Canada is expected to present a settlement offer this week to First Nations of Robinson Superior treaty territory in a longstanding case involving annuities owed to the Anishinaabe on the northern shores of the Great Lakes.
Once the offer expected Friday is received, it’ll kick off negotiations to partially settle a claim that dates back to 1999 and could be worth dozens of billions of dollars.
Lawyers for the Robinson Superior communities anticipate Ontario will make its own offer sometime around the new year, as a deadline imposed by the Supreme Court of Canada looms over the two Crown governments.
In its landmark decision earlier in June, the top court told the federal and provincial governments that they had until Jan. 26 to make offers.
According to the ruling, the First Nations could request an extension, but Canada and Ontario cannot.
“We’ll hold the Crown’s feet to the fire here in order to secure justice,” said Brian Gover, one of the lawyers for the Robinson Superior Anishinaabe.
If the parties fail to agree to past annuities owing, it’ll be up to the courts to decide fair compensation for the Crown having made a “mockery” of a promise central to the treaty relationship between Canada, Ontario and the First Nations, the Supreme Court decision says.
The Supreme Court of Canada has ruled that the Ontario and federal governments made a ‘mockery’ of treaties signed with the Anishinaabe of the Upper Great Lakes in the 19th century by failing to increase annual payments for resource extraction. The decision could cost the governments more than $100 billion.
The other group involved in this historic annuities case — the 21 communities in Robinson Huron treaty territory — settled out of court for $10 billion in 2023, with Ontario and Canada each paying half.
Together with Robinson Superior, the cases centre on a promise dating back to 1850. Both treaties have nearly identical wording and contain a unique escalator clause.
The Robinson treaties promised the Anishinaabe that the annual payments they received from the Crown in exchange for the right to extract resources from their land would increase according to the wealth produced in the territory.
But these annuities were capped at $4 per person in 1874 and haven’t increased since, despite the lucrative profits of the mining, timber and fishing industries — hence a legal battle for fair past and present annuities that has now spanned more than two decades.
2 different paths to justice
The First Nations of Robinson Superior and Robinson Huron treaty territories launched their legal challenges in an Ontario court in 1999 and 2012, respectively.
They were grouped together for the first stages of the trial, which determined that the Crown had a duty and legal obligation to increase payments, both retroactively and going forward.
The Ontario government appealed these findings, eventually taking the case to Canada’s top court.
While Lake Huron Anishinaabeg settled out of court, their Lake Superior counterparts pressed ahead in the final stage of the trial, asking a court in the province to determine which level of government should pay the First Nations and how much.
That proceeding was paused by the Supreme Court earlier this summer to allow for this week’s out-of-court negotiations.
Duke Peltier, spokesperson for the Robinson Huron Treaty Litigation Fund, said the decision to resolve the issue of past compensation outside the courts was taken by the 21 First Nation signatories.
“There was a turning point for us when the Crowns actually sat down with the leadership,” he recalled. “There was a clear indication that the Crowns were serious about negotiations and putting forward a substantial offer.”
Getting settlement soon to benefit elders
According to Peltier, all the communities in the Robinson Huron treaty felt a sense of urgency to reach a settlement in December 2022.
“There was a very clear realization that a number of elders in our communities were passing away before seeing any benefit from the treaty.
“Even if [we] went through the final stage, there was a chance for an appeal that would further delay any form of compensation,” he said.
Should the Robinson Superior First Nation achieve a considerably more sizable settlement for past annuities than the Robinson Huron ones, Peltier said, the story wouldn’t end there.
“Should they attain a higher dollar amount, I’d definitely congratulate them on that,” he said. “But we also know there are plenty more discussions to happen in relation to the go-forward annuity.”
Gover said he can see why the Robinson Huron decided to settle when it did.
“The Huron plaintiffs opted for finality, and one could appreciate the benefits of not litigating further,” he said. “We’re in a different position. We may have to litigate further.”
Robinson Superior compensation could take months, years
Half of the First Nations in the Superior group have a parallel claim related to the annuities case. They argue they actually never adhered to the Robinson Superior treaty and never agreed to have resources extracted from their lands.
These issues will need to be resolved before the communities can officially sign on to the treaty and get their share of the past annuities compensation.
We will not accept a lowball offer.– Gimaa Kwe (Chief) Patricia Tangie of Michipicoten First Nation, spokesperson for Robinson Superior litigation team
Another factor that could complicate negotiations is the discrepancy between what Ontario and the Lake Superior Anishinaabe argued in court during the final stage of the trial.
The province argued it incurred an $11-billion loss while building the infrastructure that would enable resource extraction in the area.
This is in sharp contrast to the accounting models and expert testimony presented by the Robinson Superior plaintiffs, who say resources taken from the land were worth up to $193 billion.
Ontario also argues it shouldn’t be held accountable for the capped annuities because treaties are a federal responsibility. Canada says its liability lies somewhere between 15 and 20 per cent, as managing natural resources revenue is the province’s job.
Should the Robinson Superior plaintiffs disagree with the settlement offers Canada and Ontario make by Jan. 26, they could request an extension to the negotiations or let the court intervene.
According to Gover, an out-of-court settlement would likely be cheaper for Ontario and Canada than a court-mandated one, given how the courts have ruled so far on this case.
“By not negotiating, Ontario would risk an award from the court that would be higher,” he said.
Lake Superior First Nation seeks ‘dozens of billions’
If it came down to a court determining the settlement amount, Ontario Superior Court Justice Patricia Hennessy would take guidance from the Supreme Court of Canada decision.
That ruling says parties should look at the severity of the breaches, the number of Lake Superior Anishinaabe and their needs, the profits that flowed to the Crown, its honour, and the needs of other non-Indigenous communities.
Gover said that, since that ruling came down this summer, the Lake Superior First Nations have tried to “give meaning to those phrases.” They’ve tried to see how Ontario and Canada assess them.
“We are not limited by what was given to the Robinson Huron communities,” he added.
“I think we’re certainly in the dozens of billions as a reasonable range of settlement.”
So far, Canada has been “somewhat forthcoming,” but Ontario has not, according to Gover.
Crowns not taking situation seriously: chief
Michipicoten First Nation Gimaa Kwe (Chief) Patricia Tangie, spokesperson for the Robinson Superior litigation team, said she’s under the impression the Crowns don’t take the renewal of the treaty relationship seriously.
“We’ve been working to sit in council fire since September and still haven’t had it,” she said.
“Last Friday, we were expecting to meet with ministers, and at the 11th hour, we got notice they’re not able to attend.”
Tangle said she feels a lot of pressure to deliver on a settlement for the Robinson Superior beneficiaries.
“People are really anxious. They see the Huron communities receiving their share and they are wondering, ‘Where’s ours?'”
Tangie said she’s optimistic about reaching a good settlement, but worries about potential delays.
“People will look at it as chief and council’s [fault], when really we have no choice but to not accept something that is not fair and just,” she said. “We will not accept a lowball offer.”
Lessons from Robinson Huron settlement distribution
Like the Robinson Huron Anishinaabe, Robinson Superior First Nations will look to keep a sizable portion of a potential settlement aside for collective purposes and future generations while distributing a certain amount directly to community members.
There’s already an understanding for how a settlement would be shared among the Lake Superior communities, based on 2018 population levels.
Tangie said they’ve learned some lessons from the Robinson Huron treaty settlement distribution, chief among them communicating the collective nature of the annuity to the treaty beneficiaries, who are in the habit of receiving an individual payment from the Crown directly.
“We are launching a website this week because communication is key and we want the 12 Nations to have similar messages,” she said.
In Robinson Huron treaty territory, the collective nature of the annuity created heated debate among community members who weren’t used to seeing annuity money flow through band and council.
Some wanted a 100 per cent individual distribution or a greater say in how much gets set aside in a trust.
