the value was worth. 

The Robinson Huron Treaty’s annuities clause described an arrangement that could either increase or decrease as a resource revenue sharing agreement that would see annuity payments change given the profits extracted from those lands. 

It was a good arrangement for the struggling new Dominion with so little money and such big dreams that relied on the wealth contained in Anishnawbek lands. 

To Jones, this case makes us ask, “What did our ancestors know about the value of their lands?” 

He says that the Anishnawbek of 1850 may not have as firm appreciation of existing pricing structures for land at the time, but they did appreciate that wealth was being generated and much more could be generated from their lands in terms of the resources they were already seeing extracted as timber and minerals.  They appreciated their lands for the resources that they could yield and appreciated this as a long-term generator of wealth. 

He says that without an augmentation clause that was effective and meaningful, Anishnawbek people would not have agreed to the Treaty.  “Anishnawbek people say to themselves today, `Our ancestors fought for this - my grandparents parents fought for this clause.  Why would they have agreed to place government solely in charge of it?”

The litigation case, Jones told community members during Sagamok Annual Membership Meeting (AMM) on November 9, is made by plaintiffs who are the Anishnawbek Partners of the Robinson Huron Treaty of 1851 who claim that the Crowns have breached the partners’ Treaty Rights concerning the annuities promises of augmentation, that the Crowns have breaches their Fiduciary Obligation to act in the best interests of the indigenous people with whom it makes Treaties with, and that the Crowns have not upheld the promises of the 1982 Constitution to uphold aboriginal rights in Canadian Law. 

Treaty interpretation relies on the notes of negotiators that accompany the text of a Treaty.  They are the minutes of what was said during negotiations, capturing all that was said through a team of interpreters.  They contain what issues and concerns there were with parts of the Treaty or those in relation to the Treaty in general, clarifying and clauses and verifying intentions. 

In the case of the Robinson Huron Treaty, the Treaty document left Bowating on the 10th of September accompanied by its notes.  When the documents were received by the Indian Department,  the package contained only the Treaty document.  The notes never made it and have since never been recovered. 

This poses a problem for the 21 First Nations who are represented by the Robinson Huron Annuities Cases today.  

This case involves overcoming problems of language that is contained in the written version of the Treaty signed in good faith between the Crown and the Chiefs of the Huron territories.  In Canadian Law, precedent Supreme Court decisions have ruled that when it comes to Treaties and their interpretation, two perspectives are relevant for consideration: the written intent and the Anishinabek understanding of the Treaty and its components.