The chair of the Robinson-Huron Litigation Fund doesn’t know at this time if either the federal or provincial governments will appeal a court ruling that says annuities to First Nations should have increased over time.
Mike Restoule says what’s he’s heard so far is the Ontario government is studying the judge’s ruling and is not prepared to make a statement at this time.
Restoule says he’s read media reports that appear to indicate the federal government may move toward reconciliation rather than appeal the ruling.
At issue is Judge Patricia Hennessey’s decision on December 21st where she ruled both governments should have regularly increased the annuity based on the terms of the Robinson-Huron Treaty.
Restoule says the annuity was based on revenue both governments would have received from things like licensing fees and taxes received from mining and forestry companies.
Under the Treaty, as those revenues increased over the years following 1850, then the annuity would also rise.
In 1850 the annuity was $4 a person and it’s never risen above that dollar figure in all the years since the Treaty was signed.
The federal and provincial governments have 30 days from the date of the ruling to appeal the verdict.
Restoule says if they opt to appeal, then it makes all the talk over reconciliation with Indigenous communities the last few years meaningless.
“It seems that reconciliation is just political if it comes to the sharing of revenue,” Restoule said.
“Reconciliation is not possible is what that would tell me.”
Restoule believes if appeals are launched there are several areas where he believes the governments will focus their challenge.
One deals with limitations whereby the First Nations took too long to take the matter to court.
In this case, the 21 area First Nations launched a legal claim in 2013 after years of talks with the senior government to raise the annuity failed.
“So if you delay your case for a long time to bring it to court, it’s prejudicial to the other party,” Restoule said.
Restoule believes another appeals approach by the feds and province will be to say the matter of raising the annuity was dealt with by the courts in 1890.
“So they would argue it’s been settled and can’t be settled again,” Restoule said.
But Restoule doesn’t believe either approach carries much weight and will result in another loss for the senior levels of government.
Restoule addressed another issue and that is if only one government decides to appeal and not the other.
Using Ontario as an example of launching an appeal while the federal government wants to settle, the settlement talks might be stalled because he says Ontario would ask until its appeal is heard and a decision rendered.
“We could end up in this quandary and it is a complex matter,” Restoule said.
Another instance of how complex the case will be to settle is how much revenue the governments collected from fees and taxes over the last 150 plus years from forestry and mining companies.
Restoule said the litigation fund has asked the federal and provincial Crowns for an accounting covering this time frame.
Restoule admits compiling this information will require an in-depth study.
Restoule began working with the Chiefs and councils in 1992 on the annuities issue.