Robinson Treaties decision reverberates in Manitoba

Hey there, time traveller!
This article was published 07/08/2024 (486 days ago), so information in it may no longer be current.

In late July, the Supreme Court of Canada issued a groundbreaking ruling on a treaty dispute in Ontario that Manitobans should pay attention to.

In 1850, leaders from 34 First Nations signed the Robinson Treaties with the British Crown, giving soon-to-be-created Canada and Ontario access to more than 100,000 square kilometres of land via two agreements.

At the time, the British were motivated by the abundance of minerals in the region — copper and iron, in particular — so, unlike previous treaties (which were predominantly peace, alliance or “land cession” agreements), the Crown’s representative, William Benjamin Robinson, was somewhat giving in what he had to offer.

In exchange for the use of First Nations territories, communities were offered more than just promises of a reserve and a “continuation of life.” They were offered an annual payment that would start at around a dollar and a half and increase via an “escalator clause” as resources in the region were extracted and profited upon.

In other words, as British North America citizens — soon to be Canadians — profited, so would First Nations peoples.

Sounds pretty fair to me.

Over the next decades, dozens of mines, mills and smelter plants opened. New minerals were uncovered and extracted, such as gold, silver, nickel and even uranium.

For a little while, the Crown fulfilled its promise. In 1875, annuities under the Robinson Treaties were raised to $4 per citizen. Then, the increases stopped.

Yet, the value of the land and resources in the Robinson Treaties increased.

Sault Ste. Marie, Sudbury and Thunder Bay are situated on the land in question, not to mention million-dollar cottages owned by elites from across the world.

For over a century and a half, citizens from 34 First Nations watched billions of dollars of resources be taken from their communities, only to receive four loonies each.

Starting in 2001, communities filed lawsuits that argued the “escalator clause” was never fulfilled. After years of negotiation and trials, on July 26, the Supreme Court ruled unanimously that the Crown had acted “dishonourably.”

“(The Crown) must increase the annuity under the Robinson treaties beyond $4 retrospectively, from 1875 to the present,” Justice Mahmud Jamal wrote in the decision. “It would be patently dishonourable not to do so.”

The “honour” of the Crown is a critical foundation of British/Canadian law, particularly when it comes to legal relationships with Indigenous peoples. Basically, it means the Crown must act fairly, justly, and with integrity — particularly when enacting law.

Hence, the 34 First Nations who make up the Robinson Treaties are deservedly in negotiations with the federal and provincial governments to recover billions of dollars of stolen revenue (with some completed already).

None of this is a “handout,” but what it means to fairly, legally, and justly fulfil treaties.

Meanwhile, across the Prairies a handful of First Nations are also demanding honour from the Crown, and are negotiating with the federal government to fulfil a failed treaty promise.

In virtually all of the “numbered treaties” — Treaties 1 to 11, which span from northern Ontario to the Rocky Mountains — First Nations were promised agricultural implements and resources that were never supplied.

Often called claims for “cows and plows,” a handful of First Nations have successfully negotiated compensation and distributed payments to members for lost revenue and damages.

Pine Creek First Nation, for example, has negotiated a settlement of more than $200 million. More negotiations, such as from my First Nation (Peguis), are happening or are in development.

Considering the Robinson Treaties decision and the success of “cows and plows” claims, this lays the groundwork for arguably the most significant legal challenge to test the honour of the Crown yet: a lawsuit over $5 treaty payments.

Each year, a half-million or so citizens from more than 200 First Nations in the numbered treaties receive a $5 annuity. Often called “treaty money” and given out at Treaty Days, First Nations citizens line up every summer to receive a crisp $5 bill from government representatives.

Not all First Nations negotiated $5 annuities. Leaders who negotiated Treaties 1 and 2, for example, only negotiated $3. Leaders in Treaty 3, however, negotiated $5 because of their knowledge of the value of resources such as timber in the area.

Because the Indian Act standardizes treatment of all status Indians in Canada, this meant the citizens of Treaties 1 and 2 therefore had their annuities increased to $5.

That could definitely be interpreted as an “escalator clause” to me, but I’m certain lawyers have much more interesting arguments.

No one in their right mind could ever argue that $5, the price of a hotdog, is worth an acre of Treaty 1 territory.

In a world where the honour of the Crown is supposed to exist, there are some big questions, decisions, and misdeeds that have to be reconciled before reconciliation is possible.

niigaan.sinclair@freepress.mb.ca