Supreme Court of Canada hears Ontario's appeal of the landmark Robinson Huron treaty annuities case

More than six years since it saw its first day in court, the Robinson-Huron treaty annuities case is being heard at the Supreme Court of Canada on Nov. 7 and 8. 

At the centre of this landmark case is a promise that annuities to the Indigenous communities would increase according to the wealth produced by the land.

Despite the billions of dollars of profits generated by the mining, forestry and fishing industries since the signing of the treaty, payments to the Anishnaabe were capped at $4 per person in 1874 and haven't increased since. 

In 2018, Ontario's Superior Court of Justice ruled that the province had an obligation to increase the annuities. 

The province appealed that decision to the Ontario Court of Appeal, which upheld the findings of the lower court in 2021.

The Supreme Court of Canada judges will be asked to examine stage 1 and 2 of the trial, which concerned the interpretation of the augmentation clause and the defences of the Crown, respectively. 

In its factum, Ontario stresses that the wording of the treaty should be interpreted to mean that increases to the annuity are at the discretion of the Crown, and are not for the court to rule on. 

The province maintains that governments ultimately have the power to decide how to allocate public resources, and these matters should not be dictated by the courts. 

"Ontario is seeking to argue that the decision is up to them," said the lead counsel for the Robinson-Huron plaintiffs, David Nahwegahbow. "They say it might be reviewable, but the court cannot make the decision or issue an obligation to increase [the annuity]." 

Earlier this summer, a proposed $10-billion settlement agreement was reached between the Robinson-Huron Treaty signatories and the federal and provincial governments. 

The Supreme Court of Canada ruling in this case will not have any implications for this settlement, which is a compensation for past annuities. 

But it may have implications for future annuities negotiations, which have not yet begun but are very much at the centre of this case.

The Robinson-Huron Treaty Litigation Fund has invited the public to view the hearing at a live streaming event, which will held at the University of Sudbury on Tuesday and Wednesday.

The case has garnered attention from coast to coast because it integrates Anishnaabe law, perspectives and principles in the judicial process.