Ontario wants out of historic lawsuit


A Sudbury judge is being asked to determine whether the province of Ontario should be on the hook for annuity payments owed to First Nations in northeastern Ontario.

Superior Court Justice Patricia Hennessy has reserved her decision on this and other legal issues following nine days of hearings in Sudbury last month following her historic ruling involving the 21 First Nations that are part of the Robinson-Huron Treaty.

In December, Hennessy ruled the First Nations should have received increased annuity payments under the treaty that was signed in 1850.

The hearings last month were held to work out the details of the ruling, and to listen to legal arguments presented by lawyers for the federal and Ontario governments.

One of those arguments, said Mike Restoule, a Nipissing First Nation member who filed the lawsuit on behalf of the 21 First Nations, is that Ontario is seeking Crown immunity in the case since it was the federal government that negotiated the annuities in the Robinson-Huron Treaty.

“When we say the Crown is liable in her ruling of Phase 1 of the trial, who is that?” Restoule said Tuesday. “Is that Ontario, Canada or Canada and Ontario?”

Another is the doctrine of laches – that the claimants simply waited far too long to take legal action.

“Are the technical defences applicable?” said Restoule on what Hennessy has to decide.

Secondly, the Ontario government is appealing Hennessy’s Phase 1 ruling to the Ontario Court of Appeal that the province is part of the annuity case. That appeal is scheduled to be heard starting in May 2020. If Ontario wins that argument, Restoule said the province is likely out of the lawsuit.

Thirdly, the next date for the hearings will be April 1, 2020, when they are scheduled to run through to June 30. That phase of the hearings will determine how much the annual annuity should be raised and how much retroactive money is involved.

“It’s the determination of annuity payments that should have been paid from the 1800s to today,” said Restoule. “You have to determine what the (Crown) revenues were and what the expenses were. That’s a big task.”

Restoule said Ontario never kept numbers specifically for the Robinson-Huron Treaty First Nations, just the rest of the province.

“We (First Nations) have our personal accounts we’re looking at when the annuities began in the 1800s all the way through to today,” he said. “We need to get those numbers.”

Restoule said as for Hennessy’s eventual decision as to what the new annuity payout should be, that figure could be anything.

“I don’t really have any idea at this point,” he said. “That’s something that needs to be calculated.”

Restoule said the Robinson-Huron First Nations will be looking at retroactive interest concerning its annuity calculations.

The first phase of the lawsuit began in 2017 and hearings were held across Northern Ontario, concluding in Sudbury in June 2018, with Justice Hennessy reserving her decision.

The thrust of the lawsuit concerned the 1850 Robinson-Huron Treaty, specifically increase annuity payments. The 21 Robinson-Huron chiefs argued that the annual $4 annuity paid by the Crown per treaty member had not changed since 1874, 24 years after the treaty was signed, despite a commitment that the annuity was to increase as revenues generated on their territories increased. Originally, the annuity was $1.60 per treaty member.

The chiefs’ statement of claim asked that the Crown deal “liberally and justly” with their claim and engage in negotiations to settle it.

In the end, Hennessy agreed the Crown had an obligation to increase the annuity payments.

“I find that the Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant,” Hennessy said in her ruling. “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 principle of honour of the Crown and the doctrine of fiduciary duty impose on the Crown the obligation to diligently implement the Treaties’ promise to achieve their purpose (i.e. of reflecting the value of the territories in the annuities) and other related justiciable duties.”

Hennessy also said the parties should sit down and hold discussions.

“The Anishnaabe and the Crown have an opportunity to determine what role those historic promises will play in shaping their modern treaty relationship,” she said. “The pressures they faced in 1850 will continue to challenge them.

“However, in 1850 the Crown and the Anishnaabe shared a vision that the Anishnaabe and the settler society could continue to co-exist in a mutually respectful and beneficial relationship going into the future. Today, we arrive at that point in the relationship again. It is therefore incumbent on the parties to renew their treaty relationship now and in the future.”