Bruce McIvor: "Reconciliation has become a four-letter word"

Viewing the Robinson Huron Treaty case within Canada's "Honour of the Crown"

Apr 08, 2024

In 2021, Bruce McIvor, lawyer, historian, and partner at First Peoples Law, published Standoff: Why Reconciliation Fails Indigenous People and How to Fix It.

McIvor wrote:

The Supreme Court of Canada has repeatedly stated that at its heart reconciliation is about reconciling the pre-existing rights of Indigenous Peoples with the assertion of Crown sovereignty. The phrase “assertion of Crown sovereignty” is a Canadian euphemism for the Doctrine of Discovery.

In this post, we will look at the ‘historic settlement’ of the Robinson Huron Treaty Annuities Case as an example of McIvor’s critique:

At first blush, the Robinson Huron settlement looks wonderful. What could be better than Canada paying the Anishinabek for profits derived from their ceded lands?

But lurking beneath the surface — or we might say behind the curtain — are the troubling principles of “the honor of the Crown” and “Reconciliation”

‘Historic Settlement’ of the Robinson Huron Treaty Annuities Case

On January 23, 2024, the press reported that a $10-billion settlement agreement had been signed by all parties in the Robinson Huron Treaty Annuities Case — a case that began on September 9, 2014, when the Robinson Huron Treaty Litigation Fund filed a Statement of Claim against the Attorneys General for Canada and Ontario and Her Majesty the Queen in Right of Ontario.

The claim was for resource revenues under the September 9, 1850, Robinson Huron Treaty, “between the British Crown and the Ojibways of the north shore of Lake Huron”.

The Robinson Huron Treaty area stretches from Parry Sound to Sudbury, and North Bay to Sault Ste. Marie along the shores of Lake Huron. Some First Nations in the map area are not signatories to the Robinson Huron Treaty.

$10billion sounds like a lot of money.

But compare it to what the Narwhal, a team of investigative journalists, reported in “Billions have been made on Robinson Huron Treaty lands”:

Since the treaty’s signing, the region has witnessed well over a century of commercial resource extraction: nickel in Sudbury, copper in Bruce Mines, fishing on Manitoulin Island, uranium in Elliot Lake and more.

The Natural Resources Canada and Ontario Geological Survey 2015 added detail in its “GeoTour: Birthplace of a World Famous Mining District”:

To date, Greater Sudbury mines have produced a third of a trillion dollars of metal at today’s prices.

Let’s Dig In

The 1850 Robinson Huron Treaty and the Statement of Claim

The central terms of the Treaty were typical of land cessions: Money for land

[In exchange for] good and lawful money of Upper Canada…and for the further perpetual annuity of …like money…to be paid and delivered to the said Chiefs and their Tribes…each year, …the said Chiefs and Principal men, on behalf of their respective Tribes or Bands, do hereby fully, freely, and voluntarily surrender, cede, grant, and convey unto Her Majesty, her heirs and successors for ever, all their right, title, and interest to, and in the whole of, the territory above described, save and except [their] reservations….

A separate Treaty clause — the ’augmentation’ clause — was at the center of the claim litigation:

Her Majesty, who desires to deal liberally and justly with all her subjects, further promises and agrees, that should the Territory hereby ceded…at any future period produce such an amount as will enable the Government of this Province, without incurring loss, to increase the annuity… then …the same shall be augmented from time to time…[in] such further sum as Her Majesty may be graciously pleased to order….

Remember that phrase,“as Her Majesty may be graciously pleased…”

The Statement of Claim pointed out that the annuity had only been increased once, in 1874, despite the fact that enormous revenues had been produced in the ceded lands:

Crown resource revenues generated within the Treaty territory have significantly increased since the Treaty was originally signed in 1850. As such the Crown has benefited from those revenues …generated directly and indirectly as a result of, inter alia, Crown land sales, leases and licences; resource development activities, including forestry, mining, hydro and commercial fishing; as well as parks and recreation, including hunting and fishing.

The Claim said the legal issue was that:

The Crown … failed to act honourably under the Robinson Huron Treaty by failing to augment the perpetual annuity.

The issue went to trial under the case name Restoule v. Canada.

What is the “honour of the Crown”?

In her 2018 judgment, Ontario Superior Court Justice Patricia Hennessy explained it this way:

The honour of the Crown is a foundational principle of Aboriginal law governing the relationship between the Crown and Indigenous peoples.
Plainly and simply put, this principle requires that the Crown act honourably in all of its dealings with the beneficiaries of the Robinson Huron and Robinson Superior Treaties….

But this simply used “honourably” to define “honour”.

The plot thickened when Hennessy explained further:

The honour of the Crown has been a principle …since at least the Royal Proclamation of 1763, through which the British asserted sovereignty over what is now Canada and assumed de facto control over land and resources previously in the control of Indigenous peoples.
The Royal Proclamation is … the source of the special relationship between the Crown and Indigenous peoples, which requires the Crown to act honourably in its dealings with Indigenous peoples.

This language makes clear that Canada’s claim of “sovereignty” and “honor of the Crown” mirrors the US claim of “sovereignty” with its “trust relationship” and claim of “plenary authority” over Original Peoples.

As the US Supreme Court stated in Haaland v. Brackeen (2023): 1

This Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.

Haaland added:

The contours of this “special relationship” are undefined.

But in fact the “special relationship” has been defined. The US Supreme Court said in US v. Jicarilla Apache:

The “trust relationship” [is] “a sovereign function subject to the plenary authority of Congress.”

Lest there be any doubt about the mirroring of US and Canadian anti-Indian law, read what the Supreme Court of Canada said in the 1990 case R. v. Sparrow:

The honour of the Crown is involved in the interpretation of Indian treaties and, as a consequence, fairness to the Indians is a governing consideration.
[But] it is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown: see Johnson v. McIntosh (1823)….

🤯 Johnson v. McIntosh! “Christian Discovery”! 🤯

There we have it:

The “honour of the Crown” is a colonizer principle, arising from the Crown's assertion of sovereignty over Original Peoples and seizing control of their lands.

As McIvor put it:

Rather than denounce the Doctrine of Discovery, the Supreme Court of Canada has relied on it to build the framework for its interpretation of Indigenous rights.

“Reconciliation” emerged as an element of “honour of the Crown”

Justice Hennessy said:

The underlying purpose [of the honour of the Crown] is the reconciliation of Crown and Indigenous interests.

But what is “reconciliation”?

In one of its ordinary meanings, “reconcile” refers to harmonizing antagonistic ideas or positions.

For example, Justice Hennessy pointed out that the Supreme Court of Canada is trying to figure its way out of an internal contradiction in its own laws: the contradiction between a colonial claim of domination and the recognition of the free existence of Original Peoples:

The Supreme Court of Canada … has attempted to reconcile … two fundamentally contrary concepts,… namely the assertion of Crown sovereignty…and the pre-existence of Indigenous societies.

But this contradiction is not only internal to the Canadian legal system. It is external between Canada and the Original Peoples. On one side is Original Peoples’ free and independent existence; on the other side is the Canadian “assumption” of a position of legal superiority.

As Hennessy put it:

At the time of the Treaties and before, the Anishinaabe of the upper Great Lakes region were living in distinct societies, with their own social and political structures, as well as laws and interests in land.
The underlying purpose of the honour of the Crown is to facilitate the reconciliation of the pre-existing sovereignty of Indigenous peoples with the assumed sovereignty of the Crown.

One meaning of “assumption” is “pretense”. Here we again encounter Johnson v. McIntosh, where the US Supreme Court referred to its own claim of legal superiority as “an extravagant pretension”.

McIvor said:

Reconciliation fails Indigenous people, and all of Canada, because it rests on a legal house of cards — the morally reprehensible Doctrine of Discovery.

Was the Treaty settlement fair?

One view is that the settlement is an expression of the free will of the parties, including the First Nations, and is therefore fair by definition.

Another view is that First Nations agreement resulted from threats inherent in the 2021 decision of the Court of Appeal for Ontario.

While the Appeals Court “unanimously agree[d]” with Justice Hennessy that the honour of the Crown was at stake in the case, the justices split on what that “honour” actually requires.

Justices Strathy and Brown cited the Treaty phrase describing the possibility of increases in the annuity in…

…such further sum as Her Majesty may be graciously pleased to order….

They said:

The sharing [of revenue from the ceded lands] was intended to take place through the exercise of Her Majesty’s graciousness.

They concluded that:

The Crown is under an obligation to turn its mind from time to time to determine whether the… annuities can be augmented, having regard to the net Crown resource-based revenues from the Treaty territories and without incurring loss….

Hennessy’s conclusion that the annuity amount should reflect a “fair share” of revenues from the territories came under attack:

Justices Lauwers, Pardu, and Hourigan said Hennessy…

…erred in directing…[that] the payment of annuities correspond… to a “fair share” of the value of the resources in the territory.

In June 2022, the Supreme Court of Canada granted leave to appeal.

The First Nations may well have agreed to settle at this point because of the threat that the Supreme Court of Canada, on further appeal, might renew its embrace of Johnson v. McIntosh and the “pretension of sovereignty” and adopt the disagreements stated in the Court of Appeal.

Justice Hennessy’s encouragement to negotiate amidst the thorny legal issues apparently took hold, because in June 2023, the Robinson Huron Treaty Leadership, Ontario, and Canada announced a proposed settlement, leading to the actual settlement cited at the top of this post.

On January 23, 2024, The Robinson Huron Treaty Litigation Fund announced:

Chief and Council will begin local engagement sessions to provide information and make decisions on fund disbursement at a local level. Some communities are in the process of their sessions, while other communities have completed their community engagement sessions.