RESOUNDING SUPREME COURT WIN FOR FIRST NATIONS

OTTAWA, ON, July 26, 2024 /CNW/ - The Supreme Court of Canada has chastised the Ontario and federal governments for an "egregious" breach of a 175-year old treaty, and ordered them to move quickly to compensate a group of First Nations located north of Lake Superior and Lake Huron.

Using unusually harsh language in its unanimous decision, the Court gave the governments six months to pay just compensation for its refusal to increase the annuities under the Robinson Treaties of 1850, in keeping with the "honour of the Crown."

Representatives of the Robinson Superior Treaty group hailed the decision as a major landmark along the road to reconciliation that demands governments make good on their promises.

Harley Schachter, counsel for Red Rock First Nation and Whitesand First Nation, expressed delight at the Supreme Court's recognition that the governments neglected their First Nations treaty partners - even as they permitted the rampant exploitation of natural resources from land within the treaty territory; wealth that they had promised to share, but did not.

"The Court took these breaches very seriously," he told reporters. Mr. Schachter said the Court made it clear that judges have an important role to play in future treaty disputes to ensure that governments uphold the honour of the Crown so that true reconciliation is achieved.

"The Supreme Court has ruled today that governments are not above the law," he said. "It is a sacred relationship between First Nations and the Crown. It is a partnership, not a dictatorship."

The Supreme Court found that the government's attitude made "a mockery" of the treaty promise and left the Anishinaabe with "an empty shell of a treaty promise."

Chief Lawrence Wanakamik, Chief of Whitesand First Nation, said that he was overcome with emotion when he heard of the Court decision.

"We have struggled a lot over the last 175 years," he said. Once his communities have been properly compensated. Chief Wanakamik said, upgrading health services is likely to be their highest priority.

The Court found there was a flagrant disregard of promises made in the 1850 Robinson Superior and Robinson Huron treaties, and that the Indigenous signatories received next to nothing.

"The Crown has severely undermined both the spirit and substance of the Robinson treaties," the Court said, adding that governments must now act quickly to fulfill their dishonoured promises.

Prior to the Supreme Court hearing the appeal last fall, the trial judge in the sprawling case - Justice Patricia Hennessy of Ontario Superior Court- had embarked on the final phase of the litigation, which involved an assessment of how much the plaintiffs are owed in compensation.

Her decision on the compensation issue is currently under reserve and will remain so for another six months to give the parties time to try and come to a mutually acceptable agreement in relation to past compensation to be paid.

Justice Hennessy heard intensely human testimony from Indigenous chiefs and elders about the abject poverty their people have lived in at the same time as logging and mining companies were exploiting their natural resources. They told of growing up in tarpaper shacks where large families had no plumbing or insulation, and slept on floors. Food was scarce or unobtainable. Winters were virtually unbearable.

Yet, just kilometres away, large companies such as Kimberley-Clarke were reaping handsome profits from sawmills or mining operations located on their land.

Under the treaties, the annuity was to be augmented over time in keeping with the rising economic value of the land. However, a recalculation took place only once - in 1874. It has remained at $4 per person since 1875.

The Ontario government's legal position was that the province suffered a net loss in developing this resource-rich region over the past 150 years. It claimed that the costs of colonization - building railroads, roads, insect control, land surveys, and so on - should be subtracted from its net value. It alleged a net loss of $7-12 billion.

Economists testified that as much as tens of billions of dollars are owed to the Indigenous communities. Included in their calculations were the opportunity cost of wasteful decision-making; the giving away of free hydroelectricity and undervalued stumpage rates and mining rights to industry; the deprivation of the ability of the Anishinaabe to create proper educational and health facilities; and the fact they Ontario procured the treaty acting in a monopolistic manner.

In stark contrast to Ontario's position, the federal government conceded that the treaty beneficiaries are owed a considerable sum.

Unless the governments meet their obligations honourably for payment of past breaches of the treat by Jan. 26, 2025, the Lake Superior plaintiffs will return to the Court to seek compensation for these historic wrongs.

SOURCE Stockwoods LLP

For more information or interviews, please contact: Counsel: Harley Schachter: 204-955-7666, [email protected]; Brian Gover: 416-844-2007, [email protected]; Kaitlyn Lewis: 204-299-7268, [email protected]; Interviews with First Nation litigant representatives can be arranged through counsel