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Instead, their descendants argue, the Crown has long broken that promise, turning a profit from the minerals buried deep beneath the ground and the trees reaching high into the sky, while they are shackled by poverty, lack adequate housing and suffer poorer health outcomes than non-Indigenous Canadians.
“One treaty partner is getting rich at the expense of the other,” said Tangie, chief of Michipicoten First Nation, 144 miles north of Sault Ste. Marie, Ontario. “Our elders have always said that the only consistent thing about the treaty is that it has never been honored by our treaty partner.”
Now, that broken promise is at the center of a legal fight that’s being closely watched — not just because it could end with the largest litigation award in Canada’s history, but also because it could dictate how resource revenue is shared with Indigenous people in the future and the role of courts in reconciliation.
The case turns in part on a clause that’s found in no other treaty in Canada. But Kate Gunn, a partner at First Peoples Law in Vancouver who represented an Indigenous group that filed an intervention in the case, said its outcome “will have significant repercussions for Treaty First Nations and the Crown far beyond the individual litigants.”
Treaty interpretation is based on the text, oral pledges and the context of the negotiation, she said, and “for most, if not all, First Nation treaty parties … their understanding is, they agreed to share land and continue to benefit from it in a way that’s very similar to what the parties are arguing here.”
Tangie, 64, has watched trucks carry resources extracted from the land around her so others can reap the benefits. Michipicoten, meanwhile, has no paved roads, insufficient housing and a water treatment plant in need of upgrades. Its mostly elderly residents sometimes travel as far as Sault Ste. Marie for medical appointments.
“They thought they were negotiating a deal, or did negotiate a deal, that would bring in the good life for the community and for generations to come,” said Kaitlyn Lewis, co-counsel for some treaty beneficiaries in the case. The agreement “wasn’t sort of living in squalor” while settlers lived “lives of plenty.”
It was the mid-19th century, and among the Anishinaabe, discontent was simmering.
White prospectors had been moving into the upper Great Lakes region of the Province of Canada — a British colony — upending “mino-bimaadiziwin,” or the way of the good life for the Indigenous people who had long occupied and stewarded the land.
Some prospectors, whipped into a frenzy by the discovery of copper deposits on the U.S. side of Lake Superior, had been granted mining licenses from the colonial government — even though the Anishinaabe had never ceded the land to the Crown.
Chief Shingwaukonse was worried. The Indigenous warrior, who fought with the British in the War of 1812, said the “animals of the woods” on which his people relied were dwindling, and the new arrivals torching the forest were driving more away.
Tensions boiled over in 1849, when some Indigenous people occupied a copper mine. The colonial government dispatched British troops and eventually sent William Benjamin Robinson, a fur trader and politician, to Sault Ste. Marie to negotiate.
Under the two Robinson treaties, the Anishinaabe agreed “fully, freely and voluntarily” to cede their territory to Queen Victoria and her heirs and successors. In return, they would retain hunting and fishing rights, and the Crown would pay them a perpetual annuity.
The annuity was small at first. But the treaties contained a novel clause: If the land produced in the future an amount that would allow the government “without incurring loss, to increase the annuity,” then it “shall” be increased “from time to time.”
The first — and only — increase came in 1875, after Indigenous protests. It has remained at 4 Canadian dollars per person, or nearly $3, ever since.
The messy math of compensation
More than a century later, Raymond Goodchild, a member of the Pays Plat First Nation on the Ontario shore of Lake Superior, testified in an Ontario court that the Crown’s failure to honor its promise had left Indigenous people impoverished.
Goodchild grew up in a tar-paper shack, sleeping on a mattress scrounged from a dump. He noticed that nearby Terrace Bay, a booming pulp and paper town, had paved streets, a recreation center and a pool; Kimberly-Clark employees lived in homes with well-kept yards.
“My God almighty … I still envy those people that had those houses,” Goodchild, a 67-year-old veteran of the Canadian Armed Forces, testified last year in Sudbury, Ontario. He would walk pass them and think, “Wow, what a world — a completely different world from where I came from.”
His testimony was part of hearings in a legal dispute that began in the 1990s and revealed a chasm among the parties over the extent of historical wrongdoing and price tag of modern restitution.
In 2018, Ontario Superior Court Justice Patricia Hennessy agreed with the First Nations groups that brought the case that the promises of the Robinson treaties had been “completely forgotten” by the Crown and that the court had the “authority and the imperative” to impose duties on it.
An Ontario appeals court mostly upheld that ruling. Hennessy held hearings last year on the messy math of how much financial redress is owed, how it should be split between the federal and provincial governments and how the annuity should be recalculated going forward.
(The beneficiaries of one Robinson treaty reached a proposed $7.4 billion settlement with the governments in June. Hennessy’s decision on compensation will concern beneficiaries of the other Robinson treaty, but guidance on future recalculations of the annuity will apply to both groups.)
The Nobel Prize-winning economist Joseph Stiglitz, called by the First Nations groups to testify, told the court his economic model showed the beneficiaries are owed upward of $90 billion. “If you’ve owed somebody something year after year after year for 170 years, it’s a lot of money,” he said.
Canada claimed the beneficiaries are owed about $1.8 billion at most. Ontario argued it has no legal obligation to pay compensation, in part because it has incurred a loss in the billions of dollars from building the infrastructure needed to develop the area.
Harley Schachter, co-counsel for several First Nations, disagreed.
“After 173 years of government neglect and inattention, it is only fair and just for the chickens to come home to roost,” he told the court.
‘Accountability takes place in a courtroom’
Whether that happens could depend on Canada’s Supreme Court.
In November, Ontario admitted that it had broken its promise. But in an appeal of lower court rulings, the province argued before the high court that it’s not for a judge to order financial redress.
Instead, lawyer Peter Griffin suggested, they could help the parties resolve their differences via a declaration.
“Reconciliation rarely occurs in a courtroom,” he said.
“But accountability takes place in a courtroom,” Justice Sheilah Martin replied.
Wilfred King, chief of Gull Bay First Nation, heard adults talk about the Robinson treaties when he was a child. But it wasn’t until he was older that he grasped their significance — and their legacy.
“We’ve been kept in abject poverty,” he told The Washington Post. “Our people are living in a very, very dire situation. Those treaties — had they been implemented initially? First Nations would have probably been in a much better position than they are today.”
King said fair compensation could transform his community, 117 miles north of Thunder Bay, Ontario.
Tangie, the Michipicoten First Nation chief, said the long fight has left her feeling that “Canada has no commitment to reconciliation.”
“They say the words. They have all the nice words,” she said. “But there’s no action.”
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