Dollar value of resources to be debated as final stage of treaty annuities trial begins

The final stage of a complex trial over the payment of treaty annuities in northern Ontario kicked off Monday with one group of plaintiffs pursuing negotiations and the other in court panning the provincial government.

The case concerns a clause in the 1850 Robinson Huron and Robinson Superior treaties between the Anishinaabe of the upper Great Lakes and the Crown, which promises to increase the annual payment, or annuity, as the territory produces more wealth.

The annuity hasn't increased since 1874, when it was capped at $4 per person. In the previous stages of the trial, the Anishinaabe successfully argued this breaks the treaty, a ruling the Ontario government appealed to the Supreme Court of Canada.

While that's scheduled for the fall, the trial continues in Ontario's Superior Court of Justice in Sudbury.

Harley Schachter, lawyer for the Robinson Superior treaty signatories, argued in court Monday that Ontario's experts have dreamed up a "counterfactual world that doesn't exist" by suggesting the modern-day value of the resources taken from the land is negative $11 billion.

This would mean the Anishinaabe are owed nothing in compensation for resources taken from their territory for 173 years.

"Ontario's vision remains an impoverished vision of the ongoing future treaty relationship, and that does not bode well," he said.

"There can be no assurance that any healing is on the horizon."

Alternative accounting models go as high as $193 billion, Schachter said, and the plaintiffs plan to call Nobel prize-winning economist Joseph Stiglitz to calculate the value of the resources taken from the territory.

The court split the case into three stages due to its complexity, with stage one concerning whether the Crown is duty-bound to increase the annuity. Stage two concerned whether defendants Canada and Ontario could claim Crown immunity.

The plaintiffs have won so far, but the future of the case is far from certain. Stage three concerns liability: who should pay and how much.

Schacter filed a claim in 1999 on behalf of Red Rock Indian Band and Whitesand First Nation. Twenty-one other Anishinaabe First Nations formed the Robinson Huron Treaty Litigation Fund and filed their own case in 2012.

While separate, the two groups participated in the same trial.

The Robinson Huron group however is now in settlement talks mediated by retired senator and former Truth and Reconciliation Commission chair Murray Sinclair.

Sinclair stepped down recently for health reasons, but the group said in a Monday statement they "will continue to work together at the negotiation table to try to reach a negotiated outcome outside of the courts."

Meanwhile, inside the court, Schachter urged Justice Patricia Hennessy to view the Crown's purported newfound embrace of its treaty duties with scepticism.

"The past 173 years provide no comfort that any negotiations with the Crown would result in a fair result for the Anishinaabe," he said, arguing that trusting Crown governments to uphold the treaties now would be like trusting a fox to keep guarding the chicken coop.

"After 173 years of government neglect and inattention, it is only fair and just for the chickens to come home to roost."

Ontario and Canada are scheduled to respond with their opening statements Tuesday.