Leaders now calling on provincial and federal governments to negotiate settlements rather than ligation.

Leaders from the 21 First Nations that are part of the Robinson-Huron Treaty speak at a news conference in Sudbury on Thursday. (Kari Vierimaa/CBC)

Leaders from Robinson-Huron treaty are now calling on provincial and federal governments to negotiate settlements rather than risk ongoing litigation which could take at least a decade.

“We’re prepared to sit down and negotiate a settlement,” said Mike Restoule, Chair of the Robinson-Huron Treaty Litigation Fund.

Restoule says the group of twenty-one First Nations in northeastern Ontario have written to Greg Rickford, Ontaro’s Minister of Energy, Mines, Northern Development and Indigenous Affairs, and federal Crown-Indigenous Relations minister Dr. Carolyn Bennett requesting negotiations to address treaty issues which date back to 1850.

“It’s been a long journey since this grievance was brought forward and it would be really nice if the governments of the day would agree to sit down and discuss the settlement with us,” he said.

A spokesperson for Crown-Indigenous Relations Minister Carolyn Bennett says the ministry is reviewing the decision, but are open to “discussions” with First Nations who were part of the legal challenge. (CBC)

Governments reviewing decision; Ottawa open to ‘discussions’

In a statement the Government of Ontario said it’s reviewing the recent decision.

Ottawa, meanwhile acknowledges “honouring the treaty relationship […] is key to advancing lasting reconciliation.”

A spokesperson for Bennett said the department is reviewing Friday’s decision, but “Government of Canada remains open to discussions with the interested parties.”

That’s something David Nahwegahbow— one of the lawyers representing the Indigenous plaintiffs—  believes is the best path forward.

“As Justice Hennessy outlined [in her ruling], it’s harder to achieve reconciliation and an adversarial process which is why negotiations are the preferred venue for coming to terms with this decision and implementing this decision,” Nahwegahbow said.

Batchewana Chief Mike Sayers said sitting in negotiation is “true reconciliation.”

“Sitting at a meaningful table that’s really founded on culture and openness and understanding of each other’s way of life and knowing that we need to reconcile this,” Sayers said. “We don’t want to have the future generations having these confrontational discussions way down the road when we have an opportunity right now based on this decision to get as much mileage as we can out of it.”

David Nahwegahbow, one of the lawyers for the First Nations part of the Robinson-Huron Treaty says he hopes the federal and provincial governments will opt for negotiations rather than continued litigation. (Kari Vierimaa/CBC)

Battle over treaty rights has wider implications: lawyer

The recent victory for indigenous leaders of the Robinson-Huron Treaty territory also impacts a separate claim by two First Nations in the Robinson-Superior Treaty territory.

The Robinson-Superior claim was launched several years before the Robinson-Huron treaty claim was initiated.

The court has decided to try them both together, while compensation or declarations from each case will remain separate.

Their claim—  launched years before the Robinson-Huron Treaty claim— deals with similar language around the escalator clause which exists in both treaties.

“The decision, while it talks about the principles that underlay the treaty relationship and which ought to be the basis on which the augmentation occurs, doesn’t say what the amount is and it recommends that the parties negotiate that amount,” Nahwegahbow said.

“It does talk about duties on the Crown which will assist us in coming to a determination of that amount.”

Nahwegahbow said while the specific aspects of the decision related to the treaty language can only be applied to the Robinson-Huron and Robinson-Superior treaties, he adds the aspects that contributed to the decision will be significant for future cases.

“The court in this case said when determining the Indigenous perspective it’s important to look at Indigenous laws, important to look at the long history of the relationship between the Crown and Indigenous nations which was one of the allies rather than subjects and that’s a very important component in this case,” he said.

Cuthand: Ontario court decision sets precedent for First Nations

An Ontario judge’s decision that treaty annuities must be increased to reflect resource revenue taken from treaty territory promises to be a hot topic, writes Doug Cuthand

Dwayne Kline, right, a member of Cowessess First Nation who resides in Regina, hands a slip indicating his eligibility for a treaty annuity payment of five dollars to Geraldine Linton, left, a governance officer for Indigenous Services Canada, in Regina on June 5, 2018. Behind them, Inspector Honey Dwyer of the RCMP looks on. BRANDON HARDER / Regina Leader-Post

Christmas came early in Indian Country. In a landmark decision, a judge in Thunder Bay has ruled that the treaties are living documents and annuities must be increased to reflect the resource revenue taken from the treaty territory.

The judge’s decision was delivered in Thunder Bay on Dec. 21 and has been barely covered by the media. However, it promises to be a hot topic as the year progresses and the far-reaching effect starts to sink in.

Earlier this year, the 21 First Nations that were the signatories of the Robinson Huron Treaty took the federal government to court to have the annual annuities of $4 evaluated and updated to reflect the increase in resource revenues over the years.

The Robinson Huron Treaty was signed in 1850 and transferred 37,500 square miles to the Crown. Among other promises, the Crown’s representatives stated that the annuity payments of $4 would be augmented based on the productivity of the treaty territory.

The precedents established in this case are groundbreaking and confirm what our elders and leaders have been stating for years.

First, the court ruled that the treaties were not a simple one-time transaction but living documents that will grow and change with time. Our elders often refer to the spirit and the intent of our treaties, which refers to updating the treaty promises to reflect advances in technology and the economy.

Second, the court recognized resource revenue rights of First Nations. The understanding of the First Nations was that they would share the resources with the newcomers; instead, they were ignored and First Nations continued to receive annuities of $4 annually while the province of Ontario developed minerals, forestry and other resources.

The case relied heavily on the honour of the Crown. This principle is something many politicians wish would go away. The principle of the honour of the Crown is that if an agreement is made in the name of the Crown then it must be fair for all, to avoid besmirching the good name of the sovereign. Since the treaties were all made in the name of the Crown, this principle applies to all.

Back in 1982 when the First Nations lobbied to have treaty and aboriginal rights included in the Canadian constitution, the federal and provincial governments refused to define those rights; instead, we had to go to court for clarification and recognition. After close to four decades of court action there is a steadily growing body of First Nations legal victories that define our treaty and aboriginal rights.

The nations of the Robinson Huron treaty have set a precedent that will have application across the country.

On the prairies we have the numbered treaties. Beginning with Treaty 3, a $5 annual payment to each individual Indigenous member of a First Nation is committed to in the treaties.

The Robinson Huron decision sets a precedent that these annuities will have to be updated to allow for inflation and changing circumstances.

This case also makes a strong argument for resource revenue sharing. The provinces will have to pony up, since the resources were transferred to the prairie provinces in 1930 without any involvement from the First Nations. At the time it was illegal to form political organizations or raise money to fight a treaty claim. Now it’s a much different world and we can’t be ignored or shoved aside. For example, the legal team that represented the nations of the Robinson Huron Treaty was strongly First Nations, including Saskatchewan lawyer Don Worme.

We need to reflect on the wealth that came from the land such as forestry, potash, oil, uranium and hard rock minerals. In the future there might well be revenue from diamond mining.

The court in Ontario stated that the case could be settled out of court if the federal and provincial governments negotiate in good faith; otherwise, there would be a court ordered settlement.

All the political parties in Saskatchewan must now commit to supporting resource revenue sharing. The days of one government assuming ownership of all the wealth are gone.

This can be a watershed year if the FSIN and the chiefs get behind this decision and lobby the federal and provincial governments to do the right thing.