First Nation files legal claim over 150-year-old Treaty 4

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This article was published 07/02/2024 (612 days ago), so information in it may no longer be current.

THE chief of Waywayseecappo First Nation is leading a prospective class action lawsuit representing a raft of Indigenous communities challenging the terms of a nearly 150-year-old treaty agreement.

The claim, filed Jan. 29 in the Manitoba Court of King’s Bench, is seeking retroactive compensation and amendments to the annuity agreements solidified with the federal government when Treaty 4 was formed.

It is the latest in a series of similar lawsuits filed in Manitoba, representing a collective 85 First Nations in treaty areas across Western Canada.

Waywayseecappo Chief Murray Clearsky filed the new claim on behalf of himself and the members of 33 First Nations in the Treaty 4 region (which encompasses parts of Manitoba, Saskatchewan and Alberta).

“Today marks a critical step in our ongoing pursuit of justice and accountability. The launch of these class actions against the Crown are vital in addressing the historical wrongs inflicted upon the Treaty 4 First Nations,” Clearsky said in a news release Tuesday.

“These proceedings seek to uphold the Crown’s commitments to our members and our children, ensuring that promises are not just made, but honoured.”

The lawsuit, reviewed by the Free Press, names the Attorney General of Canada as a defendant and claims the federal government has failed to uphold the agreement by not updating the annual payments given to treaty members to account for inflation.

Since the treaty was signed in 1874, annuity payments have remained at $5 per member.

The lawsuit argues, while the money was once enough to purchase “food and supplies to survive in the changing economy,” it no longer serves as anything more than a “symbolic sum.”

“In keeping with the intention and spirit of the parties at the time of treaty formation, it is necessary to adjust the nominal cash value,” it says.

The suit is seeking $100 million in damages, along with an undetermined amount in retroactive payments dating to when the treaty was signed.

Other Treaty 4 leaders have filed similar lawsuits on behalf of their members in the Federal Court of Canada. The legal actions will play out simultaneously in the provincial and federal court systems.

In little more than a year, members of Fisher River (Treaty 5), Lake Manitoba (Treaty 2) and Roseau River (Treaty 1) have also filed lawsuits on behalf of their respective treaty areas, also demanding the Canadian government amend their membership’s annual annuity payments.

All of the claims remain before the provincial court system and have not been settled by a judge.

Collectively, the lawsuits represent thousands of Indigenous people and a court ruling could further establish legal precedent for how similar claims are handled in Canada, said Leo Baskatawang, an Indigenous scholar and assistant professor of law at the University of Manitoba.

“These cases will certainly be incredibly complicated,” he said Tuesday.

The recent flurry of legal activity could be the result of a settlement reached in Ontario last year, in which First Nations connected to the Robinson-Huron and Robinson-Superior treaties receive a proposed $10 billion from the provincial and federal governments over unpaid annuities dating to 1850.

In that case, the original treaties included an augmentation clause in which the Crown acknowledged it may one day need to adjust annuity payments, Baskatawang said.

The Manitoba lawsuits will not be so straightforward, however, because the numbered treaties do not include such a clause, he added.

“What I would expect the government to do is argue in favour of a plain and literal interpretation of the treaty, which basically states that the government is obligated to pay $5 a year, every year,” Baskatawang said.

“The plaintiffs would argue that doesn’t really fit into the spirit and intent of what the annuity payment was supposed to be, which was to provide a level of subsistence allowance.”

The law professor said he is hopeful the parties will be able to reach an out-of-court settlement, saving years of litigation and legal fees.

“Canada was built on having a relationship based on peace and friendship and mutual benefit… but the treaties have been somewhat forgotten, particularly on the side of the Canadian government,” Baskatawang said.

In October 2023, the federal government filed a statement of defence in the Roseau River lawsuit; it asked the court to dismiss the claim.

“Canada is under no duty to adjust, index to inflation or otherwise ‘modernize’ the amounts paid to beneficiaries of the treaty promise,” the statement says. “Canada says the parties did not intend the treaty annuity to provide anything more than the fixed payment specified in the treaty text.”

The federal government has not provided statements of defence in the other numbered treaty lawsuits filed in Manitoba.

In an email statement, Crown-Indigenous Relations and Northern Affairs Canada said it is committed to honouring the treaty relationships and working in partnership with First Nations to advance reconciliation.

“Canada recognizes that more needs to be done to renew the Treaty relationship and remains open to looking at ways to advance this important work,” a spokesperson said.

“We are aware of the recently filed class action you referenced and are currently reviewing the Statement of Claim to determine next steps. As these matters are before the Courts, we are not in a position to comment further at this time.”

tyler.searle@freepress.mb.ca