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The Anishinaabe vs. the Crown: Fashioning a Just Award in the Robinson Superior Treaty Annuity Case

Written by
Kiki Paterson
and
and
November 24, 2023
The Anishinaabe vs. the Crown: Fashioning a Just Award in the Robinson Superior Treaty Annuity Case

More than twenty-two years from the day Red Rock and Whitesand First Nation first filed a lawsuit against Canada and Ontario on behalf of all Robinson Superior Treaty (RST) beneficiaries, Stage 3 of the trial commenced following the province of Ontario’s appeal of a 2021 Ontario Court of appeal ruling. After two days at the Supreme Court of Canada beginning on November 7th, members of the 12 First Nations across RST territories now await the results. 

The Robinson-Huron Treaty remained alongside the RST in the trial, until Stage 3, where they decided to settle for an award of $10 billion. The RST beneficiaries are expected to get a significantly higher compensation, although the Crown is fighting them on it.

Stage 1 of the trial heard in 2017, concerned itself with the treaty’s interpretation,with Justice Hennessy’s decision that it was the parties common intention to share the wealth. In 2019, Stage 2 of the trial allowed Ontario to plead a number of defenses to diminish the claim of the plaintiffs, although they were unsuccessful. 

The purpose of Stage 3 is to quantify the compensation for the breach of treaty that took place. To do this, experts on either side of the trial had to calculate the net Crown resource revenues generated in the RST territory from 1850 to the present day, and then determine the Anishinaabe share of that amount. 

Essentially, this means they had to determine how much money the Crown was making from the land within the time since the treaty was signed, and how much of that money is owed to the Anishinaabe. 

The Crown and the plaintiffs (counsel for the RST beneficiaries) have conflicting views on the Crown’s expenses and methods as to reconciling the money into present day dollars. This has created a large difference in the final numbers provided by both Ontario, Canada, and the plaintiffs.

The plaintiffs recruited Nobel Prize winning Professor Joseph Stiglitz and expert economist David Hutchings to make their calculations. The two made a conservative calculation of resource rents of $3.586 billion. 

Resource rents are understood to be the full economic value of the land. Of that number, it was determined that the Crown received at least $1.806 billion. The evidence shows that the Anishinaabe share of what the Crown has received is 84%, making the final amount $1.517 billion. \

Map of pre-1975 treaties in Ontario. Since the signing of the Robinson Superior Treaty, the Canadian Government has profited from the use of the lands signed over by the treaty without paying sufficient annuities to the indigenous nations whom the treaty governs, argue RST beneficiary plaintiffs. Image: Canada Geomatics Services, 2014.

This number must still be expressed in present day dollars, to do so, Stiglitz and Hutchings use their 60/40 model. The 60/40 model assumes that RST beneficiaries would have, since the signing of the treaty, used an investment strategy of a mix of 60% equities and 40% long-term government bonds, resulting in an annual rate of return of 7.2 %. 

Using their model, Stiglitz and Hutchings get a number in present day dollars of 65.278 billion. The plaintiffs state that this a base valuation of compensation for the RST beneficiaries, it has not factored in any damages that need to be awarded for the lost opportunity to engage in the process, making the amount available to share greater than $3.586 billion. 

The plaintiffs believe the proper range for past compensation in present day dollars is at least $65.278 billion, and up to $126.285 billion, representative of revenue able to be received by the Crown. An award of $126.285 billion from the view of the plaintiffs is reflective of what the Anishinaabe “brought to the table”.

Ontario takes a conflicting approach to their calculations, recruiting Professors Robin Boadway and Michael Smart. The pair argue that Stiglitz and Hutchings did not consider significant Crown expenses. The plaintiffs argue the opposite, and state Boadway and Smart were over-inclusive on expenses. 

All this to say, a few unaccounted-for expenses do not make quite as large a difference in calculation as we are seeing. Ontario is arguing that since the signing of the RST, the Crown net resource revenues were actually in the negatives at a value of -$7 billion. Furthermore, Ontario argues that the Court should not order a monetary award, and the remedy for the breach of treaty, simply be a declaration of Canada’s breach of treaty. 

Ontario concludes the written submission by asking the Court that firstly, Canada’s crossclaim be dismissed with costs and secondly, that the plaintiff’s claim against Ontario be dismissed with costs for Stage 3 of the proceedings. In essence, Ontario offered no compensation for the loss and damages caused by the Crown to RST beneficiaries and asked that the case be dismissed. 

Counsel for Canada are arguing that the compensation should be calculated in similar methods to that of Stiglitz and Hutchings, by an assessment of net Crown resource revenues. By comparing present day values of both Stiglitz/Hutchings’ estimate and Boadway/Smart’s estimate, Canada stated that a reasonable estimate of net Crown resource revenues from 1850–2020 in the RST territory is $4.4 billion to $5.5 billion. 

Despite this calculation, Canada submitted that an appropriate award would be in the range of $578 million to $2.45 billion, notably lower than the amount the Crown profited off the Anishinaabe’s ancestral territory.

When the task of fashioning a just award is completed, there still remains the question of future annuity payment. Nowhere were actual amounts given, although there is plenty of which to speak over the Crown’s discretion in the matter. 

The plaintiffs seek that a declaration be made that it is the Courts and not the Crown, who have the authority to determine the sum of future annuity augmentation in the event the parties are unable to come to an agreement. This is seen as a fair demand for the RST beneficiaries which would allow them peace of mind, as the Crown had this authority and decided to neglect it for more than 170 years. 

The Crown, understandably has a difference of opinion on the matter, stating the Court cannot substitute itself for the Crown, under a treaty or otherwise. Furthermore, they explain that the Anishinaabe have the right to apply for judicial review, as the Crown’s discretion is not unfettered. 

Stage 1 and 2 rulings are expected next year, with Stage 3 decisions expected a few months after. If the compensation amount were to be announced in favour of the plaintiffs, the decision could change the lives of thousands of RST beneficiaries and end the curse of poverty the Crown has brought upon them. 

Watch the November 7th and 8th hearings here.

Read a copy of the Robinson Treaty here.

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