Court ruling to grant First Nations a much bigger cut of resources royalties in Ontario
Jan 05, 2019 05:54AM
Wiikwemkoong Chief Duke Peltier speaks to the Globe and Mail on June 21, 2018 in Toronto. Photo: Glenn Lowson
By Sean Fine of The Globe and Mail - January 5, 2019
Forty thousand members of 23 First Nations communities in Northern Ontario have been receiving $4 a person each year from the Crown for ceding rights over a resource-rich territory about the size of France under 1850 treaties.
The Indigenous groups filed a court challenge against the Crown, saying the $4 annuity did not reflect the spirit of the treaties. And now a judge – after an exhaustive examination of the history of the treaties – has ruled that the signatories intended that the annuities should grow to allow the First Nations to share the growth in revenues governments receive from resource companies in the territory.
Wiikwemkoong Chief Duke Peltier, who was involved in the case, said the ruling shows that the courts are pushing government to “place our people back to the way we once were, that is as true partners in the development of this country, living together in harmony.” He described the $4 annuity as barely enough to buy a coffee in Toronto.
His community has high unemployment and social problems, he said, while mining, forestry and land-leasing businesses thrive.
The Canadian government had argued that the courts have no authority to review the agreements. It said the Crown had sole discretion over whether to increase the payments, and did not have to disclose resource revenues, or consult Indigenous communities. The Ontario government went further, saying the agreements capped the annuity at $4, although it said the figure should be adjusted for inflation. (Because the treaties were signed before Confederation, both governments represented the Crown.)
But Ontario Superior Court Justice Patricia Hennessy, in a ruling released late last month, said the Crown had acted without honour. The last increase came in 1875. A lump sum of a few thousand dollars was paid to the communities in 1850.
“Since 1850, the Crown has acted with unfettered discretion in their interpretation and implementation of the treaties, in a way that has seriously undermined their duty of honour,” she said in a 124-page ruling. “This left the treaties’ promise completely forgotten by the Crown.” She said that if the Crown had used its discretion, even to consider and reject raising the annuity, there would have been written reasons for the rejection. But none existed.
And she served notice that the courts will continue to supervise the Crown’s exercise of its obligations under the treaties (one covers 21 communities, and the other covers two). Most of the First Nations in question are on the northern shores of Lake Superior and Lake Huron, on territory stretching as far north as Hudson Bay.
″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 interpretation of a $4 cap, she said, "suggests that the treaties were a one-time transaction. As the historical and cultural context demonstrates, this was not the case; the parties were and continue to be in an ongoing relationship.”
The amount of money that the First Nations communities are entitled to will be the subject of a later stage of the lawsuit, although a settlement is possible. Given the period it will cover – 168 years, plus future revenues – hundreds of millions of dollars, perhaps more, are at stake.
Mr. Peltier said the ruling has wide importance for other First Nations that have signed treaties.
“The courts have determined that the treaties are in fact living documents that need to be reviewed periodically, and they need to be honoured by the Crown,” he said in an telephone interview from Manitoulin Island.
Jane Deeks, a spokeswoman for Carolyn Bennett, the Minister of Crown-Indigenous Relations, said the federal government is reviewing the decision.
“Honouring the treaty relationship, based on the recognition of rights, respect, co-operation and partnership, is important to this government and is key to advancing lasting reconciliation,” she said in an e-mail to The Globe and Mail.
Justice Hennessy delved into 30,000 pages of documents. She heard from historians, chiefs and elders (and permitted live-streaming of the case), as she recreated the history of the treaties, and the contemporaneous understanding on both sides. She brought in experts in Anishinaabe law, and an interpreter who told the court the First Nations' language, Anishinaabemowin, had no translation for “as Her Majesty may be graciously pleased to order,” wording that related to increases in the annuity.
“Her Majesty wasn’t gracious,” Joe Arvay, a lawyer for 21 of the First Nations, said in an interview.
He called the ruling “a big deal. This is the first treaty I believe in Canadian history in which a court has said that the Crown has to actually share in the revenues of the resources that the territory generates.”