‘Time for the governments to reject colonialism and embrace the facts,’ says Chief Sayers

By Marci Becking

ROBINSON HURON TERRITORY – The Robinson Huron Trust announced that Madam Justice Hennessy released her decision concerning Phase Two of the case.

“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 principle of the 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.”

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“The Anishinaabe and the Crown now have an opportunity to determine what role those historic promises will play in shaping their modern treaty relationship. The pressures they faced in 1850 will continue to challenge them. However, in 1850, the Crown and the Anishinaabe shared a vision that the Anishinaabe 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.”

Ogimaa Duke Peltier of Wiikwemkoong Unceded Territory says that Phase One has not caused Canada and Ontario to move towards a settlement.

“Our interpretation of the settlement is who has responsibility. It is our people who suffer the consequences of no increase in over 150 years,” says Ogimaa Peltier. “It is now time for the Crown to get serious about this annuity.”

Chief Dean Sayers of Batchewana says that it is time for the governments to reject colonialism and embrace the facts.

“The long-term goal [of the treaty] was peaceful and respectful co-existence in the territory,” says Chief Sayers.

Assembly of First Nations National Chief Perry Bellegarde says that this is a huge victory.

“This is a very big case. Based on resources that have been extracted from our land. It was a nation-to-nation relationship sacred covenant that was made through ceremony. This could serve as a precedent and a role model. Honour of the Crown is key. The Crown has an obligation to honour the treaties in spirit and intent.”

Many people are wondering what the adjusted compensation amount will be in Phase Three.

David Nahwegahbow, legal counsel, says that the determination will take expert testimony, experts reviewing records to look at what the revenues and expenses would have been over the years.  There has been no determination yet what that figure will be.

“This case is unique because the provisions in this Treaty is unique,” says Nahwegahbow. “No one else has an augmentation clause. We are hopeful that both Canada and Ontario will want to negotiate and only Ontario has appealed. Part of the complication with the ability to get into negotiations is the liability between Ontario and Canada. They haven’t agreed amongst themselves what part of the Treaty belongs to Ontario and what to Canada; which of the Crown entities is liable to pay or what their share of the responsibility to pay is.”

Joseph Avray, legal counsel, says that we need to look at the fair share of net revenues from the territory.

“Fundamentally, the Crown is obligated to ensure that our clients obtain a fair share of the value of the resource of the territory,” says Avary.

Mike Restoule, Chair of the Robinson Huron Trust, says that since the creation of the Indian Act, all of the First Nations in the Robinson Huron territory have lived under a program administration funding from the Canadian government and some from Ontario as well.

“If we had been properly been given annuity, it would improve [First Nations’] living conditions,” says Restoule. “Today, we still live under the funding terms of the Indian Act. Some First Nations have done things to enrich their situations. Time for Canada to come forward.”

Chief Sayers says that he thinks about the continued preservation of language, culture, land and law – things contained in a nation.

“We haven’t been able to do our plans due to the [confines] of this program. Our people have lived in disparaging conditions. That was never the agreement. Ontario government should recognize that there is a smooth, well-paved road for us to find a resolution that is more aligned with the treaty relationship of the people who live on our land today. Four dollars a year is unethical and immoral.”

Chief Scott McLeod of Nipissing First Nation added, “Even if the full value of the annuities were to be handed over, Canadians have to understand that over 150 years that we didn’t have those payments and fair share of resources, and we were sent into a spiral of issues. Even if we get that money, we still have to dig ourselves out of that hole. We have a lot of work to do. We have been forced down that rabbit hole for so long now that it will take some time for us to be on a fair playing field.”

The true cost of litigation is not known, but David Nahwegahbow says that up to the completion of Phase One, it was $9 million.

“It was a long trial,” says Nahwegahbow. “The Court of Appeal has decided to have a panel of five judges on this case. There were a number of interveners, including the Assembly of First Nations. Important decisions made in the province of Ontario. We feel very strongly about the strength of our case. Much of the decisions by Justice Hennessey in Phase One are very fact-based. Strong going into court of appeal.  Perhaps Ontario will adjust their willingness to negotiate. They will likely uphold the decision. We will be moving ahead simultaneously on court of appeal decision whether or not there is a decision.”

Ogimaa Peltier thinks the appropriate response from Canada, Ontario and citizens should be the acknowledgement and respect of the treaty relationship.

“It’s been in reports – the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission [of Canada].  We are all Treaty People.  There are on-going responsibilities.”

It is quite an accomplishment to get 21 First Nations to move forward in one cohesive direction. Chief Sayers says that there are 21 lenses that the world is seen through.

“Each First Nation in the Robinson Huron Treaty has different priorities to come up with a common ideology and collective perspective on the augmentation of the annuities really is remarkable. I am really proud of leadership among the 21 First Nations. Quite the legacy we have inherited. Spiritual, empowering and connecting. We will push where we need to be in the relationship.”

Chief Angus Toulouse of Sagamok Anishinawbek says that his community members are somewhat educated in the treaty process.

“We want to ensure that they have input.  We’ve had many forums to get their blessing and they demand accountability. Commitment from all leadership. Now we have more reason to celebrate!”