On January 27th, 2025, the six-month timeframe given to the Canadian and Ontario governments (“the Crown”) and the Anishinaabe signatories of the Robinson Superior Treaty (“RST First Nations,” or “the plaintiffs”) expired. Following the Supreme Court of Canada’s decision on July 26th of last year confirming that the Crown must compensate the RST First Nations for past breaches of the augmentation promise, the Crown was to “engage meaningfully and honourably with the Superior plaintiffs to arrive at a just settlement.”

If an amount could not be agreed upon, the Crown could exercise its discretion and determine an amount to compensate for past breaches of the treaty. This is exactly what happened. The Crown offered a compensation of $3.6 billion, which was quickly turned down by the RST First Nations in favour of seeking a just and honourable court-imposed resolution. 

The case involves twelve Anishinaabe First Nations from the north shore of Lake Superior who, along with the Anishinaabe of Lake Huron, entered land cessions treaties with the Crown in 1850. Under the treaty, the Anishinaabe ceded their territory to the Crown in exchange for—among other things—a perpetual annual payment (annuity) of £500 (equivalent to about $1.60 per person). 

The treaty contained an augmentation clause according to which the annuities were to be increased over time if the ceded lands produced an amount that would allow the Crown to increase the annuity without incurring loss. The annuities were increased to $4 per person in 1875, and have been frozen at that amount since. 

Red Rock and Whitesand First Nation first filed a Statement of Claim in 2001 seeking declaratory and compensatory relief relating to the breach of the augmentation clause. They were later joined by the remaining First Nations of the Robinson-Superior Treaty and the Anishinaabe of Lake Huron. 

The case was tried in three stages: Stage One addressed the interpretation of the treaty, Stage Two considered Ontario’s defences of Crown immunity and limitations, and Stage Three concerned the plaintiffs’ claim for damages. The Anishinaabe of Lake Huron did not take part in Stage Three, as they reached a settlement with the Crown for $10 billion. 

During Stage Three, the plaintiffs argued a proper award was at least $65.278 billion, and up to $126.285 billion based on the calculations of Nobel Prize winning Professor Joseph Stiglitz and expert economist David Hutchings. The Crown’s offer of $3.6 billion is only a small fraction of what the plaintiffs’ determined was fair compensation for the Crown’s breach of treaty. 

For the past six months, RST First Nations’ members have been waiting patiently for a result, just as they have been for twenty-five plus years.

When asked how the negotiations with the Crown played out, Chief Wilfred King of Gull Bay First Nation told Arthur, “I didn’t feel that both Canada and Ontario were negotiating in good faith… they always knew that they could exercise their discretion at the end of the day.” 

This is contrary to the goal of this case, which was to renew the treaty relationship. In the Supreme Court ruling, the reason for negotiations among the parties rather than a judicially calculated damages award was to allow for “engagement between treaty partners” and a “better potential to renew the treaty relationship.” 

Chief King continued to say how he “was optimistic initially that there would be a new relationship, and they would come to the table with an open heart and clean hands and pay a reasonable amount of money for the past annuities.”

“It was a debt that had to be paid and should have been paid, and if [the amount] was honourable, then perhaps you could start the next process of that relationship,” King said. “I felt personally that there wasn’t really any genuine effort to rekindle that relationship…it was demonstrated by their lack of commitment to negotiate and their lack of acceptance of our arguments and the historical evidence that was presented to them.”

This view was shared by Kaitlyn Lewis, counsel for Red Rock and Whitesand First Nation who explained that part of the issue “was that the Crown didn’t really engage in the process.” 

Lewis explained how the Crown seemed to stick to their guns, adding that “Canada argued in court that the Anishinaabe should be entitled to a payment for past compensation between $500 million and $2.5 billion, so they basically applied that same logic and bumped it up to $3.6 billion.” 

All parties now look to the upcoming court review set to begin in early June in Thunder Bay. Lewis explained that “this review is incredibly complicated from a legal perspective, because it’s new law. It’s a new process called a review for constitutional compliance, which is the first of its kind.”

“I still feel very confident about it,” Lewis said, “but I’m not able to give the same level of assurance because it’s just such a new process.”

The RST First Nations’ rejection of the $3.6 billion may seem like a large risk. However the court review process is simply to find if the Crown was fair and honourable in their decision. The $3.6 billion proposed will not be stayed pending the court review and is to be paid immediately while allowing sufficient time for legislative approvals. 

Lewis explained there is no exact date as to when this money will be released to the RST First Nations, but they expect it’ll be before June. 

The case now returns to Justice Patricia Hennessy of the Ontario Superior Court of Justice to determine if the Crown’s process of determination was honourable and consider appropriate remedy, including returning the issue to the Crown for redetermination or setting an amount to be paid by the Crown. 

Read the July 26^th, 2024, Supreme Court ruling here: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20554/index.do 

Read a copy of the Robinson Treaty here: https://www.rcaanc-cirnac.gc.ca/eng/1100100028978/1581293296351