Treaty interpretation must evaluate common intentions of parties at the time: David Nahwegahbow
The second stage of the Restoule v. Canada (Attorney General) appeal, in which a number of Ontario First Nations claim the Crown has not fulfilled its obligation to augment treaty annuity payments, will be heard in the first few days of June.
The subject of the litigation is a clause in both the Robinson-Huron and the Robinson-Superior Treaties, which the First-Nation signatories argue requires the government to raise annuity payments over time. Separate claims were brought regarding each Treaty. The cases were combined and heard together because they deal with similar facts and a similar clause, but they have not been consolidated.
In 2018, Superior Court Justice Patricia Hennessy found the Crown had a mandatory obligation to increase the annuity and had failed to for the last 150 years. Ontario is appealing. Canada is not.
David Nahwegahbow is a founding partner at Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors. He is representing 21 First Nations located within the area of the Robinson-Huron Treaty.
In mid-April, during phase-one of the appeal, the parties gave opening statements and main submissions, says Nahwegahbow. Ontario argued the wording of the Treaty did not provide for a mandatory augmentation beyond what the Crown had fulfilled, and that the trial judge had erred in her interpretation, he says.
“We argued, Treaty interpretation is interpreting what the parties intended at the time of the Treaty – and this was an 1850, of course – that's the test,” says Nahwegahbow. “What interpretation represents the common intention at the time of the Treaty that best reconciles the interests of the parties?”
“Our argument was, you can't look at the Treaty text on its own, that the treaty text needs to be looked at in the context of the relationship between the Anishinaabe and the Crown. And it needs to be examined from the Indigenous perspective, as well as the perspective of the Crown.”
The Robinson-Huron Treaty was signed in Sault Ste. Marie on in September 9, 1850. The territory stretches along the shores of Georgian Bay and Lake Huron, from Penetanguishene to Sault Ste. Marie and up to the Height of Land.
Also signed in 1850, the Robinson-Superior Treaty covers the land around the northern shores of Lake Superior, from Thunder Bay to Wawa, Ont.
In the latter half of the 1840s, there was a mining rush in the lands north and east of Lake Superior. The colonial government began issuing mining tickets without having first entered into a treaty with Anishinaabe in the area, says Nahwegahbow. The Indigenous population opposed these developments and issued petitions with the authorities, including the Governor General, but to no avail. The tension culminated in the Mica Bay incident in 1849.
Named for the bay of Lake Superior around 100 km north of Sault St. Marie, the Mica Bay incident involved a group of armed Anishinaabek forcing the closure of a mine operated by the Quebec and Lake Superior Mining Associations.
They took their lawyer, Allan Macdonell, with them, says Chris Albinati, associate at Nahwegahbow Corbiere Genoodmagejig. Macdonell offered the miners the opportunity to lease the mine from the Anishinaabek, instead of the Crown, which the miners refused before leaving. The Anishinaabek presented themselves to the local Magistrate in Sault Ste. Marie and they were arrested, denied bail and taken to Toronto. There was never a trial and Chiefs Shingwaukonse and Nebenaigoching and their lawyer Macdonell met with William Robinson, who wuld be appointed Treaty Commissioner in January 1850.
"The point of the Mica Bay Incident is that after years of peacefully asking the Crown (their military ally for almost 100 years) to either cease mining operations or secure their consent to do so through a Treaty, the Anishinaabek decided to assert and exercise their authority over territory they continued to control," says Albinati.
"Without their permission and without a Treaty, no mining could lawfully take place in their territory. that was the state of the law as in 1849. The Anishinaabek enforced that law through the Mica Bay Incident. The Provincial Government, who had unilaterally and illegally granted mining permits in the territory beginning in 1845, was ultimately forced to abide by that law."
The Robinson-Huron Treaty provided for a lump-sum payment and a perpetual annuity of £600, which was worth roughly $2,400 at the time, and amounted to around $1.50 per person. This was less than the going rate at the time because the Province of Canada was “basically broke,” he says.
“The norm for treaties, prior to that, was $10 a person,” says Nahwegahbow. “… So they made this agreement, after some negotiation, that provided for the annuity to be augmented, if the production of the territory would allow the Crown to do so without incurring a loss.”
“The annuity was augmented once in 1875 to the current level of $4, and it was never augmented again.”
It is the Crown’s failure to augment to the annuity since 1875 that is the subject of the current litigation.