ROBINSON-HURON—All 21 First Nations in the Robinson Huron Treaty Litigation Fund (RHTLF) including all First Nations on Manitoulin Island, have completed all the required documentation to move forward with the signing of the settlement. The governments of Canada and Ontario continue their work to complete the internal approval processes as the next step. The proposed settlement agreement had originally been announced on June 17. Serpent River First Nation was the last to sign on.
In an update on November 4, the RHLTF indicated, “all parties are committed to making this settlement a reality for communities living on Robinson Huron Treaty Territory. We hope to have the settlement signed by the end of November 2023 or each December 2023. A date for executing the settlement agreement cannot be set until Canada and Ontario complete their internal approval processes. Once the settlement agreement is signed by the parties, we will go before the Superior Court of Justice to dismiss the past compensation portion of the claim.”
“Once finalized, the settlement amount will be distributed to the 21 nations from the RHTLF Trust based on a formula agreed to by the treaty leadership and their councils. Each nation will decide how to distribute their own share of the settlement amounts after receipt from the RHTLF Trust (with the distribution expected to take place in the spring-summer).”
“Until then, the Robinson Huron First Nations will continue the work that was started at the community engagement sessions this past summer,” the release continues. “These sessions opened important conversation with communities we want to continue.”
“We heard from you, our community members, about the need for more communication at a community level,” the RHLTF continued. “We heard from many community members that you want to communicate directly with your chief and councils to have your questions answered and provide your input into discussions about the use of the compensation funds. A summary report of the prior engagement sessions and notes from those meetings will also be available to you. We trust that each First Nation has or will have more community information sessions in the coming months.
On November 7-8, the government of Ontario’s stage one and two appeal is to be heard at the Supreme Court of Canada.
The Supreme Court of Canada will be hearing an appeal brought by Ontario seeking to overturn the decision of the majority of the Ontario Court of Appeal (ONCA).
In 2021, the government of Ontario appealed Justice Hennessy’s stage one and two decision, which found that the First Nation plaintiff’s claims are not barred by Ontario’s limitations legislation and that Ontario does not benefit from the doctrine of Crown immunity. This appeal was unanimously rejected by the Ontario Court of Appeal (ONCA). Ontario then submitted an appeal to the Supreme Court of Canada seeking to overturn ONCA’s decision.
Ontario will be arguing that the ONCA’s majority were wrong in upholding Justice Hennessy’s interpretation that Ontario had a mandatory and reviewable obligation to increase annuity payments. Ontario will also argue that awarding past compensation for historical treaty breaches is inappropriate and that the RHLTF should only be entitled to receive declaration from the court at a future stage three. This means that Ontario is claiming that the treaty should be interpreted to mean that increases to the annuity should be at the Crown’s discretion, and that it is not appropriate for courts to intervene.
RHLTF’s legal team will argue that the majority were correct in upholding Justice Hennessy’s interpretation of the augmentation promise. They will also argue that the ONCA made an error by overturning Justice Hennessy’s findings that the Crown had a fiduciary responsibility to increase its annuity payments.
