Court finds constitutionally protected Treaty Right to resource revenue sharing

Robinson-Huron Treaty wins historic victory for First Nations

Mike Restoule, chair of the Robinson Huron litigation trust, believes that the federal and provincial governments need to get busy on seeking a settlement before the parties rack up more costs in the courtroom. Photo by: Laura Barrios.


SUDBURY (December 24, 2018)–168 years after signing the Robinson-Huron Treaty, the calls from former and current Anishinabek Chiefs for the Crown to fulfill its Treaty promise to share the resource revenue of the Treaty territory have finally been heard.

“We are so pleased that the Court has heard us and agreed with us that the treaty was not a one-time transaction, but an ongoing promise to share the resource revenues in the Treaty territory, laying the foundation for a respectful and mutually beneficial co-existence. We have always been ready to negotiate a renewed treaty relationship and now, with this decision, we hope to be able to get that work underway,” said Ogimaa Duke Peltier, one of the six representative plaintiffs named in the Statement of Claim that was filed with the Ontario Superior Court of Justice on September 9, 2014, on behalf of all members of the Anishinabek Nation who are beneficiaries of the Treaty.

The action was brought against the Crown in right of Canada and the Crown in right of Ontario regarding the Crown’s failure to honour promises made in their longstanding Treaty relationship with the Anishinabek Nation that dates back to the Royal Proclamation of 1763.

Under the Treaty, entered into on September 9, 1850, the Lake Huron Anishinaabe agreed to share their lands and resources with the settlers ‐‐ approximately 35,700 square miles of territory. In return, the Crown promised, among other things, to share the net resource revenues generated from the use of the land by paying annuities that would be augmented based on the productivity of the Treaty territory. Although great wealth has since been generated from the territory, Anishinabek Treaty beneficiaries received only $4.00 per year since 1874.

“It was discontent about mining activities by settlers without the free, prior and informed consent among the Lake Huron Anishinabek that forced the Crown to enter into a treaty relationship to get access to the lands and resources they coveted. Unfortunately, the failure to honour the Treaty promise meant the discontent continued and will continue until the case is settled. The decision is the first step to have the Treaty enforced to deliver a sharing of the wealth that our ancestors negotiated,” according to Chief Dean Sayers.

In the judgement, Madam Justice Hennessy wrote:
I find that the Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant. The economic circumstances will trigger an increase to the annuities if the net Crown resource-based revenues permit the Crown to increase the annuities without incurring a loss. The principle of the honour of the Crown and the doctrine of fiduciary duty impose on the Crown the obligation to diligently implement the Treaties’ promise to achieve their purpose (i.e. of reflecting the value of the territories in the annuities) and other related justiciable duties.

The decision establishes that the promise is enforceable in court unless the government negotiates a mutually acceptable approach with the First Nations.

The Chairman of the Robinson-Huron Treaty Litigation Trust, Mike Restoule, believes that the federal and provincial governments need to get busy on seeking a settlement before the parties rack up more costs in the courtroom.

“Reconciliation is the imperative established in Supreme Court of Canada cases, in the Truth and Reconciliation Calls to Action and United Nations Declaration on the Rights of Indigenous Peoples and we are ready, willing and able to achieve reconciliation through a negotiated settlement,” said Restoule.

The decision also observed the opportunity for reconciliation through treaty renewal:
The Anishinaabe and the Crown now have an opportunity to determine what role those historic promises will play in shaping their modern treaty relationship. The pressures they faced in 1850 will continue to challenge them. However, in 1850 the Crown and the Anishinaabe shared a vision that the Anishinaabe and the settler society could continue to co-exist in a mutually respectful and beneficial relationship going into the future. Today, we arrive at that point in the relationship again. It is therefore incumbent on the parties to renew their treaty relationship now and in the future.

“Indeed, the spirit and reality of sharing will continue once a financial settlement is achieved”, said Chief Valerie Richer.

She added that the economy of Northeastern Ontario would benefit from such a settlement since the First Nations are part of the economic diversity of the region.

Failing settlement, the compensation assessment will be determined by the Courts in an upcoming hearing.


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