Feds' argument over $5 treaty payments 'disgraceful' tactic to delay lawsuit: plaintiffs

A debate over how to adjudicate Treaty 4 rights was at the core of a federal court hearing in Manitoba this week.

Chief Derek Nepinak of Minegoziibe Anishinabe First Nation, a community located in west-central Manitoba, filed an amended class-action lawsuit against the federal government in May of last year. Chief Lynn Acoose of Zagime Anishinabek in south-eastern Saskatchewan is also a plaintiff.

The statement of claim alleges Canada violated treaty agreements by not increasing $5 annuity payments to treaty members to account for inflation, a payment the plaintiff says was meant to provide purchasing power for essentials amid the shifting economic landscape in 1874.

The federal government argued in a statement of defence they are not liable for any damages, and only owe the annuity obligation of $5 per treaty member specifically written in the Treaty 4 text.

Lindsay Borrows, professor of Indigenous law at Queens University, says the lawsuit fits into a long line of grievances raised by various First Nations against the Crown for not upholding treaty obligations.

"We know that these written texts are not representative of the full negotiations of the treaties," Borrows said.

"We can conclude that the honour of the Crown necessitates increasing those annuities over time so that the Crown is not unjustly enriched while the First Nations continue to suffer."

Adversarial court system

The federal government opposed classifying the suit as a class action during a federal court hearing in Winnipeg on Thursday, arguing the matter should be tried as a representative action instead, a move lawyers for the plaintiffs called a delaying tactic.

"It is hard not to read into this … that, you know, they're [Canada] stalling and trying to make this more and more challenging and expensive for the First Nations," Borrows said.

Borrows says there are better ways to settle grievances than a forum such as Canada's adversarial court system: A tribunal system used in other parts of the world is more adept at responding to the unique nature of Indigenous treaty claims. 

"I would really hope that in Canada, we can find better ways to hear these types of claims so that First Nations aren't arguing around whether or not to have a class action or a representative action," she said

Nepinak says a class-action suit is the way forward in order to protect individual treaty members' rights, without having to access annuities through a chief-and-council mechanism.

"It's not appropriate, for even me as chief today, to tell people what their rights are, so that's what's at stake here," he said.

"The individual, such as myself — I can ground myself in in our ceremony, I can ground myself in our treaty teachings and I can take that into any form and fight for it," Nepinak said.

Nepinak's lawyer, Michael Rosenberg, says a class-action suit would allow his clients to immediately bring together as many as 74,000 beneficiaries of Treaty 4.

"A class action then allows the court to answer what each individual should receive by way of compensation," said the plaintiffs lawyer, Michael Rosenberg.

Under a representative action, individuals would not benefit from the lawsuit unless their First Nation participated in the case, Rosenberg says.

"So if your First Nation doesn't elect to participate, you as an annuitant of Treaty 4 won't be part of this case," he said.

Representative proceedings differ from class proceedings in that they require a court order to start at all.

"So you can see from the defendants perspective, more costs for the plaintiffs, delay and, potentially, lesser damages even if the plaintiffs are successful," Rosenberg said.

"All of those things make it attractive to push the plaintiffs into this representative action procedure."

Treaties 'meant to be living agreements'

Waywayseecappo First Nation Chief Murray Clearsky is seeking a similar class-action suit for his claim against the federal government, filed with Manitoba Court of King's Bench in January 2024.

Borrows says the Canadian government seems to be approaching treaties from a Canadian legal perspective instead of an Indigenous legal perspective.

"Treaties were meant to be living agreements that were continually renewed and were more like a marriage than a divorce," Borrows said.

"In other words, they're meant to be continually nurtured and not just signed, crossed and then kind of wipe your hands clean of any sort of ongoing obligations and discussions."

The proposed class action is seeking $100 million in damages, an accounting and compensation for "unpaid or underpaid" annuities, and changes to the annuity agreements so that the payments reflect inflation, along with other relief.

A procedural motion hearing for the matter to decide how the case would be litigated concluded Thursday.

Justice Russel W. Zinn advised he would reserve his decision to a later date, likely in a few months.