It was a game-changing year for the 21 First Nations under the Robinson Huron Treaty of 1850, with the provincial and federal governments proposing a $10 billion dollar settlement in the historic annuities case ongoing since 2014.
The settlement is a result of the Robinson Huron Treaty Litigation Fund team, and their filing of an Annuities Statement of Claim, a claim for resource revenues.
When settlers arrived on the territory of the First Nations, they were driving economic growth that did not belong to them, encroaching on traditional lands. In order to ensure that the lands were shared equally, a treaty was signed in 1850.
Under the treaty, the Crown promised to pay a perpetual annuity of £600 ($2,400), which in 1850 worked out to approximately $1.60 per person. But the Crown provided an additional incentive for the Anishnawbek communities to sign the treaty.
Called an ‘augmentation clause', it meant if further wealth was generated in the territory, the Crown was obligated to increase the annuity.
But the annuity was not increased until 1874, despite the economic growth on the land and then, it was only $4 per person. It remains the same today, but could change soon under the new settlement agreement.
The annuities case was litigated in three stages. Stage 1 and Stage 2 found Hennessy deciding in favour of the RHTLF.
In 2021, the Government of Ontario appealed Justice Hennessy's Stage 1 and 2 decisions.
The Stage 1 appeal focused on Justice Hennessy’s interpretation of the augmentation clause that was upheld by a majority of the court of appeal. The Stage 2 appeal related to Ontario’s technical defences on limitations and Crown immunity. These defences were unanimously rejected by the court of appeal.
Ontario then submitted an appeal to the Supreme Court of Canada seeking to overturn the trial and court of appeal's decisions. These hearings happened Nov. 7 and 8 and at the time, Gimaa Angus Toulouse, a RHTLF trustee and chief of Sagamok Anishinabek, told Sudbury.com the hearings focussed on treaty interpretation, or more specifically, what body should be tasked with interpreting the treaty: the courts or the Province of Ontario. The decision from the nine justices should be available within six months.
The $10 billion proposed settlement, announced in June, was negotiated ahead of Stage 3.
The next steps were announced following the final First Nation’s signature on the settlement agreement. The RHTLF set a “goal timeline” of February 2024 to receive the $10 billion settlement amount from the governments of Canada and Ontario, and set spring/summer of 2024 as the target for communities to begin per capita distributions.
Ontario appealed the decision made by the Ontario Court of Appeal, at the same time as the settlement was being negotiated. “Go figure,” said Toulouse.
Toulouse said he was disappointed in the decision, and even though it doesn’t affect the proposed settlement, “it does impact our future.”
That’s because the proposed $10 billion settlement is to cover the amount the annuity was never raised over the decades since 1874. There is still a new annuity to be negotiated, to reflect the resource value going forward, and the results of this case could affect those negotiations.
“The future could be worth more than the past, so we need to sit down and negotiate a new annuity that would replace the $4 annuity, we still have to look at the future” he said.
Part of the work now and to come in 2024 is to ensure that each nation and treaty members receives the settlement in a way that benefits both the collective and the individual.
At first, engagement sessions were hosted by the Office of the Mizhinawe, led by Justice Harry LaForme.
But in early September, it appeared something had happened behind the scenes. The office was closed, the position ended, and RHTLF released a statement.
“The Chiefs have decided to discontinue the role of Mizhinawe. In the fall, we will continue to hold sessions with the communities at a local level to provide more information and answer your questions.”
The RHTLF release states the sessions opened important conversations. “We heard from you – our community members – about the need for more communication at a community level.”
It also states they heard from “many” community members that they want to “communicate directly with your Chiefs and Councils to have your questions answered and provide your input into discussions about the use of the compensation funds.”
In a confidential letter obtained by SooToday, Robinson Huron Treaty Litigation Fund (RHTLF) Chair Mike Restoule took former Office of Mizhinawe leader Harry LaForme to task for what he called his “extremely negative” resignation letter and interim report on the community engagement sessions which took place in First Nations across Robinson Huron Treaty (RHT) territory over the course of the summer.
“The overly negative tone in your interim report is one of the main reasons the chiefs and trustees decided to discontinue your role and dissolve the Office of Mizhinawe,” said the letter to Laforme.
In this Sept. 12 letter, Restoule states the RHTLF had a meeting Sept. 1 — eight days before LaForme sent his resignation letter — and voted to end LaForme’s position. That decision, Restoule writes, was based on the report contents, and what he said is the timing of the disclosure that the Toronto-based law firm that LaForme works for as senior legal counsel, Olthuis Kleer Townshend LLP, “has been retained to provide independent legal advice on the proposed settlement agreement.”
In the letter to LaForme, Restoule seems to suggest that the involvement of LaForme’s employer in the situation creates a conflict of interest, though he doesn’t use that term.
“It would have been appropriate for you to make this disclosure to us beforehand, so we could discuss it and agree on a way forward,” Restoule said in the letter.
It is unknown what legal advice was hired to provide. LaForme notes in the report that “my office” would be used to further information findings and recommendations, but it is unclear if LaForme’s reference to “office” is a reference to the Office of the Mizhinawe or Olthuis Kleer Townshend LLP, the legal firm he works for. The monies for the Office of the Mizhinawe do not come from the settlement legal fees.
But it is in the wake of LaForme’s interim report that the Sept. 1 meeting of the RHTLF and the Litigation Management Committee (LMC) occurred.
In his Sept. 9 resignation letter, LaForme states attendees at the Sept. 1 meeting provided him with accounts that describe a raucous meeting with “chiefs being shouted down by other chiefs, a chief being publicly castigated by a member of the legal team,” and “a lawyer for a First Nation being thrown out of the room.”
Why LaForme’s interim report elicited such a strong response is unclear. LaForme hasn’t spoken publicly about it and neither have the chiefs who attended the meeting, from what Sudbury.com has been able to learn.
Laforme said that at the meeting, “resolutions to end my tenure as the Mizhinawe” were also initiated by members of the legal team and a chief in addition to “various descriptions of behaviour” attributed to the litigation team, “the likes of which I have not heard since I presided as a judge over proceedings involving organized crime.”
Again, because of the limited publicly available information, it is unclear what allegations were levelled against the litigation team or what exactly LaForme means when he references organized crime cases.
He states in his resignation letter he received no communication from RHTLF after he submitted his report.
Since that time, several of the 21 First Nations have held additional consultations sessions. Once the settlement has been finalized, it will be distributed to the 21 nations from the RHTLF Trust based on a formula agreed to by the RHTLF and their councils.
Jenny Lamothe covers vulnerable and marginalized communities for Sudbury.com.
