Supreme Court tells governments to pay for ‘empty shell’ treaty promises

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In a stern ruling with multibillion-dollar implications, the Supreme Court has given Ottawa and Ontario six months to reach a negotiated settlement to address 150 years of insufficient treaty payments to Northern Ontario First Nations who were promised their $4-per-person stipend would be raised from time to time.

In a unanimous ruling, the Supreme Court justices called the government failure to adhere to the commitment’s plan of increasing payments an “empty shell of a treaty promise.” The ruling said government officials in Ontario and Canada have behaved in “dishonourable,” “egregious” and “shocking” ways over decades in their dealings with the Anishinaabe peoples living on the northern shores of Lake Superior.

Released Friday, the ruling narrowly centres on modern implications of a 19th-century agreement known as the Robinson Treaties, which affect several thousand Indigenous people living in Northern Ontario. But legal observers say the Supreme Court’s stern rebuke of government’s misdeeds could affect treaty cases across Canada.

“The Crown has dishonourably breached its sacred promises to them under the Robinson Treaties for almost 150 years,” the ruling says.

Federal officials say they will respect the ruling. “We welcome the Supreme Court of Canada’s July 26 decision, which provides clarity on the treaty promise made,” said Jennifer Cooper, a spokesperson for Crown Indigenous Relations and Northern Affairs Canada.

But provincial officials said they would not comment. “As the trial relating to the Robinson Superior treaty remains before the courts, it would be inappropriate to comment further,” said Jack Fazzari, spokesman for Ontario Attorney-General Doug Downey.

According to the decision, there were 13,456 beneficiaries of the Robinson-Superior Treaty as of 2017. Their ancestors signed written agreements that ceded vast territories in Ontario. Those ancestors hoped to thrive from resource sharing, and the treaty provided for annual payments in perpetuity that were to increase periodically – but that has not happened for 150 years.

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“The annuities have been frozen at a shocking $4 per person,” the Supreme Court ruling says, adding that this “can only be described as a mockery of the Crown’s treaty promise to the Anishinaabe of the upper Great Lakes.”

Legal observers say the stern language of the ruling, written by Justice Mahmud Jamal, is exceptional.

“I’ve read a lot of these decisions. That’s the strongest language I’ve ever heard the court use,” said Bruce McIvor, a partner with First Peoples Law LLP in Vancouver.

Mr. McIvor said the effects of the ruling will resonate well beyond the vicinity of Lake Superior. “What it does say is that the Crown will be held to account for failing to fulfill treaty obligations,” he said.

Sara Mainville, a former First Nations chief in Ontario and lawyer with JFK Law LLP in Toronto who is Anishinaabe, said that the coming compensation could make a huge difference in people’s lives.

“It’s really meant to mean we are going to work together to the development of this region,” she said.

Ms. Mainville said that in a best-case scenario, the new Supreme Court ruling could result in amounts similar to a recent $10-billion legal settlement awarded to neighbouring Indigenous communities on the shores of Lake Huron, who had signed the same treaty.

Many observers say the extra money will be long overdue.

“You go to those reserves and you will see poverty and you will see need,” said Harley Schachter, a lawyer acting for some of the plaintiff First Nations in the case.

Mr. Schachter, of Duboff Edwards Schachter Law Corp., said he has been fighting on behalf of First Nations clients for an increase to the $4 annuity since 1999, but he faced a litany of stalling tactics by government officials before the case reached the Supreme Court.

“I would call it unconscionable that it has taken this long,” he said.

In the treaty signed in 1850, Crown negotiator William Robinson agreed to language that is somewhat unique in Canada by stating that the annual payment to First Nations would be adjusted “from time to time.”

But this only ever happened in 1875, when the amount was raised from $1.60 to $4. There has been no subsequent indexing for inflation since, and the effect of time has rendered the treaty payments a pittance.

In a 2018 lawsuit decision, Ontario Superior Court Justice Patricia Hennessy sided with Anishinaabe claims, ruling that the Crown had broken its pledge to augment the annuity payments. A 2021 Court of Appeal decision upheld the main themes of her finding. But it was appealed by the Ontario government to the Supreme Court.

Now, as a result of the new ruling, government officials can no longer ignore their obligations.

“The Crown must exercise its discretion and increase” the annuities with respect to the past,” Justice Jamal wrote.

“The Crown will be required, within six months of the release of these reasons, to exercise its discretion and determine an amount to compensate the Superior plaintiffs for past breaches.”

These amounts and dealings will be subject to judicial review.