The ‘Escalator Clause’ is at issue for current legal action.
September 9th, 2017, will mark the 167th anniversary of the signing of Robinson Huron Treaty.
A legal action that was launched in 2014, and comprises 21 First Nations within the geography of The Robinson Huron Treaty, continues to unfold, with the next date taking place in a Thunder Bay Court at the end of this month. Named in the litigation are plaintiffs from within the Robinson Huron Treaty.
The lawsuit addresses the issue of the annuity to be paid to each member residing in the 92,463 square kilometres of territory covered by the treaty.
In an interview with Superior Media, Chief Dean Sayers, Batchewana First Nation said, “21 Chiefs that make up the Robinson Huron Treaty embarked on this mission to see a clause within the Treaty take affect – The escalator clause within the Robinson Huron Treaty of 1850.”
The Robinson Huron Treaty area includes, Serpent River First Nation; Shawanaga First Nation; Sheshegwaning First Nation; Temagami First Nation; Thessalon First Nation; Wahnapitae First Nation; Wasauksing First Nation; Whitefish River First Nation; Sagamok Anishnawbek First Nation; Nipissing First Nation; Magnetawan First Nation; Mississauga First Nation; Henvey Inlet First Nation; Garden River First Nation; Dokis First Nation; Atikameksheng Anishnawbek First Nation; Batchewana First Nation of Ojibways.
The Robinson Huron Treaty Trust is a framework for which the legal action is undertaken.
“Collectively, we needed to have a body to administer the proceeds of any award that may come about in the future. The Robinson Huron Treaty Trust (RHTT) is the body by which we move the litigation forward.”
In a media release, The Robinson Huron Treaty Trust (RHTT) provided a copy of a recent letter that was sent to Honourable Carolyn Bennett, Minister of Indigenous and Northern Affairs Canada, dated Aug. 22, 2017.
The RHTT letter is a response to a letter received from Min. Bennett, dated Aug. 21, 2017. The Aug. 21st letter was Minister Bennett’s response to a letter sent by RHTT to Prime Minister Trudeau on July 24th, 2017. That letter was about the Robinson Huron Treaty Annuities Claim.
“There are 21 trustees on behalf of the 21 Chiefs – That is who manages this litigation. Within the RHTT we have a litigation management committee. I’m one of the plaintiffs. Myself, along with Chief Duke Peltier (co-signatory to Aug. 22nd letter) are on the litigation management committee for The Chiefs in the Robinson Huron Treaty Trust.”
The annuity, as described in the escalator clause, was supposed to continue to increase as a share of the revenue the Crown derived from the lands granted to its use under the treaty. The statement of claim seeks a calculation of the revenue generated from the treaty territory since 1850, an increase in annuities, and compensation for losses stemming from the Crown’s failure to increase annuities over the past 167 years.
In the Aug. 22nd letter released from RHTT, Ogimaa Dean Sayers and Ogimaa Duke Peltier state:
‘We are writing to express, in good faith but in no uncertain terms, our profound disappointment regarding the clear and complete disconnect between your government’s enlightened words and hopeful statements and the actions of your government in dealing with our Claim. Your letter says: “The Government of Canada places a high priority on renewing a nation-to-nation relationship with Indigenous Peoples. We are committed to developing a partnership based on recognition of rights, respect and cooperation.” Yet, by its actions, your government is doing the exact opposite!’
“Every year since 1850 there was supposed to be an accounting of the revenues generated from the sale of the resources from our lands.” said Chief Sayers. “At the end of every year there would be monies transferred to the First Nations that signed the 1850 treaty with The Crown. An Annual Resource Revenue Agreement – A revenue sharing agreement. If the Crown was able to generate more money in a particular year – we would receive more money. There has only been one raise to those funds, and that was in 1875.”
It’s currently sitting at $4.00. Prior to 1875, it was a little less than $2.00.
“Each one of us receives $4.00 – as our rent and our payment for sharing the lands and resources. This amount should have gone up.”
“We’ve now had to take legal action against Canada.” said Chief Sayers. “We’ve filed civil suit and there is a trial coming up. An Ontario judge is hearing the matter in Thunder Bay, Ontario on September 25th. When the judge was assigned – she wanted to pursue exploratory discussions to try and resolve this outside of the courts, but Canada walked away from the table.”
An exploratory meeting was held on December 22nd, 2016.
Excerpt from HRTT letter (Aug.22, 2017)
‘Your letter refers to without prejudice exploratory discussions which you had previously proposed in your letter of July 22, 2016. You say that your “Government is open to constructive dialogue” and that you “look forward to the results of these discussions.” It is surprising that your officials would not have reported the failed results of those “exploratory discussions”. Minister Bennett, we had a meeting on December 22nd, 2016 – seven months before your letter of July 24, 2017 – and the meeting was far from a “constructive dialogue”. We were certainly prepared to be constructive; but your officials were not. Indeed, on March 14th, 2017, Mr. Gary Penner of the Department of Justice wrote: Canada’s position, as expressed at the meeting, is that it does not and will not have a mandate to enter into negotiations predicated upon the Plaintiffs’ interpretation of the Robinson-Huron Treaty. In other words, Canada’s position is that if we do not accept Canada’s interpretation of the treaty, then it is not prepared to enter into any negotiations. Canada was built on treaties. If Canada cannot commit to constructive engagement with respect to treaty interpretation and implementation, the goal of reconciliation is in a word, doomed.’
Chief Sayers said he expects the trial to go on until March, 2018. The trial will travel to several First Nations territories that make up the Robinson Huron Treaty. Ceremony and culture will play a significant part of the trial process.
“We will be in Garden River for week 6 starting October 30th. After Garden River, the trial will move to Little Current, Manitoulin Island. The trial will take place at the Dan Pine Healing Lodge (Garden River FN) on October 30th, at which time I will be one of the witnesses.”
“This will be a long trial. I am anticipating a decision (from the Judge) in December, 2018.” shared Chief Sayers.
(Excerpt from RHTT letter dated Aug.22nd, 2017)
‘Ontario’s position, as understood from the December 22nd meeting, is that the province is willing to contemplate indexing the annuities, but to date has given no indication that it has a mandate to consider revenue sharing. Given that the Plaintiffs’ mandate is limited to settling this litigation on the basis of treaty annuities interpretation and revenue-sharing, Canada believes that negotiations can only advance if Ontario has a mandate to negotiate revenue-sharing or if the Plaintiffs have a willingness to explore other settlement options. Absent this, and in light of the current limits of the Plaintiffs’ mandate, there does not appear to be any basis to enter negotiations.’
“We’re having some discussions with Ontario currently– we’re just starting the discussions – about how we can improve the relationship with The Crown. Our intention is to be reflective around jurisdiction for each FN. We want to see resolutions – recognition – the ability for the First Nations to continue to exercise our inherent obligations and jurisdiction throughout the lands that we originally set aside through the Vidal-Anderson Report of 1849.”
The 1849 Vidal-Anderson Report led to the eventual signing of the Robinson Huron Treaty in Sault Ste. Marie one year later.
“The Vidal-Anderson report came about because BFN leadership went and shut a mine down north of the Sault about 80 miles. They (miners) were stealing copper without a license. BFN leadership were arrested and brought to Toronto for imprisonment– The Governor-General of the day told the Crown reps that the First Nations were right and we were released. The GG said – ‘those are their lands – You can’t be selling their minerals without a treaty. Without a treaty, there can be no extraction. A year later, The Robinson Huron Treaty was signed.”
“We always expected that when the copper issue happened in 1849, that the results of any resource extraction would be done in a sustainable way; That we would benefit from those extractions. That we would see an annual return on all of those natural resource extractions. The Crown at that time made a commitment to give us an annuity based on the value of minerals or other extractions that they take off of our land.”
On September 6th, 2017, the annual annuity – $4.00 – will be paid out to each Batchewana First Nation band member at The Rankin arena, Batchewana First Nation.
To learn more about Crown Treaty No. 61 – The Robinson Huron Treaty – go here