Native American Encampment On Lake Huron (oil on canvas, c 1845, by Paul Kane). In 1850, the indigenous people living on the shores of Lake Huron signed a treaty with Britain.
When the fur-trader-turned-politician William Benjamin Robinson pulled up to the shores of the river that links Lake Superior and Lake Huron in 1850, his mission was clear: he was to gain access to as much of the vast territory around him as possible.
Acting on behalf of Queen Victoria, Robinson soon launched into formal negotiations with the indigenous people who lived in what would later become north-eastern Ontario in Canada.
Robinson treated with nearly two dozen communities whose connection to the land stretched back millennia.
Few of them could read, write or speak English fluently, but the two sides eventually struck a deal: in exchange for access to more than 35,700 square miles of land, Robinson offered hunting and fishing rights – and an annual payment equivalent to C$2 (£1.20/$1.60) per person each year.
In 1874, the payment was increased to C$4 a year. Since then, it has remained stagnant.
Now, 167 years after the Robinson Huron Treaty was signed, the document – and its original intent – is at the heart of a landmark legal challenge playing out in Ontario.
Twenty-one First Nations, representing about 30,000 people, have taken the federal and Ontario governments to court, accusing them of failing to uphold the deal Robinson hashed out with their ancestors.
Central to the case is the question of how the annual payment – a promise that dates back more than a century – should be interpreted.
Canada celebrates 150 but indigenous groups say history is being ‘skated over’
The First Nations claim that their ancestors initially balked at what seemed like a paltry sum for their resource-rich land. “So what William Benjamin Robinson said – and I’m paraphrasing – was: ‘Here’s what I’ll do. I’ll offer you this annuity and if the territory produces more revenue for the crown, the annuity will be increased accordingly,’” said Mike Restoule, one of the representative plaintiffs in the case.
The treaty stipulates that any increase in the annuity “shall not exceed the sum of 1-pound provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order”.More than a century after the first increase, despite petitions and appeals from First Nations chiefs to various levels of government, the annuity remains unchanged.
“They’re still today paying that C$4 a year to each individual from the First Nations,” said Restoule. “Despite the fact that trillions of dollars have been gained from the territory for the Crown and for corporations,” he added, pointing to mining, forestry and other resource development that has been carried out on the land.
The case has shone a spotlight on treaty annuities, a tool used in some of the more than 600 treaties that exist across Canada. The annual payments were often added to treaties to sweeten the deal as Britain, and later Canada, pursued access to indigenous lands for white settlers and resource development, said James Dempsey, a professor of native studies at the University of Alberta.
Last year, according to government figures, about 580,000 people were eligible to collect annuities stemming from treaties signed between 1850 and 1921. For many, the meagre payment has become a potent symbol of the complex relationship their ancestors forged with the crown.
Part of the complexity lies in the fact that treaties were never meant to be enduring documents, said Dempsey. “It was believed that Indians were literally going to either die out or be assimilated,” he said.
A man paddles a canoe on a lake in the summer in Ontario, Canada. William Benjamin Robinson offered just C$2 for access to the resource-rich territory around Lake Huron.
But the documents – much like the peoples they represent – instead proved resilient, opening the door to legal challenges. In 2015, a class-action lawsuit attempted to force an increase in annuities, citing the billions of dollars in natural resources that had been extracted from the territories since the documents were created. The case was dismissed on a legal technicality.
The case concerning the Robinson Huron treaty is more nuanced. The treaty is one of two in the country, signed within days of each other, that included the prospect of an increase. The second treaty – known as the Robinson Superior treaty – is also being challenged in an Ontario court in a concurrent case.
Plaintiffs are pushing for a retroactive payment from 1874 onwards, as well as increased annuities in future. Some have estimated that the land may have yielded between C$500m and C$1bn in revenue from resource development over the years, and the First Nations have said they want to see a full accounting of these profits before deciding on a compensation amount.
“It’s time for us to get justice on this,” said Restoule. “Industries, the crown and other people have gotten very wealthy from the territory – everyone except the First Nations people. The First Nations people today continue to live in poverty in their very wealthy land.”
Ontario’s ministry of indigenous relations and reconciliation declined to comment on the case as it is before the courts. But in a statement to the Guardian, the government noted its respect for Aboriginal and treaty rights. “We are committed to meeting the province’s constitutional and other obligations in respect of indigenous peoples,” it said.
The court cases, which have hearings scheduled into early 2018, have attracted attention across the country, said Restoule. “Other First Nation groups are watching this very carefully because they’re saying they don’t have a good deal either,” he added. “So they’re saying, if this case is won by the Robinson Huron treaty First Nations, they’re going to look very closely at efforts to increase their annuity as well.”