Judge urges Crown to live up to terms of Robinson-Huron Treaty

The Robinson-Huron Treaty allowed settlement of First Nations land in exchange for a share of resource revenue. It was signed in September 1850 between agents of the Crown and representatives of the Ojibway Nation of northern Lakes Huron and Superior. (File)

Sudbury — A judge is urging the governments of Canada and Ontario to work toward settling a legal dispute centred on a treaty signed in 1850.

The Robinson-Huron Treaty allowed settlement of First Nations land in exchange for a share of resource revenue. It was signed in September 1850 between agents of the Crown and representatives of the Ojibway Nation of northern Lakes Huron and Superior.

Under the agreement, the share of revenue First Nations receive from resources being extracted from the land would increase as revenues increased over time.

The 30,000 people living in the more than 40,000 square kilometres covered by the treaty each receive $4 a year, an amount that has not increased since the 1870s.

In October 2019, Justice Patricia Hennessy ruled in favour of the First Nations involved in the legal battle, ruling the Crown has a legal obligation to increase the revenue sharing under terms of the treaty.

The Phase 2 hearings dealt with the Crown's arguments of immunity and statute of limitations as barring the plaintiffs from getting relief from the court.

"In both instances, the judge rejected the defendants’ positions mostly based on mischaracterizing the nature of the treaty and the relationship set out in the treaty," said a news release from the Robinson Huron Treaty Litigation Fund.

Hennessey urged the sides to find common ground.

“Everyone would agree that resolution in this case is a laudable goal and one that must be encouraged at every stage of the litigation,” she wrote.

"This century old dispute between the federal and provincial Crowns is one of the reasons why no increase has been made to the annuities for over 150 years. This delay has had enormous negative consequences for the plaintiffs, not the least of which is the cost and complications of litigating this dispute based on two centuries of evidence. It is the stage on which this dispute plays out."

The claims by First Nations allege breaches of "express promises on which the signatory First Nations relied when they entered the Treaties," Hennessey wrote. "The Treaties represent unique agreements by the Crown and the First Nations of the Lake Huron Territory and the Lake Superior Territory whose long-term goal was peaceful and respectful co-existence in a shared territory."

"Treaties are part of the constitutional fabric of this country," she continued. "Simple contracts they are not. The Robinson Treaties did not start out as contracts nor did they somehow transform into contracts for the purpose of a statutory limitations defense."

The next step in the case is Phase 3, which will deal with the issue of compensation. The case will also be heard in the Ontario Court of Appeal based on Ontario’s appeal of the Phase 1 decision.

"The Lake Huron Leadership is again requesting the Government of Ontario to abandon their appeal and for Prime Minister Trudeau and Premier (Doug) Ford to do the honourable thing and start good faith negotiations and not use covid-19 as an excuse to continue to do nothing," the release said.