Justice Hennessey released her long awaited decision concerning phase 2 of the Robinson Huron, Robinson Superior Treaty annuities case.
Justice Henessy agreed with the claimant’s arguments that Treaties are not simply contracts and rejected Ontario’s defence that “Crown Immunity” applied to the Robinson Treaties as well as rejected Ontario’s defence that their Limitation statutes applied to Treaties.
Justice Hennessey rejected both of these Crown arguments stating that, “for the Anishinaabe, the Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances”.
The Robinson Huron Treaty of 1850 committed the Crown to the payment of Treaty annuities. The Treaty provided for the augmentation of annuities as the lands produced a revenue that would support increased annuities without incurring loss. This clause in the Robinson Huron Treaty provided for “resource revenue sharing”.
“Every truckload of logs that comes down that TransCanada highway and drives past our First Nation villages, every train full of logs that we see on the tracks, all of the mines and wealth being generated with an absent benefit to us as the Original Peoples reminds us of the promises that were made to us – that we would continue to benefit from our lands and resources. Justice Henessey’s decision around phase 2 of the trial brings us closer to seeing this obligation come to fruition”, commented Chief Dean Sayers.
Because of the failure by the Crown to live up to the terms and spirit and intent of the Treaty, the Robinson Huron Treaty Chiefs had no other recourse than to enforce the Treaty annuity provisions in a court of law. The plaintiffs (21 First Nations) had brought this action on behalf of the beneficiaries of the Robinson Huron Treaty.
The litigation is against both the Canadian Government and Ontario Government and they are cross-claiming against each other.
“Finally, the Crown’s courts are starting to demand that Canada and Ontario honour those historic promises. Our people were never meant to live in poverty on our lands. We were to continue to benefit as we were in the habit of doing. Our ancestors will be smiling as they look here today”, added BFN Councilor Gary Roach.
The Phase 2 decision again encouraged settlement rather than litigation. Phase 3 of the case is scheduled for the spring and summer of 2021 and will deal with the matter of compensation and all remaining issues.
“We look forward to a productive settlement table with a fully mandated federal government representative, a fully mandated provincial government representative, along with the Ojibway leadership in the Lake Superior, Lake Huron areas. Let’s not waste any more time or money in courts”, said BFN Councilor Peter Sewell.
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