Category Archives: Indigenous People After Contact

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.”

 

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.

 

 

The Augmentation Clause: We need a Canadian Charles Dickens to tell this Story

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

 

I said the result of the augmentation clause was shocking, and that is an understatement.

Charles Dickens, wrote a magnificent book, Bleak House, based on an actual legal case in the Court of Chancery in England that carried on for 68 years.  In that book there are young claimants who were contesting the interpretation of a badly drafted will. At the beginning of the 830-page book, those beneficiaries were running around the court as exuberant youngsters. At the end of the book the proud lawyers announced that finally the case had been settled. Those claimants were now doddering old men and women who had anxiously awaited the final court decision for their entire lives. The case was settled because the estate had run out of money. All the money was expended by lawyers and the English Judicial system.

We need a Canadian writer like Dickens to write the woeful Canadian story of Dismal House.  That would be the story of the Canadian case that took a century and half to be resolved.

In July of 2024 the court case about the Robinson treaties was finally determined when the Supreme Court issued a ground-braking ruling. The Robinson Treaties, also known as the Robinson-Huron and Robinson-Superior Treaties saw Canada secure almost all of northwest Ontario for settlement and resource development.

New in these agreements were provisions made for reserves based on sites chosen by Indigenous leaders.  That does not mean that later there were no disputes about what had been agreed to.

These Robinson Treaties of 1850 are credited with laying the foundation for what later became known as Western Canada’s Numbered Treaties. They showed how treaties could be made and then ignored. Something that has happened all too often in Canada.

In 1850, the British were motivated by the abundance of minerals in the region — copper and iron, in particular — so, unlike previous treaties (which were predominantly peace, alliance or “land secession  ” agreements, the Crown’s representative, William Benjamin Robinson, was somewhat generous  in what he had to offer. He knew his client (Canada and Ontario West) wanted this agreement badly so the region could be developed.

As I mentioned earlier, in exchange for the use of First Nations territories, and extracting valuable minerals from those lands, the communities giving up their rights were offered more than just promises of a reserve and a “continuation of life.” They were offered an annual payment (annuity) that would start fairly low at about a dollar and a half, but would increase significantly via an “augmentation clause” as resources in the region were extracted and profited upon.

 As Niigaan Sinclair summed it up, “In other words, as British North America citizens — soon to be Canadians — profited, so would First Nations peoples.”  When you look at it such a clause, it  is eminently fair in view of the fact that at the outset it is very difficult to determine how much profit the mining corporations would earn from their investment. In a few short year dozens of mines were established and mills and smelters opened up. North West Ontario was booming. In fact, the miners discovered new valuable minerals besides copper including gold, silver, nickel and uranium. The mining companies were getting extremely good value for their money. So was Canada West. But not the First Nations who had made their land available.

For a while things went well. 25 years later, in 1875 the fees paid to the First Nations who signed the Treaty were in fact increased from 1 British Pound to $4 per citizen. But then things changed. No more increases were given. The government stopped paying increased annuities even though the value of the extractions kept rising. In other words, Canada West became increasingly greedy. Hard to believe isn’t it?

As the Supreme Court said, “After years of demands by various chiefs, in 1875 the Government of Canada increased the annuity to $4 per person.”  But that was the one and only increase in the annuities. For the next nearly 150 years there were no further increases. Unlike Charles Dickens case, by then there were no original beneficiaries still alive. 

Besides minerals the land ceded to Canada West also increased in value greatly. As Sinclair said, “Sault Ste. Marie, Sudbury and Thunder Bay are situated on the land in question, not to mention million-dollar cottages owned by elites from across the world.”

 For nearly 150 years the governments failed to pay any increased annuities despite their clear promises to do so. And despite the fact that the Indigenous Leaders made frequent demands for payments.

Everybody wanted a Treaty

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

 

Canada West did not want to negotiate a treaty but everyone else did, including the people to whom it sold the mining rights

Until 1849 Canada West refused to negotiate. As a result, the 3 Chiefs, Oshawano, Shingwaukonse and Nebenaigoching,  went to Montreal to visit the Governor General. The text of their demands were published by the local Montreal newspapers. And they rocked the city. Those demands questioned the right of Canada West to grant leases to the Indigenous  lands which had never been ceded to the crown or anyone else.  When you think about it, such a demand put into question the entire colonial project.  If the government, Canada, or Canada West, could not grant valid leases to business interests what could those businesses be sure they were entitled to?

The 3 Chiefs also vowed to drive off all miners who were illegally on their land. Business leaders were getting very uncomfortable. Business leaders don’t like uncertainty. While the 3 Chiefs were in Montreal another Chief, Peau de Chat from what was then called Fort William (now Thunderbay) travelled to Mica Bay with his warriors. He informed the company there that without a treaty the miners would have to leave.  Canada West told the Chief that should the band not make a treaty they would lose their land without compensation. Again, that was contrary to Canadian law, but as often happens governments are quite willing to ignore the law when it no longer suits them.

In this heated atmosphere the Commissioner appointed by Canada West began to negotiate with the chiefs. The meetings were raucous and contentious. The commissioners spent as much time trying to divide the bands rather than engaging in fruitful negotiations. Again a common negotiating technique by colonial powers.

The Chiefs refused to be bullied and instead sailed a schooner loaded with a small cannon and some others arms which they took from the Crown Lands Agent, into Mica Bay on the north shore of Superior. The chiefs confronted the manager of the mine and demanded he pay the sums they required. The manager saw the Indigenous people as “armed insurgents” and closed the mine.

Fake news soon followed.  Fake news was not invented by Donald Trump. Rumours were circulating about an “Indian massacre” with “hundreds” of dead. This led to Canada West sending a brigade of troops to enforce the law. Now law was important again. By the time the troops arrived the mine  was all locked down and shuttered. The troops remained until October of 1850.  They probably spent most of their time drinking and playing cards through a cold Canadian winter.

The ringleaders of the insurrection though were arrested on December 4, 1849. But the chiefs never made it to trial. The cases were dropped once a treaty was signed in 1850. This was insurrection Canadian style. And to tell the truth, I like this style. The tough actions of the Chiefs, were entirely without any bloodshed, and frankly not entirely without legal right, led to the parties entering into 2 treaties. As the Canadian Encyclopedia said, “The Robinson-Huron and Robinson-Superior Treaties legitimated the mining leases, created reserves, recognized First Nation rights, and set precedents for future treaties. This set a precedent with how Canada would deal with Indigenous People. So did the subsequent lacklustre implementation on the part of the governments.

In 1850, leaders from 34 First Nations signed the Robinson Treaties with the British Crown, giving soon-to be- created Canada and Ontario access to more than 100,000 square kilometres of land via two agreements.

Each treaty contained annual payments (called annuities) to the First Nations along with an “escalator or augmentation clause.” The augmentation clause  in each treaty was designed to raise the annuities as profits from the extractions of resources increased. But as so often happened, the governments did not like the augmentation clauses. The chiefs were very wise to insist on such a clause. Sadly, as so often happened the Crown refused honour it.  Instead, it ignored the clauses as long as possible. As a result, the honour of the crown, considered so important in Canadian constitutional law was badly besmirched. Those clauses eventually became the centre of litigation which was not resolved until this year, 2024, 174 years later, by the decision of the Supreme Court of Canada. And the result was truly astonishing.