Category Archives: Indigenous Issues

Treaties from and Indigenous Perspective: Renewing the Treaty Relationship and Restoring the Crown’s Honour

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

The Supreme Court of Canada in the Robinson Treaties case also commented on treaties from the Indigenous People’s perspective. It is sometimes a little different from that of other Canadians. On behalf of the unanimous Supreme Court Justice Jamal said,

 

I am also guided by the fact that the Robinson Treaties were not only about securing land in exchange for a monetary annuity. As the trial judge found,

 

“[f]rom the Anishinaabe perspective, the central goal of the treaty was to renew their relationship with the Crown” …. For the Anishinaabe, “the Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances”

 

 

Actually, the Indigenous people that brought forward the claim on behalf of their people, said it best in their formal claim,

 “What the Treaty promises is . . . an ‘ongoing relationship’ with procedural and substantive aspects. The Crown cannot fulfill its duty by paying an arbitrary sum of money without engaging its Treaty partner”

Meaningful consultation and negotiation were essential, from their perspective, to a proper treaty relationship.  As a result, the Supreme Court did not specifically tell the governments of Canada and Ontario how they had to satisfy the claims of the Indigenous People of the Superior Treaty, but it told them how they had to go about it and if the Indigenous claimants are not satisfied within 6 months they can bring the matter back to the court for final determination by it. If that becomes necessary however the governments will have failed to “to effectively renew the treaty relationship and restore the honour of the Crown.” By giving the governments a short time line, it was giving the government a chance to encourage the restoration of the treaty relationship. I thought this was very wise on the part of the Supreme Court.

Justice Jamal gave one more final word to the parties:

“Although I recognize that the augmentation promise does not expressly require the parties to negotiate and agree on an annuity increase, it is undeniable that negotiation and agreement outside the courts have better potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown. After all, historic treaties represent the “establishment of a relationship of trust and mutual assistance” between Indigenous peoples and the Crown, but the details of that relationship “must be the object of permanent negotiations, in view of fleshing out the general principles governing the relations between the two peoples”

 

In this way, the judgement of the Supreme court allowed the parties a final chance to restore trust, a crucial ingredient of a healthy treaty relationship.  We will have to wait to see if it is possible for both governments to do that.

 

In this case the two governments, Canada and Ontario, did the worst thing they could have done. For 150 years they refused to negotiate in good faith with the First Nations. They stuck their heads in the sand.  And now we will have to pay the price.

 

I must admit I have my doubts that negotiations will succeed because the relationships are so bad. It’s like a husband and wife who can no longer talk to each other. The future looks grim. Lets hope I’m wrong. Canada and Indigenous people must really solve this problem that seems unsolvable.

 

 

True Reconciliation

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

The issue of reconciliation was also relevant to the decision of the Supreme Court of Canada in the case Ontario (Attorney General) v. Restoule  often called the Robinson Treaties case.

Canada has apologized to its Indigenous People through a declaration to that effect by its Prime Minister at the time Stephen Harper. It also accepted the recommendations of the Truth and Reconciliation Commission report that was delivered to it by the Commissioners. In that process Canada promised to work towards reconciling with the Indigenous People of Canada whom it acknowledged had been badly treated by Canada.

From time to time, the Supreme Court of Canada has spoken about Canada’s duty to reconcile with its Indigenous People. It did so as well in this very recent  case  involving the Robinson Treaties of Canada. When the court considered to what extent if any, and how, it would intervene in the Robinson treaties it also reflected on the proper role for courts to play in Canada’s legal system as part of the judicial branch in this reconciliation process.

It accepted what a previous court had said, namely, “[r]econciliation often demands judicial forbearance. Courts should generally leave space for the parties to govern together and work out their differences.” In other words, sometimes it is better for the court to stay on the sidelines and let the parties work it out. Such working out is often best for all concerned, and in the case of treaties, it is often best for the country to have its courts allow them the space to reach an amicable agreement, rather than having the court impose its view on the parties.  That is how the parties hopefully can learn to reconcile.

In other words, the court concluded that through negotiated settlements, in good faith the parties would be much better equipped to reconcile with the First Nations. That is what the First Nations of the Huron Robinson Treaty did.  The court also noted that “true reconciliation, is rarely, if ever, achieved in courtrooms.”

In fact, in the Robinson Treaties case, Madam Justice Martin said during the oral arguments, “accountability most certainly does take place in a courtroom.” Of course, that does not mean the courts should refrain from doing their job. In some cases, courts must do their job. Sometimes it is essential that they do.  As

Mr. Justice Jamal said,

“Indeed, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance… As in the present case, litigation may sometimes be the only way to bring an intransigent party to the negotiating table with a view to reaching a settlement and advancing reconciliation.”

 

For example, when it takes a government 150 years to do its job, clearly required by the Treaty it signed, the court must compel that government to do the right thing.

Justice Jamal wisely put it this way,

“Although it is not the business of the courts to force the Crown to exercise its discretion in a particular way, it is very much the business of the courts to review exercises of Crown discretion for constitutional compliance — to ensure that the Crown exercises its discretion in accordance with its treaty obligations and the constitutional principle of the honour of the Crown. It is appropriate in this case for this Court to order the government to repair the breach of its constitutional obligations, while leaving it up to the executive branch to determine the best means of doing so.”

 Sometimes the court must just make it clear to the government, that it must do what it has promised to do in a sacred treaty. We hope the parties can work it out as that might help the reconciliation process. We must wait and see.

 

Given that Canada took 150 years to agree to do what it ought to have done from the beginning, this sounds a bit like Polyannish wishful thinking.  I hope I am wrong.

Quantum: A Wicked Problem

2024 Trip to Eastern Canada, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

In such difficult and complicated circumstances of trying to determined the proper compensation for  a large number of First Nations who had been treated dishonourably for 150 years as was the case for the Robinson Treaty First Nations, how can a court determine, or the government for that matter, determine, the proper amount to be paid?  Clearly that is a wicked problem. A problem brought on entirely by the dishonourably conduct of the Crown.  To give you a bit of an idea about how much money is involved in the dispute you should consider that the Robinson-Huron Treaty case but not the Robinson-Superior case,  has been settled by agreement out of court by the First Nations involved and the government of Canada and Ontario.

Canada, Ontario, and the Huron plaintiffs  on June 17, 2023, publicly announced that, as a result of negotiations that had been ongoing since April 2022, they had successfully concluded out of court negotiations  to settle those claims under the Robinson-Huron Treaty for $10 billion! Each of Canada and Ontario agreed to pay $5 billion from each of Canada and Ontario. The proposed settlement was described in a joint press release as “a major milestone in the ongoing collaborative work to renew the treaty relationship and honour a treaty promise that dates back to 1850”

The other treaty claimants are demanding for compensation of the breach of the augmentation clause an astounding $126 billion! The Supreme Court of Canada acknowledged that “This figure is equivalent to approximately two-thirds of the total reported annual revenue of the province of Ontario, from all sources, in the 2022-23 fiscal year.’ A judgement for $126 billion might bankrupt Ontario and severely harm Canada.

Justice Jamal acknowledged in his judgment on behalf of a all 9 judges of the Supreme Court  that

“Naturally, where the Crown has defaulted on its payment obligations for almost 150 years, the amount due will be substantial. The Anishinaabe signatories cannot now be short-changed by the Crown’s sticker shock, which is solely the result of the Crown’s own dishonourable neglect of its sacred treaty promises.”

 

 

 

Justice Jamal on behalf of the entire Supreme Court also acknowledged that the Augmentation Clause constitutes a promise by the Crown to exercise its discretion as to possible future increases to the annuities it pays beyond $4 per person where it can do so without incurring a loss. And he said,

“This discretion must be exercised honourably, but also in accordance with Her Majesty’s desire “to deal liberally and justly with all Her subjects” — to do justice to the Anishinaabe treaty partners and Her Majesty’s other “subjects”. Accordingly, in exercising its discretion, the Crown will have to engage in complex polycentric decision making that weighs the solemnity of its obligations to the Anishinaabe and the needs of other Ontarians and Canadians, Indigenous and non-Indigenous alike. This is well within the expertise of the executive branch, but is much less within the expertise of the courts.”

 

The Crown (government) must act for the benefit of all Canadians too. Not just Indigenous people. This amount must now be negotiated within 6 months or less after which the government must advise how much it will pay the Indigenous claimants and on what basis that amount has been determined.

This should be fun Not.

The Proper Role of the Courts in settling disputes

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

The case involving the Robinson Treaties  went all the way to the Supreme Court of Canada two times [the first time for the courts to determine which government should pay] ended by making some remarkable decisions  about the proper role of the courts in treaty disputes.

The Supreme Court in the most recent case, relied on the writing of Law Professor Kent Roach about Aboriginal rights as follows:

 

“. . . courts that enforce Aboriginal rights must also consider a range of other factors and competing interests. Courts should provide remedies that respect institutional roles including the limits on the judiciary. In many cases, courts are hopeful that issues can be resolved out of court by a process of consultation and negotiation. This approach is particularly attractive in the Aboriginal rights context because of its potential to allow Aboriginal nations to exercise some degree of self-determination and because of the complexity of the issues and the broad range of reasonable solutions and forms of reconciliation. At the same time, Aboriginal rights may ultimately have to be enforced by the courts, albeit in a way that respects institutional roles and is fair to all those affected.”

 

That really is uncommonly wise. The Supreme Court was very reluctant to impose its view of how the Crown should exercises its discretion to compensate the Indigenous plaintiffs. It wanted to ensure that the legislature, and the executive branch, and the judiciary all stayed in their own lanes.

 

The Supreme Court even acknowledged its own limitations in this respect. It realized that it would be a very difficult task to determine how much the Crown should pay for 150 years of malfeasance. It suggested the Government would be best equipped to make such a complex analysis, but it recognized that after 150 years of dishonour it might be difficult for the First Nations to accept the government’s decision. The Mr. Justice Jamal on behalf of the unanimous Court put it this way:

 

“The amount by which the Crown might increase the annuity is a polycentric and discretionary determination that will inevitably reflect many social, economic, and policy considerations that may change over time, affecting the frequency and nature of net revenue and annuity calculations. Determining the amount of compensation owed for the past will involve similar considerations. I stress that courts are not incompetent or unable to entertain these considerations when necessary. Indeed, I acknowledge the jurisdiction of the courts to order compensation… if appropriate to do so. However, I also recognize that courts are generally not well equipped to make polycentric choices or to “evaluate the wide-ranging consequences that flow from policy implementation”

 

As a result, the Supreme Court said courts must be modest and humble and “accordingly, courts should exercise considerable caution before intervening in such circumstances.”

 

Discretion

2024 Trip to Eastern Canada, Aboriginal Law, Colonialism

 

There was one tricky issue on the appeal. The Treaties gave the Crown [the government] to exercise its discretion to determine whether or not it had earned enough profits to warrant paying the First Nations, but that did not mean it could exercise that discretion without any parameters. It has to exercise its discretion in a way that aligns with the Honour of the Crown and its constitutional role and its duty to bring about reconciliation. As Justice Jamal said, on behalf of the entire court,

“This Court has long recognized that “there is no such thing as absolute and untrammelled ‘discretion’…in a country founded on the rule of law and in a society governed by principles of legality, discretion cannot be equated with arbitrariness”. Our law requires discretion to be “exercised within a specific legal framework”, and recognizes that “[d]iscretionary acts fall within a normative hierarchy…”

 

The Supreme Court also endorsed a law text which said,  ‘a claim of unfettered discretion by government is “constitutional blasphemy. . . . Unfettered discretion cannot exist where the rule of law reigns.”

 

Therefore, even though the government could exercise its discretion on how much to pay, it can’t pay whatever it wants to pay. It must follow the rules the court set out. It must act honourably in the interests of the First Nations and all of Canada.

 

The Honour of the Crown:

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties

 

We must always remember that it is a fundamental principle of English law (and now Canadian law) that because the Crown owns the property of the First Nations as a trustee for them, the crown has a fiduciary obligation to  those nations to act in their best interests. In a word the Crown must act honourably in dealings with Indigenous People.  And would all of us not expect exactly that? The Crown must act fairly, justly, with integrity to its beneficiaries.

Sometimes the cost of dishonour is incredibly high. The case of the Robinson Treaties was an astonishing example of this. Because of the delays of the Crown for more than 150 years, the amounts it will now have to pay will be in the billions. Probably, many billions. Who is to blame? The Governments of Canada and Ontario and the people  who elected them. As Justice Jamal said for the unanimous Supreme Court, acknowledging it will be substantial,

“The Anishinaabe signatories cannot now be short-changed by the Crown’s sticker shock, which is solely the result of the Crown’s own dishonourable neglect of its sacred treaty promises.”

 

As Sarah Ritchie reported in the Winnipeg Free Press, 

“The Crown must increase the annual payments but the decision does not say by how much. Instead, the ruling sets a path forward for one of the two plaintiff groups that has not already reached a settlement with the governments.”

 

The beneficiaries of the  other Robinson- Huron Treaty settled out of court  finalized a deal in February that will see the governments of Canada and Ontario pay $5 billion each to make up for failing to increase the payments since 1875. The two sides are still in negotiations to determine how much the annual payments will be going forward.

The Crown has been ordered to negotiate a settlement with the beneficiaries of the Robinson-Superior Treaty by Jan. 26 next year.

Sometimes the price of disgraceful conduct is high. This time Canada will have to pay. Too bad! We bad!

What does all of this mean for reconciliation?  This how Niigaan Sinclair put it:

“In a world where the honour of the Crown is supposed to exist, there are some big questions, decisions and misdeeds that have to be reconciled before reconciliation is possible.”

 

 

How can someone be expected to negotiate with someone who has acted dishonourably to them and has not acknowledged it? Maybe its impossible. All 9 judges of the Supreme Court of Canada ruled that Canada had acted dishonourably to the 34 Nations who signed the various Robinson Treaties for more than 150 years. Now it is up to Canada to fess up and pay up before it can expect the First Nations to Reconcile.

And the amount will bite.

 

 

An Empty Shell of a Treaty Promise

2024 Trip to Eastern Canada, Colonialism, Exploitation, Indigenous People After Contact, Indigenous Treaties

 

 

The Indigenous People who entered into the Robinson Treaties got screwed by the Crown (governments of Canada and Ontario). There was no doubt about that. But there was one hope for the First Nations. The courts. Starting in 2001 the First Nations hired lawyers and fought for justice in the courts after more than a century of trying to do that on their own.  They argued the Crown (government) had never fulfilled its legal obligations it agreed to. After decades of negotiations, motions to court, and trials the Supreme Court of Canada on July 26, 2024, about 2 months before our journey commenced, held unanimously that the Crown had acted “dishonourably.”

 

The Supreme Court decision noted that the Crown has derived “enormous economic benefit” from the land through mining and other activities over more than 150years, while the First Nations communities who entered into the treaties,  have suffered with inadequate housing and boil water advisories. The lawyers for the First Nations said the people of those nations lived in abject poverty. As Sarah Ritchie reported, “Representatives of the Anishinaabe communities who came to the Supreme Court building in Ottawa to hear the decision hugged and wiped away tears when they heard the result.” Lawyers for the plaintiffs said people have been living in abject poverty.

 Why did the government delay so long? Frankly, this is historically how the government has repeatedly acted  with Indigenous parties. The court records are filled with such disreputable conduct by our lawful representatives.

As Mr. Justice Jamal said on behalf of a unanimous Supreme Court:

 “Today, in what can only be described as a mockery of the Crown’s treaty promise to the Anishinaabe of the upper Great Lakes, the annuities are distributed to individual treaty beneficiaries by giving them $4 each…For almost a century and a half, the Anishinaabe have been left with an empty shell of a treaty promise.”

 

As Sarah Ritchie said in an article in the Winnipeg Free Press,

“The Supreme Court said the Crown had a mandatory obligation to raise that amount when the economic circumstances warranted and failure to do so undermined the spirit and substance of the treaties. The Crown made a mockery of its treaty promise to the Anishinaabe in Ontario by freezing annual payments to First Nations for 150 years and it now must make things right, the Supreme Court of Canada has ruled.”

 

For over a century the governments of Canada and Ontario, failed to increase the annuities to the First Nations of the Robinson Treaties as it had promise to do, without legal justification, while the Indigenous People suffered. And of course, their children suffered the most.

 Yet, continuously I hear friends of mine complain, no matter how often I try to correct them, ‘the government is handing our money to the Indians again.’ No! These are legal obligations. This is not charity. Nor handouts. Canada is finally doing what it has an obligation to do for a century and half!

Frankly, this is a recurring theme in litigation by Indigenous people against the Crown. It is clear by now that the Crown often—much too often—did not act with honour in its dealings with indigenous people. Often it ignored its obligations freely incurred under treaties it negotiated with Indigenous nations.  Sadly, for Canada, it is now being required to honour its obligations under many agreements at great cost to Canada. Frankly, the conduct of Canada was shamefully. I would call it shocking if I were not so accustomed to it.

 

Justice Jamal speak for the unanimous Supreme Court, said,

“(The Crown) must increase the annuity under the Robinson treaties beyond $4 retrospectively, from 1875 to the present…It would be patently dishonourable not to do so.”

 Who could disagree with that? Guess how much that will cost the people of Canada and Ontario?

Governments Renege

2024 Trip to Eastern Canada, Colonialism, Exploitation, Indigenous People After Contact, Indigenous Treaties

 

The picture of Canada and Indigenous People started to get ugly.

 Despite the obvious benefits Canada and Canada West (Ontario) received from the Robinson Treaties and the fees generated by selling extraction rights, Canada West did not want to pay any more  the 34 First Nations despite its promises to periodically increase the annual annuities. The First Nations frequently complained, but the complaints fell on deaf ears.

We must also remember, that  for many years the First Nations were not allowed to hire lawyers to make their cases in court. The Indian Act passed by the Canadian Parliament prohibited that from 1927 to 1951 by not allowing anyone to solicit funds on their behalf to hire legal counsel. As Bob Joseph explained in his book, 21 Things You May Not Know About the Indian Act,

“This made it illegal for Indians to hire lawyers or raise money to hire legal counsel.  It also meant jail sentences for anyone who lent Indians money for lawyers or legal counsel.  This amendment [to the Indian Act] coupled with it being illegal for Indians to form political organizations, created a very real barrier to Indians to form organizations, created a very real barrier to Indians pursuing land claims and human rights actions.”

 

They had to rely on the goodness of the governments, and sometimes goodness was absent. This is how settler colonialism operates. The injustice is startling, but the colonial powers assumed it as their divine right. As Chief Joe Mathias and Gary R. Yabsley said in their book In Conspiracy of Legislation: The Suppression of Indian Rights in Canada (1991),

“Indian nations were therefore denied those fundamental rights that are taken for granted in any democratic system. They were, as a matter of colonial and provincial policy, denied rights to lands they occupied for centuries. This exclusion from the land was extended through the discriminatory provisions of colonial and provincial legislation. And they were prohibited by federal law [from] seeking a legal remedy for this injustice.”

 

Colonialism operates that way. Through law and policy exploitation is institutionalized.

 As Niigaan Sinclair explained about the First Nations affected by the Robinson Treaties:

“For over a century and a half, citizens from 34 First Nations watched billions of dollars of resources being taken from their communities, only to receive four loonies each.”

 

And it need not be said that during this nearly 150 years the Indigenous communities were fraught with the problems of poverty while everyone else profited handsomely from using their land! And people wonder why the First Nations could not prosper.