Treaty Talks and Tensions: The Legacy of the Robertson-Huron Treaty and Indigenous Land Rights

In 1791, the Constitutional Act subdivided present-day Quebec and Ontario into Upper and Lower Canada. Among the numerous complications brought on by the enactment of this bill, the federal government expropriated a large majority of Indigenous land. While previously designated as “Indian Territory” by the Royal Proclamation of 1763, the aforementioned plot of land was retitled to land of the province of Upper Canada. The government was to purchase the land held by the Bands through the procedure outlined in the Royal Proclamation -- and they did just that – negotiating aggressively, and often in bad faith, with Bands across Lower Canada throughout the turn of the 19th century. The land of the Robertson-Huron treaty was particularly coveted; the discovery of copper in the upper Michigan peninsula led prospectors to believe that there were similar deposits on the other side of the Great Lakes.

The Rise of Prospecting and Tensions

In 1845, the Crown Lands Department began to issue mining permits for land along the north shore of Lake Superior. The Indigenous peoples of the region, especially Garden River First Nation, had become frustrated with the sudden influx of prospectors into their land without permission or compensation. Tensions culminated in the Mica Bay Incident, where a group of 30-100 First Nations and Metis people sabotaged a Quebec Mining Company operation.

After five years of tension, the provincial government sent William Benjamin Robinson up north to negotiate a purchase of “as much land as possible.”[1] Armed with 7,500 pounds to cover the initial cost and annuity payments, Robinson began negotiations on August 31st, 1850, with Chiefs Shinguakouse and Peau De Chat of Lake Huron and Lake Superior Bands, respectively. By September 9th, the talks had concluded. Each collection of Bands was paid 2,000 pounds up front, with 500 pounds paid out annually from the profits accrued on the newly purchased lands.

The Robertson-Huron Treaty Negotiations

The Robertson-Huron treaty included an “Augmentation Clause” previously unheard of within treaty litigation: payments were promised to incrementally increase conjunct with profit on the land. Initially, Bands received around 40 pence per person, rising until 1874, when the annuity payment was capped at one pound (four Canadian dollars) per head. Adjusting for inflation, this payment would be worth roughly 388 dollars. The provincial government refused to adjust payment to inflation; one hundred years later, the Huron and Superior Anishinaabe still receive only four dollars per person.  In 2001, the Lake Superior Anishinaabe filed a claim “seeking declaratory and compensatory relief relating to the interpretation, implementation, and alleged breach of the Augmentation Clause.”[2] The Lake Huron Anishinaabe followed up with their own claim in 2014. The claim was divided into three stages: Stage One pertained to treaty interpretation, Stage Two to the Crown’s limitations and immunity, and Stage Three to damages and liability. The central question of treaty interpretation deals with the “honour of the Crown” – whether they should have increased payments to the Lake Huron and Superior Anishinaabe despite the initial cap of $4. Ultimately, the SCC found that “the central goal of the treaty was to renew their relationship with the Crown… What the Treaty promises is . . . an ‘ongoing relationship’ with procedural and substantive aspects. The Crown cannot fulfill its duty by paying an arbitrary sum of money without engaging its Treaty partner.”[3] The Crown had a responsibility to maintain and update the Augmentation Clause and was consciously negligent. The SCC ruled that the Crown is responsible for providing “honourable compensation” to plaintiffs for the annuities owed from 1875 on.

Future Implications and Questions

Looking forward, this decision raises serious questions about the Crown's responsibility to uphold ‘ongoing relationships’ with all First Nations that signed treaties after 1763. Are other First Nations that signed annuity deals without an Augmentation Clause, such as the Ojibway and Cree of Treaty 9, entitled to compensation? Are other nations entitled to compensation for the considerable profit the Crown has enjoyed from their land? What exactly is the line between negligence and finality in treaty negotiation?

[1] https://www.rcaanc-cirnac.gc.ca/eng/1100100028974/1564412549270#

[2] 2024 SCC 27 introduction para 2

[3] 2024 SCC 27 para 300