After the Robinson treaties, other annuity cases want their day in court

After a $10-billion settlement was reached in the Robinson Huron Treaty annuities case last year, First Nations in Treaty 2, 4, 5 and 9 have launched their own lawsuits. 

They are arguing that the annual payments promised in the treaties should have been adjusted for inflation, as $4 or $5 in 2024 can't buy as much as it could back in the late 1800s. 

Missanabie Cree First Nation is leading one of these class action proceedings on behalf of the 48 communities in Treaty 9. 

That treaty covers about two thirds of Ontario and includes the James Bay and Hudson Bay watersheds.

Its chief, Jason Gauthier, says that after years of closely watching the Robinson Treaties case unfold, the communities decided they would also turn to the courts to have the annual $4 payment increased. 

They intend to argue that the terms of Treaty 9 were "foolish, improvident, or otherwise amounted to exploitation," and will be seeking at least $10 billion in compensation, according to the statement of claim filed with Ontario's Superior Court of Justice.

The cases are set to centre on inflation

Treaty 9 arguments are expected to be different from those that were heard in the Robinson Treaties case, which centred around a promise to increase annual payments according to the wealth generated from the land. 

Treaty 9 contains no such promise. 

Gauthier says their arguments will focus on inflation and the intent behind the signing of the treaty. He believes this is about ensuring that all First Nations are treated equally by the Crown. 

"Back when the treaties were signed, we weren't creating levels of citizenship within First Nations … If there was going to be a change in annuities then it would reflect all the treaties, not just one treaty," he said. 

The statement of claim reads "the Crown has declined or failed to augment or increase the annual payments … for the purposes of offsetting the impacts of inflation and maintaining the purchasing power." 

The class action proceedings in Treaty 2, 4 and 5 contain similar arguments. 

These cases are expected to centre on whether the Crown and First Nations had considered the loss of value in dollars over time when negotiating annuities.

Hope for a faster resolution

It took a decade of litigation for the Robinson Huron treaties case to be settled out of court, but Gauthier hopes this case won't take as long. 

"I'm hoping some precedence has been set and we can move forward a lot quicker," he said. "I applaud the Robinson Huron folks for paving the way for us to move forward." 

Whether or not Treaty 9's case will eventually end up at the Supreme Court, like the Robinson Huron case did, will depend on Canada and Ontario's response. 

It will also depend on how Superior Courts in different jurisdictions rule on the annuities cases before them.