Supreme Court of Canada Deliberates on Robinson Huron Treaty Annuities

Ontario government's restrictions on election spending by third parties face constitutional challenge.

Historic case may influence the future of treaty negotiations and Indigenous rights in Canada

The Supreme Court of Canada is in the process of hearing a pivotal appeal concerning the Robinson-Huron treaty annuities, a case that not only shines a light on the responsibilities arising from historic treaties but also carries potential ramifications for future negotiations and Indigenous rights across the nation.

More than six years after the initiation of legal proceedings, the high-stakes deliberations concerning promises made to Indigenous communities under the Robinson-Huron treaty have reached the nation’s highest court. The central issue under examination is the augmentation of annuities, which were assured to increase commensurate with the revenue generated from the lands ceded under the treaty.

Historically, despite considerable profits yielded by the land through mining, forestry, and fishing industries, the annuities for the Anishnaabe have remained stagnant at $4 per person annually since 1874, without any increase to reflect the generated wealth. This has prompted legal scrutiny and subsequent judicial decisions that have now culminated at the Supreme Court level.

In a landmark ruling in 2018, Ontario’s Superior Court of Justice found that the province had a duty to increase the annuities. This was further affirmed by the Ontario Court of Appeal in 2021. These consecutive rulings have now led Ontario to seek a judgment from the Supreme Court of Canada, as it challenges the interpretations of both the augmentation clause and the Crown’s defences.

Elders and chiefs from the 21 First Nation signatories of the Robinson Huron Treaty at the June 17 annouement of the proposed settlement. Atikameksheng Ansihnawbek Gimaa Craig Nootchtai stands left and behind Gimaa Dean Sayers (centre). Jenny Lamothe

Ontario’s legal representatives argue that the treaty’s language implies that any increase in annuity payments is at the Crown’s discretion and is not subject to judicial mandate. “Ontario is seeking to argue that the decision is up to them,” says David Nahwegahbow, lead counsel for the Robinson-Huron plaintiffs. “They say it might be reviewable, but the court cannot make the decision or issue an obligation to increase [the annuity].”

This summer, a proposed settlement agreement of $10 billion was reached between the Robinson-Huron Treaty signatories and the federal and provincial governments to compensate for past annuities. However, the Supreme Court’s ruling will have no bearing on this settlement but is anticipated to influence future negotiations regarding annuities.

Aria Laskin, a lawyer with JFK Law specializing in Indigenous law, is monitoring the proceedings, noting their significance: “It’s a really good example of how historic treaty promises and historic treaties are often not honoured by the Crown.” Laskin and Nahwegahbow both emphasize the broader importance of the case for all Canadians, asserting that the principles at stake affect every resident’s interest in a fair and just society.

The hearings on November 7 and 8 are open to public viewing through a live-streaming event hosted by the University of Sudbury, reflecting the widespread implications of the case and interest from coast to coast.

The integration of Anishnaabe law, perspectives, and principles within the judicial process marks a significant step in the adjudication of the case. “It is trying to get a really good handle on what the intentions of the parties were when the treaty was signed,” Nahwegahbow reflects, underlining the case’s potential to redefine treaty relationships and the Crown’s honour.