More than 30,000 Anishinaabeg are suing Canada and Ontario for annuities payments that have stayed stagnant at $4 per year for nearly a century and a half.
The 21 First Nations communities involved in the landmark lawsuit are descendents of the signatories of the Robinson Huron Treaty. A win by the plaintiffs may directly impact how natural resources are shared in Ontario, and how other annuities cases are settled across Canada.
"People are very elated that we're finally taking the case to the courts...They're saying it's about time," plaintiff Mike Restoule, speaking from his home at Nipissing First Nation, Ontario, told VICE. "They're elated there's finally going to be some resolution to the dispute that's been going on for over 160 years."
While signatories and their descendents have petitioned the government since the treaty was signed in 1850, the effort to file a lawsuit began in 1992. "The difficulty was to unite the chiefs to bring forward a concerted effort to move the case into the courts," he says. After several failed attempts to negotiate with the government, the chiefs chose instead to borrow money and file a statement of claim, which they did in 2014.
"There's a lot at stake here," says Restoule.
The Robinson Huron Treaty territory stretches over 43,253 square kilometres over the northern shores of Lake Huron, encompassing the cities of Sudbury, North Bay and Sault Ste. Marie. The area became coveted for its vast mineral deposits and timber in the 1840s as settlers expanded west.
Surveyors purchased licenses to mine the region in the 1840s, even though the land remained the sovereign territory of the Anishinaabeg who lived there. Tensions escalated, and following a violent clash between a group of Anishinaabeg and miners, the government of the time sent William Benjamin Robinson, a former fur trader and member of the colonial legislature, to negotiate a deal. Two treaties were signed by the summer of 1850: the Robinson Huron and Robinson Superior Treaties. The agreements were so successful they were used as templates for subsequent treaties, including all the numbered treaties that span as far west as BC and north to the Northwest Territories. This is why a lawsuit involving these treaties could have a broader impact.
The Robinson Huron deal included a promise by the Crown to protect the First Nations' hunting and fishing rights, and to pay each member of the community a sum of $2. In 1874, the government agreed to raise that payment to $4. The number has not budged since.
At the heart of the litigation is what's known as an "augmentation clause." The plaintiffs say this clause stipulates the Crown should increase the amount paid to the signatories and their descendents if revenue generated from the land increases.
According to Stats Canada, revenue from the forestry and logging industry exceeded $1 billion in 2015. Total revenue from goods manufactured surpassed $13 billion. The province earns money from these industries through royalties and licenses. How much money the province has made off the land since 1874 remains an open question, as does how much these First Nations are potentially owed in back pay.
"The number is probably pretty staggering. I've done some analysis on it but I wouldn't even want to hazard a guess," says Ron Maurice, a lawyer who specializes in specific land claims. In 2016, he helped Beardy's and Okemasis First Nation in Saskatchewan win an annuities lawsuit, and says that similar lawsuits are on their way.
"If we start from the idea that the expense is staggering, if not crippling in magnitude to negotiate for the past damages and losses, then I think it maybe puts the impetus on the government, now more than ever, to restructure our financial and political relationship," says Maurice. Currently, the Crown does not link annuities payments to money generated from resource development.
Peggy Smith, professor Emerita at the Faculty of Natural Resources Management at Lakehead University, says that revenue sharing models do exist in Canada. The Paix de Brave, for example, involves Quebec and the Grand Council of the Crees, and established that money made from mining, hydroelectricity and forestry on Cree territory should be shared with Indigenous communities. Smith says while Ontario has been talking about revenue sharing for more than ten years, it has been slow to make headway.
"If the court rules that these annuities payments were based on the principle of sharing land and resources and that they were in acknowledgement that the Crown was going to pay some kind of a rent to Indigenous peoples for the use of the land, then that's going to push the whole discussion around revenue sharing forward," says Smith. "It might put some heat under provincial governments to resolve those issues."
The Ontario Ministry of Indigenous Relations and Reconciliation and INAC were contacted but declined an interview for this story. Both stated they prefer negotiated outcomes to litigation.
"In essence it would correct a historic injustice that has been going on for so long," says Smith. "People in Indigenous communities in the rural north, they say over and over again, it's a terrible situation to be in, to be sitting on a reserve in the middle of a forest in poverty, with no employment and no access to resources, on our treaty land, and watch these trucks hauling logs through the reserve to go to a mill somewhere else and not being able to get any share of that benefit. I think it's long overdue to have this discussion."
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