November 5, 2021, was a big day for the Anishinaabe (Ojibewa) nations that were signatories to two major treaties in Ontario in 1850, as the Ontario Court of Appeal dismissed an appeal by Ontario of a 2018 Ontario Superior Court ruling in favour of the Anishinaabe plaintiffs. The court ruling on the lawsuit Restoule v. Canada (Attorney General) by Justice Patricia C. Hennessy of the Superior Court of Justice, handed down December 21, 2018, had found that the Crown (Ontario and the federal government) had not fulfilled its obligations to the Anishinaabe where perpetual annuities were concerned under what are collectively known as the Robinson Treaties, which were negotiated by the pre-Confederation colony of Canada West. Canada had accepted the 2018 ruling, but Ontario had appealed, and has lost. What now needs to be determined is how much the Crown owes, and how it will make good on that obligation. [For informed commentaries on the Hennessy judgment, see case briefs at DGW and JFK, to name but two.]
Update: Ontario has taken its appeal court loss to the Supreme Court of Canada
I am not a treaty expert (although one of my doctoral fields was Indigenous history), but the implications of the appeals court ruling could go well beyond cash, and involve Crown lands in some form of compensation. It will probably take years to sort out, but ultimately we may see significant changes in how Crown lands along the shores of Georgian Bay, the North Channel, and Lake Superior are held or administered. On Georgian Bay, for example, which the Anishinaabe call mnidoo-gamii, the waters of the great spirit, we may be on the cusp of additional “re-indiginization” of lands, a process that has been under way through land claim settlements and co-operative agreements for management of conservation reserves or provincial and national parks.
What were the “Robinson Treaties”? The Robinson-Huron Treaty covered the lands all along eastern Georgian Bay, from Matchedash Bay to the North Channel, and then along the North Channel west to Salt Ste Marie, extending inland to include present-day municipalities like Sudbury. The Robinson-Superior Treaty covered the lands along the east and north shores of Lake Superior, from Thunder Bay all the way north to the height-of-land drainage that marked the start of the Hudson Bay Company’s territories, and east to Lake Temiskaming, taking in among other locales Lake Nipissing and present-day North Bay.
Both treaties were “surrender” treaties. The signatory bands or nations agreed to surrender title to their lands, with some lands set aside for their exclusive use as reserves, but the treaties were never intended to function as a one-time sale. They were a natural extension or continuation of the Covenant Chain Alliance between the Crown and Indigenous nations, intended to secure their neutrality after the Seven Years War against the French. (The appeals court ruling contains a good overview of the treaties, this historic relationship, and Indigenous concepts of governance.)
The Robinson Treaties envisioned a continued relationship between the Crown and the signatory nations in the lands surrendered. In addition to continued hunting and fishing rights in those territories, the Treaties made clear that the real and potential wealth of these lands were to be shared in perpetuity. The Crown would pay an annual annuity to the signatory bands, and that annuity could change over time. It could be reduced if the overall Anishinaabe population fell below two-thirds of their number at the time of treating, but the language of the treaties also indicated that the Crown could increase the annuity if the lands produced more net revenues than were currently imagined. One could argue that, under duty of care, the Crown ought to increase that annuity if circumstances warranted. The annuity paid to individual band members was last changed in 1875, and stands at four dollars a year. How much that payment should have increased is a big, unresolved question.
The Anishinaabe leaders who negotiated these treaties knew what they were doing. Although the Crown dismissed the value of most of the treaty lands, because they were unsuitable for farming, a major impetus for getting the treaty deals done was pressure from the mining sector, which led to the Mica Bay incident. In 1846, the Quebec and Lake Superior Mining Association received a lease from Canada West for a mining site Mica Bay on eastern Lake Superior. There had never been a treaty with the Indigenous people to secure the lands in question, and in 1849, Indigenous and Métis warriors brought a stop to mining activities there. Among the warriors was the Anishinaabe leader Shingwaukonse, one of the key figures in the Robinson Treaties. The Anishinaabe leaders who negotiated the Robinson Treaties well understood that settlers could find values in the landscape that no one, not even settlers, could presently imagine, which was why the treaty’s terms for annuities included provisions for future increases. Indeed, the Vidal-Anderson Commission of 1849, which paved the way for the Robinson Treaties, recommended that because little was known about the value of the territory, a provision should be included that would promise a payment increase if there were further discoveries of wealth or development potential. Leaving aside mining, there was a big boom in timber harvest coming.
The legal struggle over the Robinson Treaties involves three stages. The trial judge, in the ruling appealed by Ontario, dealt with stages 1 and 2. For Stage 1, she found (as per the appeal court ruling) “the Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant.” Stage 2 “held that Crown immunity and provincial limitations legislation did not operate to bar the claims.” Ontario’s appeal of that ruling contended that the trial judge “erred in her interpretation of the Treaties and in rejecting its defences of Crown immunity and limitations.” Ontario had argued that there was no obligation under the treaties to increase the individual annuities above the four dollars of 1875. The appeals court rejected this contention 5-0. But as the appeals court justices Lauwers and Pardu observed, the trial judge “seems to have reserved a decision on whether the Crown breached the Treaties for Stage Three. In some ways, Stage Three has become a basket for unresolved issues carried forward from Stages One and Two.”
A core dispute in the Robinson Treaties has been the nature of the annuity. Did the treaties imagine that the annuity obligation was to the collective Anishinaabe, to individuals (who receive the annual distribution), or to both? The trial judge found that there was a “collective” annuity, within which there was an individual component. The appeals court did agree with one key objection by Ontario to the trial judge’s ruling. It found no historical evidence for the concept of annuities capturing a “fair share” of resources, on land and water, within the treaty territories. As justices Strathoy and Brown stated, “The trial judge’s interpretation of the Treaties as giving the Anishinaabe a ‘fair share’ of the value of the Treaty territory went beyond a generous construction of the Treaties and gave effect to modern concepts of fairness and generosity that are not found on either a fair reading of the Treaties or in a balanced assessment of the common intention of the parties.”
So, how much should the Anishinaabe be entitled to, both in lieu of past under-payments and future sharing, without “fair share” being an operative condition? As Lauwers and Pardu observed, “Obviously, the Anishinaabe would not have expected their communities to suffer a range of deprivations, including substandard housing and boil water advisories, while non-Indigenous communities thrived. Nor was it likely, based on the Anishinaabe principles discussed by the trial judge, that the Anishinaabe would have wished to enjoy great personal wealth while their fellow Canadians suffered deprivation.” That sounds an awful lot like “fair,” as either extreme would be considered “unfair.”
That leaves us at Stage 3: reparations. Lauwers and Pardu wrote that “implementation of the Treaty promises in Stage Three presents unusual complexities that will be difficult to manage. It would be far better for the parties to negotiate, rather than litigate, the remaining issues.” So we’re now likely in the negotiation stage, and how the Crown meets its to-be-determined unfulfilled annuity obligations, and fulfills them into the future, could well involve billions of dollars. And that’s where I’m imagining Crown land will figure in the mix.
The worst-case scenario (which I seriously doubt) would be for some Crown land to be sold off for private development, with the proceeds used to address compensation. But I rather imagine some Crown land could be returned to signatory First Nations to augment their existing reserves. Other lands could become part of a revenue and management sharing agreement, up to and including current provincial or national parks (which could enter into some kind of co-management agreement) and the creation of more Indigenous Protected Conservation Areas (IPCAs), such as the one recently announced for Shawanaga Island.
I will not be surprised if we see significant changes in the way some lands that were surrendered under the Robinson Treaties will be managed. Land, after all, is how we got into the treaties in the first place, and land will probably figure in how we straighten out the obligations. While the appeals court may have concluded that the treaties contain no concept of “fair share,” I think most Canadians would consider a greater participation by the Anishinaabe people in the ongoing prosperity and protection of these enormous treaty lands to be more than overdue, however much the term “fair” applies.