Ontario is appealing the decision of the Ontario Suprior Court in the Robinson Huron Treaty annuities case.
In her judgement on Dec. 21, Justice Patricia Hennessy wrote, “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."
Hennessy ruled in December that the 21 First Nations treaty members along Lake Huron should be receiving more than the $4 annual annuity they’ve been getting from the provincial and federal governments since 1874.
The federal government has decided not to appeal Justice Hennessy’s decision on the Robinson Huron Treaty annuities case. Ontario has indicated its desire to preserve the ability to appeal the decision of Justice Hennessy including the decision on costs.
“The province has served us with their Notice to Appeal. We are very disappointed with this decision, however, we welcome their willingness to seek a settlement through negotiations,” said Wikwemikoong Chief Duke Peltier.
Batchewana First Nation Chief Dean Sayers said, “the Robinson-Huron leadership believe that Madam Justice Hennessy’s decision is a very solid and fair decision and identifies a clear path forward for renewal and reconciliation. We’re confident that Ontario and Canada will follow through on their legal obligation through a mediated negotiation process.”
The judgement does provide direction on the appropriate approach to achieve reconciliation.
“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.”
Moreover, the judgement points out that the treaty relationship is long term and does reflect the perspectives and laws of the parties.
The parties will be meeting soon to discuss the way forward on negotiations. This will provide an opportunity to determine if Ontario prefers litigation to negotiations as the preferred method for achieving lasting reconciliation and, if Canada can advance rights recognition, respect and partnership with the Robinson-Huron First Nations in the existing treaty relationship.