The Agenda with Steve Paikin (Audio) - Will the Robinson Treaties Settlement Correct a Lonstanding Wrong?

Episode Date: October 8, 2024

The Supreme Court of Canada ruled that First Nations communities were owed billions of dollars from the Canadian and Ontario government as part of the Robinson Treaties settlement. Some nations say the settlement is an underpayment. The Agenda looks at why some of the settlement has not been paid, and what it might take to correct this historic wrong. See omnystudio.com/listener for privacy information.

The Supreme Court of Canada has ruled that Canada and Ontario have made a mockery of their treaty obligations to the Huron and Superior Anishinaabe First Nations. Here to discuss the settlement and whether it accomplishes what it set out to achieve, we welcome. On Manitoulin Island, Ontario, Duke Peltier, trustee and spokesperson for the Robinson Huron Treaty Litigation Fund, he's a former chief of Wikwemekong unceded territory. On Birch Island, Ontario, right beside Manitoulin, David Nwagabo, legal counsel for the Robinson-Huron-Treehee Litigation Fund and a partner at Nwagabo Corbiere. In Garden River, Ontario, near Sault Ste. Marie,

Chief Karen Bell of the Garden River First Nation. And with us here in studio, Harley Schachter, legal counsel for Red Rock and White Sand First Nations and a partner at the Duboff Edwards Schachter Law Corporation. And Harley, it's good to have you here. You've come all the way from Vancouver for this, so we're grateful. And to our three friends in Points Beyond, we're grateful you join us tonight as well here on TVO. I suspect this is a story that a lot of people sort of know a little bit about and have heard about, but I don't want to assume they know too much.

So Harley, I want to start with you and just start with the basics. The Robinson Treaties are what? The Robinson Treaties are treaties made in 1850 between Robinson representing the government and on behalf of the Anishinabe. And it is an agreement by which the Anishinabe agreed to share the territory with the newcomers by way of a treaty.

In exchange for what? They share the territory and? In exchange for the fundamental aspect was in exchange for a continuance of their way of life, in exchange for a share of the wealth, and in exchange for respect, responsibility, reciprocity, and renewal. Fundamental elements of Anishinaabe

perspectives of law, which were adopted by the Crown. How did you get involved in this case? How did I get involved? 1995 or thereabouts, the chief of White Sand, who has since passed away quite a while ago, he had called me into his office to discuss a totally separate issue involving hydro. And we just got discussing because I'm a fan of history, if you will, knew a little bit about the treaty, and we discussed why the treaty had not been honored, why the augmentation

clause, the promise to increase the annuity, the share of the wealth, had never happened. So your involvement in this goes back almost 30 years. Almost, yeah. Amazing. Okay, David Navagabo, how about you? How did you get connected to this? Well, just maybe to add to Mr. Shakhtar's comments on the treaty, it's important to note that their

nation to nation agreements between the Anishinaabe nation north of Superior and of course north of Lake Huron and that those those treaties were entered into with the crown in right of Great Britain that was the treaties were entered into in 1850 prior to the birth of Canada as we know it today. So the treaties were actually pre-confederation treaties with the British Crown. Good point. Now how did you get involved? I got involved the interest in the in the action, the claim was around probably as long as Mr. Schachter has been involved since the 90s. There's been a lot of work undertaken by the chiefs from the Lake Huron region to organize and try to come together to move the claim forward for whatever reason that didn't occur

till probably about 10 years after the Red Rock and White Sand case was launched. That's when I became involved. And we started doing the research and also because there's 21 First Nations in the Lake Huron region, there was an effort made to pull the 21 First Nations together, organized into a trust. And then we were able, after the research was done and the trust was organized, to launch

the litigation. You know what, it might be helpful at this point if we just brought up a map so we can show everybody what part of the world we're talking about. Sheldon, if you would, thank you. There's the graphic there. And for those who are listening on podcast and can't see this, let's just talk about what we're looking at right now. On one side, the highlighted Robinson Superior Treaty region.

On the other side, the region where the Robinson Huron Treaty nations are located, and this wraps really north of Lake Superior, right around to, if you think of Lake Superior as a wolf's head, right past the eye of the wolf's head, then coming south and east and really covering a significant swath of territory east of Lake Huron as well. Chief Bell, maybe I could ask you, why is this land considered so valuable to First Nations in this province? So good evening, everyone.

Thank you for inviting me to this panel. And I could say, as recently elected chief in my position for one kilometer near, that this area, this land, and actually the whole country has been very sacred to Indigenous people since time immemorial. and having a father who was in his nineties and share and provided the understanding of the storage shift that we all have for the land. That is, I think, what is so important for people.

We need that. Although treaties were signed, we are still responsible to ensure that the land is being kept sacred and is going to stay as pristine as possible that it can over time of a morgue. It was actually back in July that the Supreme Court of Canada made a decision regarding the Robinson Superior Treaty. And here's part of what the court said in its decision. Today, in what can only be described as a mockery of the Crown's treaty promise to the Anishinaabe of the upper Great Lakes,

the annuities are distributed to individual treaty beneficiaries by giving them $4 each. For almost a century and a half, the Anishinaabe have been left with an empty shell of a treaty promise. Given the longstanding and egregious nature of the Crown's breach, a declaration alone will not help repair the treaty relationship or restore the Crown's honor.

Duke Pelletier, that's some pretty tough language from the Supreme Court of Canada. How do you react to it? Well, I think it's something that we expected the Supreme Court to really challenge the federal and provincial governments on their approach to honoring the treaty promises themselves. I think it's been very clear that the Anishinaabe peoples have been carrying the burden of treaty for over a century. And it's just now that the courts, that we have to use these colonial systems to actually

convince and compel the Crowns to get back to the table and treat the treaty responsibilities with honor and respect. Harley, I'd like to get your reaction too. When you read that from the Supreme Court of Canada, how did you react? Well it was a recognition that was long overdue. It was a recognition that I was glad to see because my hope is it'll spur on some real action by the Crowns to make good on the promise. David it does not seem to have done so yet. In fact the government of Ontario appealed the first two stages of the trial

and then filed an appeal to the Supreme Court of Canada a couple of years ago. Did you expect them to do that every step of the way? Well, it's important to note that Canada didn't appeal. Ontario did appeal, and it was unfortunate really that Ontario didn't take the occasion, at least even with the initial decision from the trial court, Justice Hennessy, to undertake good faith negotiations. But that's been a bit of the history of the Crown over the years to be somewhat adversarial.

We're hoping, as Mr. Tractor has indicated, that the Crown will change its tune now that the decision has been delivered by the highest court in the land, that the Crown needs to act more honorably, particularly with regard to these treaties, but with regard to treaties across the country. Let me get Duke on that as well. Many outstanding claims.

Yeah, Duke, let me get you. How disappointed are you that the Ontario government has basically appealed every step of the way? Well, I think the provincial government itself has clearly taken a legal approach. I think that we've heard a lot of great things from both levels of government coming out of their Truth and Reconciliation Commission, Royal Commission on Aboriginal Peoples reports. However as noted some of the action is a lot slower than we would like but we do know that on a political perspective I believe that some of the leaders there truly do want to do something and have

have put forward an offer to truly sit down in a council fire so we're hoping that the action is a little bit more meaningful and a little bit more quicker. Well David rightly point out that while the Ontario government has been appealing every step of the way, the federal government has not. And in fact here's a statement from Crown Indigenous Relations which goes like this. We welcome the Supreme Court of Canada's July 26th decision which provides clarity on the annuity promise made in the Robinson Huron Treaty and the Robinson Superior Treaty. The Government of Canada did not file any appeals in the Restual White Sand litigation

and has sought a negotiated resolution with our treaty partners outside of the courts. We believe that is the best way to address outstanding issues and achieve reconciliation with Indigenous peoples is through negotiation and dialogue. We also welcome the Supreme Court of Canada's direction with regard to the Robinson Superior Treaty and the White Sand litigation. We have begun this important work and we look forward to continuing those discussions directly with the First Nations and Ontario to advancing our joint work together at the negotiating table.

Okay, Chief Bell, your reaction to that statement from Crown Indigenous Relations. Well, I certainly think that, yes, we do need to have discussions and conversations. And looking back in the history, this is the way Indigenous people had conversations with the Crown. And it was in a circle, Confederacy kind of a situation where you know all the significant parties were sitting there

and there was lots of respected dialogue and listening and consideration done. It was all done at that time you know without any written rules on behalf of the First Nations and pursuant people that were there at the time and fast forwarded to the future now that we've had adopt a colonial system and hire lawyers and legal entities to certainly negotiate and have conversations on our behalf because we know that we cannot retrace history and go back to the ways we did so we certainly think that we cannot retrace history and go back to the ways we did. So we certainly think that we were not being recognized and afforded those opportunities. And so now today is the day that the first nations in Ontario and in those treaty areas feel like we need to be more substantive

and more standard foreign in our comments and our concerns on what's going on and how we're going to move forward and ensure that our people prosper into the future. Well, for what it's worth here, we did reach out to the Ministry of the Attorney General of Ontario for their comments on things and well, it's not quite as effusive as the government of Canada's. Let's put it that way. Here's what they say, as the litigation relating to the Robinson Superior Treaty remains before the courts, it would be inappropriate to comment, period, close quote. Now regarding the Robinson Huron settlement,

we asked the AG's office for comment, but we didn't get anything back in time before we embarked on this program. So OK, Harley, let's go at this now. During the trial, we heard David mention Patricia Hennessey in this. She apparently took an approach which integrated Anishinaabe law and Canadian law

into that testimony into the court proceedings. An interesting melange of the two. What did that actually look like in court? What it looked like in court was you had ethno-historians testifying. you had Anishinaabe elders testifying, you had experts testifying about Anishinaabe perspectives. And the important part was the recognition that, and the evidence supported that coming into the treaty talks in 1850, Robinson adopted the Anishinabe protocols, the Anishinabe way of doing things,

embraced them, and that was the core value, core values, that find their way into what Justice Hennessy said was respect, responsibility, reciprocity, and renewal. Let me get Duke Peltier on that. How important was it for you to see both traditions, both legal histories represented in that courtroom? Well, I think it's what should be noted is that our approach has always been that we require ceremony to begin anything that's important to our people. And I think having our elders as well as Sarah Mody, our Eagle Staffs, our pipes being present in the courtroom was something that brought pride to many of our many of our citizens. In the open

court setting that was held in Little Current, many of the students were brought in by the bus and it was something that they were fortunate to see that our own ways were on par with the common law system and in fact that the court itself accepted that our way of life was just as important and our perspectives were just as important as a common law system. So we got to bring a positive perspective into the court so that our younger children and younger generations would be able to see that it is a tool that could be used to address some of the good that we're seeking for our communities. You mentioned Little Currant, we should just point out for those who don't know that is I guess the biggest town on

Manitoulin Island in the northeast corner of the island not too far from Mekwemkong which is where you are. Chief Bell, the 10 billion dollars from last year's settlement has just been given to the Robinson Huron Treaty Nations involved and I guess I want to find out how do you figure out how to disperse that much money? Well this was a very convoluted conversations at the leadership table. Each nation was given X amount of dollars and each nation then was to determine what they were going to do with those dollars. And I can tell you for my community being one of the larger first nations, we had many,

many, many discussions at the leadership table. We consulted elders, We consulted our youth. And we consulted our women on how do we see this money being distributed. And we knew as well that we were not going to distribute it totally 100% equally across the nation, because we wanted to ensure that the seven generations coming before us that we'll have some prosperity as well.

And we wanted to ensure that if we knew that if we didn't get the funding dollars that we consistently get, and maybe they deteriorate over the years, that we want to ensure that we could suffice and that we could propel ourselves into other negotiations into the future. Duke, I'm going to ask you a very blunt, and maybe some people will consider politically incorrect,

question but here we go. Are there any concerns about what some community members might do with that money? Others, definitely some concerns, but I can reassure you that some of those concerns were unfounded. In fact, I've heard many positive responses from individuals that have clearly done what many people wish to do and that is to give themselves a head start in their

lives. Many people have become debt-free. Many people are building homes. Many people have paid down their mortgages. So it's reassuring to see that many of the concerns were clearly unfounded, that we were looking to short-circuit, I guess. But I think at the end of the day, most of the individuals have clearly done good things with the funds that they received.

David, I want to follow up with you because you know I may be misreading this but you look like you blanched a little bit when I asked that question and I want to get your reaction to it. Well one of the really important points and there are a shortage of funds all over but the elders are really important for this you know and we have large population of elders a lot of concern over their ability to survive and to live a comfortable life so I think it's been a great contribution to the elders who had very little funds to to live in their retirement years. So to be able to have a little more comfortable life,

to not worry about food on the table and proper housing, or maybe a vehicle. I think those are some of the gratifying things that I've seen in the community. They don't have to worry about living day to day quite as much as they did prior to the settlement. I don't know how much Harley's going to love this next question. Maybe I'll go to Chief Bell with this and let Harley just listen to it for a second.

But Timmons Today reported that this summer you and another chief brought a new case to court and here's the quote, arguing that the legal fees need to be reassessed after the Robinson Huron litigation fund overpaid lawyers by more than 400 million bucks. What's going on here? Well, I could tell you that I want to be very minimal with my conversations on this. It's still before the courts and that's kind of where I'm thinking. Harley, you want to word on this? Look, lawyers do work.

Lawyers deserve to get paid a fair and reasonable fee. The issue of what's fair and reasonable is before the courts. And I am quite happy and content to know that the judges understand what fair and reasonable means. My clients understand what fair and reasonable means. My clients understand what fair and reasonable is. It'll never be a problem, I don't think, for me or the Hurons, because lawyers are only ever going to get paid

what's fair and reasonable. OK, how did the $10 billion figure, how did they arrive at that? Well, that you'd have to ask the Hurons. I can't speak to that. OK, who wants to jump in on that one, the $10 billion? Well, I think I can start with that there, Steve. OK, go ahead, Duke.

I think the turning point for the Hurons was that there was clearly an indication from the Court of Appeal, the Ontario Court of Appeal, that they sided with the Hurons again, which set apart some discussions with both levels of government. And it was through discussions with myself and Chief Dean Sayers as well as the both ministers, it was important for us to sit down clearly in a council fire, meaning that the ministers who were representing the Crown needed to sit down clearly in a council fire, meaning that the ministers who were

representing the Crown needed to sit down with all the leaders of the Robinson Huron Treaty. So it was on December 5th of 2022 where we sat with them in Ottawa in ceremony, smoked our pipes with them, and it was clear that there was an indication that they wanted to clearly put forward a settlement amount for discussion. So through a series of discussions after this council fire, it clearly came into focus that there was an agreement that was imminent and needed to be considered and put before the leadership. So that was how the $10 billion amount came about. Okay, now Harley, in one of the cases that, now is it one of the other cases that you're on?

Somebody's asking for $126 billion, not $10 billion? That's quite a vast difference. That is a difference. Which tribe is that? Well, that is the whole Robinson Superior Treaty Bands. So while the Hurons settled for $10 billion, that offer was not made to the Robinson Superior Bands. And so what the Robinson Superior Bands did is they gathered their evidence, went to court,

had a Nobel Prize-winning economist, Professor Stiglitz from New York. Joe Stiglitz? Yes. We've had him on this program. He's a big deal. He is a big deal, tremendous guy, very, very eloquent, intelligent. He gave evidence.

We actually did the work required to prove what the wealth was from the Robinson Superior Territory that was available to be shared. And the highest number is $126 billion. Now, that's assuming various assumptions, like rates of return that are favorable from the First Nation perspective, but reasonable, that were supported by Professor Stiglitz. But the range in court was anywhere from Ontario took the position that it was minus $4 billion to up to $126 billion. So if you can imagine, Ontario came to court in stage three and argued and said,

you know, this territory has been a drain on the provincial coffers. It's, you know, we've lost $4 dollars over the years. So there's nothing to share. So it makes it difficult with that kind of approach to reach a settlement. I'm hopeful that through the new process that the Supreme Court of Canada has demanded, there will be a breakthrough. David, I guess people have to remember here that what you and others are trying to right are wrongs that have been committed for about a hundred and seventy-five years. And if the numbers seem very big, it's because the time First Nations have waited for justice is very long. Is that fair to say? That's fair to say. In fact, the Supreme Court of Canada

cited some of what they had to say. They were pretty clear in indicating that there may be a sticker shock to some of these numbers, but it's because the breaches have been egregious and for so long. As Duke indicated, for the Robinson Huron, Nisnabeg, there was an interest in getting a settlement. We could have litigated for a longer period of time

and was concerned about how long this would take and fatigue setting in. We're hopeful that the superior First Nations will come to an agreement with the Crowns but that's for them to decide. In the Robson Huron context the numbers were also very significant and the way that the chiefs wanted that to be known because the numbers the value of the territory 150 170 years was for the superior here on region was the neighborhood of about 500 billion you know that is actually the contribution that the Nishnabe have made to the Ontario and to the Canadian

economy according to Professor Stiglitz who was retained initially by the Robson-Tirón Treaty Litigation Fund to bring forward evidence of value of the territory. But that is an impossible number really for the Crowns to pay. So it was out of consideration for the value and an interest in moving forward with reconciliation, getting the treaties implemented. Of course, there's also an important value to the go-forward aspect of the treaty implementation. Well, let me pick up on that if I can. Yeah, let me pick up with Dukha on that if I can, because with just a few minutes to go here in our discussion, I think it's worth trying to figure out

the overarching significance of coming to an agreement, of all sides coming to an agreement here, and what that would mean for future relations going forward. Duke, can you help us understand that? Well, I think just to pick up a little bit on David's comments, the intention of the leadership in the Robinson Huron was to ensure that our elders who were currently living also receive some benefit. So that had a hand in allowing for that decision to be made to accept the agreement, but it was also clearly stated by our leaders that they wanted to ensure that the relationship was renewed, it was respected, and that the responsibility of the treaty itself

and implementing the treaty was done to the fullest extent and that was going to be done through respectful relationships with the Crown, with them sitting down with our leaders on a regular and annual basis to discuss the treaty and their obligations. Chief Bell, can I get you on the, and have to say parenthetically here, the current federal government, I think most fair observers would say,

have taken some significant steps over the years in trying to improve reconciliation. Not perfect, but they've made some progress. How significant a piece of the puzzle would be getting this right in terms of improved relations among First Nations and the rest of Canada? Yes, so all of Canada is aware of our 10 billion dollar settlement agreement and Canada also is aware that the Indigenous people of this country and Indigenous people in this area particularly are going to stand up and we want to embrace our neighbors.

We want to have a fruitful life like everyone else. of what's going on currently across the country is that Canada now is realizing and understanding and saying, hey, we didn't do such a great job and we want to do better. And the way we're going to do better is to have good shared relationships with our indigenous folk across the country. So I do applaud Canada for trying that. And as you stay in, it's not the best. But it is getting better. And we're making the inroads daily to have embraces with all of our parkers, all of our friends, all of our neighbors, whether it be in government industry or anywhere else.

So yes, I do agree that our movement's forward and a good path. Harley, I got 30 seconds left. Put a bow on this discussion for us, if you would. OK, I guess, look, to borrow a phrase, Canada can be great again. A healthy, prosperous Anishinaabe nation taking its rightful equal part in Canadian society,

it helps all Canadians. All Canadians should be happy with the Huron settlement. All Canadians should look forward to a healthy and prosperous Anishinaabe nation as equals. And it's a great thing for Canada if that happens. You really want to take a Donald Trump slogan and wrap up the discussion with that. Harley. Okay. Your call. Very good. My attempt at humor. It worked. Thanks everybody for participating in our program tonight.

Chief Karen Bell, Duke Peltier, David Navagabbo, Harley Shachter. It's been great having you on TVO tonight. Many thanks. Thank you. Thank you. Thank you. Thank you. Thank you.

Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.

Thank you. Thank you. Thank you.