Ontario says cost of 'colonization' infrastructure relevant in treaty annuity trial

The Ontario government says the cost of "coloniza‐ tion" infrastructure built to take natural resources from upper Great Lakes An‐ ishinaabe territory is rele‐ vant when determining those resources' modernday value to the Crown.

Superior Court Justice Pa‐ tricia Hennessy heard the ar‐ gument Wednesday in Sud‐ bury as she presides over the third and final stage of a years-long trial concerning the Crown's failure to raise the annual payment, or annu‐ ity, under the 1850 Robinson treaties.

The two identical treaties, covering the north shores of Lake Huron and Lake Superi‐ or, pledge to up the annuity if the territory starts producing more wealth. Hennessy has already ruled the pay‐ ment, capped at $4 per per‐ son in 1874, must increase.

She also ruled the new an‐ nuity must provide the treaty signatories with a share of the territory's natural resource wealth. While Ontario is ap‐ pealing that decision to the Supreme Court of Canada, Hennessy turns to the ques‐ tion of liability and damages.

On that, Ontario's lawyer Tamara Barclay told court the Crown shouldered huge ex‐ penses exploiting the re‐ sources — so huge that ex‐ traction in the region resulted in a Crown financial loss of be‐ tween $7 billion and $12 bil‐ lion during the relevant peri‐ od.

"Mining research, reforestation, insect control, forest fire management, sur‐ veys, land agents, as well as expenses in connection with colonization roads and rail‐ ways without which harvest‐ ed resources could not be moved to market" are some cost examples, Barclay said.

With those included, net Crown resource-based rev‐ enues, meaning money left over after deductions, "have been negative since about 1960," Barclay said.

'We will fight until this stops'

The plaintiffs disagree. Ontario's argument left Chief Patricia Tangie, of Michipicoten First Nation in the Robinson Superior Treaty territory, stunned.

"I just don't have words to express how disappointing it is," said Tangie in an interview Wednesday.

"How can the Crown claim that it lost money through re‐ source extraction? Like $8 bil‐ lion? That's absurd. It's ridicu‐ lous for them to even suggest that they lost money."

The Anishinaabe in the area signed treaties with a vi‐ sion of fair sharing and re‐ spect, but instead generation after generation watched as truckloads of lucrative timber and minerals were, and still are, taken from their lands,

Tangie said.

"And we can't use the land any more," Tangie said.

"It's disproportionate and totally unfair, and, as long as I'm alive, and I know that many of our people feel the same way, we will fight until this stops."

Michipicoten's legal team and the lawyers for the other Superior treaty signatories, represented by Red Rock Indi‐ an Band and Whitesand First Nation, denounced Ontario's argument as an affront to rec‐ onciliation.

They painted it on Mon‐ day in court as a preposter‐ ous idea that suggests "the lands are worthless to the Crown (and have been worth‐ less for 173 years), and thus entitle the Anishinaabe to nothing."

Ontario defended its posi‐ tion, calling the plaintiffs' pre‐ ferred accounting models, with one topping $190 billion, "excessive."

Other plaintiffs mistic' about talks

The sprawling trial was split into three stages be‐ cause of its complexity. It in‐ cludes two groups of plaintiffs who, until now, proceeded with litigation together.

That changed when 21 An‐ ishinaabe bands, all beneficia‐ ries of the Robinson Huron Treaty, adjourned their case in favour of confidential settle‐ ment talks.

Batchewana First Nation Chief Dean Sayers, a spokesman for the Huron treaty group, is optimistic

'opti‐ they'll reach a deal in the coming months. After trying every legal trick in the book to fight the case, Sayers said he suspects a shift in public opin‐ ion pushed governments to the table.

"The citizens of Canada and Ontario really have taken note of the atrocities that have been inflicted on Indige‐ nous people across the coun‐ try," he said.

"There's been, I believe, a lot of mismanagement over the decades, over the century and a half."

And despite the two An‐ ishinaabe groups' differing ap‐ proaches, they stand in soli‐ darity. Tangie and Sayers said the goal remains achieving a fair renewal of the treaty rela‐ tionship.

"I'm pretty optimistic," said Sayers of the settlement talks.

"Senior voices from both Canada and Ontario have mandates, are participating actively, and are really quick to respond to our collective perspectives and questions."

Tangie added, "Let's share the resources fairly. 'Coloniza‐ tion' and opening up the lands and the resources to all of Canada, we can't even con‐ sider that to be fair."

In addition to how much should be paid, Hennessy must decide whether Ontario or Canada should pay.

Canada's lawyers on Tues‐ day said Ontario should be held liable because resource revenues flowed to the provinces after Canadian con‐ federation. Ontario disputed that, urging the judge to hold Canada liable because up‐ holding treaties is a federal obligation.

Canada refused to pin an exact dollar amount on the resources' modern-day value, saying that's within Ontario's jurisdiction.

Ontario's appeal to the Supreme Court of Cana‐ da on Hennessy's previous decision is slated for the fall.