'There was nothing compelling them to listen to our arguments, to look at our evidence and so forth,' says Gull Bay Chief Wilfred King. Photo: supplied.
One of the negotiators of the Robinson Superior Treaty Settlement is wondering if the proposed agreement was doomed to fail.
Gull Bay First Nation Chief Wilfred King points to a directive from a Supreme Court of Canada decision that gave federal and provincial governments a one-sided power to determine how much money to pay out.
The high court gave Canada and Ontario a six-month timeline to negotiate a settlement agreement with 12 First Nations of the Robinson Superior Treaty area.
If an agreement couldn’t be reached, the court allowed the Crown to name a dollar figure they believed was fair – even if First Nations sitting across the negotiating table disagreed.
That’s what happened on Jan. 23 when the Crown set the payout at $3.6 billion – far below the expectations of First Nations leaders.
“ We didn’t accept it. We didn’t accept it. We said we thought it was too low. The chiefs unanimously rejected their offer,” King told APTN News. “ If we couldn’t come to an agreement, then the Crown could exercise its discretion and that’s exactly what they’ve done.
“There was nothing compelling them to listen to our arguments, to look at our evidence and so forth.”
Another treaty under a similar court order is the Robinson-Huron Treaty representing 21 Anishinaabe First Nations alongside the eastern and northern shores of Lake Huron. It was settled in 2023 for $10 billion – three times the amount offered to King’s treaty group.
But King believes even the $10 billion figure is too low.
“ We feel we’re not bound by what they received. We’re a separate group, and the value of the resources taken from our territory was estimated at around $135 billion,” he said.
The Robinson-Superior Treaty and the Robinson-Huron Treaty both have a unique clause not found in other treaties, called an augmentation clause.
At the time of negotiations, First Nations stated that if the value of revenue generated from their ceded lands increased, so too should the annuity payments to individual band members.
When the treaties were negotiated in the 1850s, individuals got $1.60. In 1855, First Nations pressed for an increase and got $4 per person. There were no further increases for almost 150 years.
The Robinson-Superior Treaty includes 12 First Nations including Fort William First Nation, Red Rock Indian Band, Biinjitiwaabik Zaaging Anishinaabek, and Pic River First Nation.
It encompasses a massive territory in northern Ontario, stretching from Batchewana Bay to Pigeon River and inland to the watershed separating the Great Lakes from Hudson Bay. This land, rich in minerals, forests, and waterways, has fuelled industries and economies for over a century.
The treaty groups launched separate court cases decades ago, leading to a groundbreaking victory in the 2021 decision of Ontario (Attorney General) v. Restoule at the Supreme Court of Canada.
The court found that the Crown had failed to meet its obligations under the treaty, specifically the augmentation clause.
The justices unanimously ruled that the Crown’s failure to adjust the annuities violated the spirit and intent of the treaty. They emphasized that the treaty was a binding legal agreement, and the court directed the Crown to engage in good-faith negotiations to rectify the breach.
But are negotiations in good faith when one side can wait out the negotiations and make a decision?
“ That’s one of the things we’ll be arguing when we go back to court before Justice Hennessy,” said King. “I’m hopeful that Justice Hennessy will intervene on our behalf and either declare the quantum of compensation or maybe send us back to the negotiating table.”
The earliest opportunity to go before Hennessy at Ontario Superior Court will be in June.
It’s not a sure thing that they will get more than the $3.6 billion the government offered, said King.
“She may just say the crown was reasonable. So we’re not a hundred percent sure how that’s gonna go.”
