The Ontario government says the cost of "colonization" infrastructure built to take natural resources from upper Great Lakes Anishinaabe territory is relevant when determining those resources' modern-day value to the Crown.
Superior Court Justice Patricia Hennessy heard the argument Wednesday in Sudbury 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 annuity, under the 1850 Robinson treaties.
The two identical treaties, covering the north shores of Lake Huron and Lake Superior, pledge to up the annuity if the territory starts producing more wealth. Hennessy has already ruled the payment, capped at $4 per person in 1874, must increase.
She also ruled the new annuity must provide the treaty signatories with a share of the territory's natural resource wealth. While Ontario is appealing that decision to the Supreme Court of Canada, Hennessy turns to the question of liability and damages.
On that, Ontario's lawyer Tamara Barclay told court the Crown shouldered huge expenses exploiting the resources — so huge that extraction in the region resulted in a Crown financial loss of between $7 billion and $12 billion during the relevant period.
"Mining research, re-forestation, insect control, forest fire management, surveys, land agents, as well as expenses in connection with colonization roads and railways without which harvested resources could not be moved to market" are some cost examples, Barclay said.
With those included, net Crown resource-based revenues, meaning money left over after deductions, "have been negative since about 1960," Barclay said.
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 resource extraction? Like $8 billion? That's absurd. It's ridiculous for them to even suggest that they lost money."
The Anishinaabe in the area signed treaties with a vision of fair sharing and respect, but instead generation after generation watched as truckloads of lucrative timber and minerals were, and still are, taken from their lands, Tangie said.Michipicoten First Nation Chief Patricia Tangie says the Anishinaabe beneficiaries of the Robinson Superior Treaty will fight to see their annual payment fairly increased. (Patricia Tangie)
"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 Indian Band and Whitesand First Nation, denounced Ontario's argument as an affront to reconciliation.
They painted it on Monday in court as a preposterous idea that suggests "the lands are worthless to the Crown (and have been worthless for 173 years), and thus entitle the Anishinaabe to nothing."
Ontario defended its position, calling the plaintiffs' preferred accounting models, with one topping $190 billion, "excessive."
The sprawling trial was split into three stages because of its complexity. It includes two groups of plaintiffs who, until now, proceeded with litigation together.
That changed when 21 Anishinaabe bands, all beneficiaries of the Robinson Huron Treaty, adjourned their case in favour of confidential settlement talks.
Batchewana First Nation Chief Dean Sayers, a spokesman for the Huron treaty group, is optimistic 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 opinion pushed governments to the table.
"The citizens of Canada and Ontario really have taken note of the atrocities that have been inflicted on Indigenous people across the country," he said.
"There's been, I believe, a lot of mismanagement over the decades, over the century and a half."Batchewana First Nation Chief Dean Sayers speaks at a news conference in Ottawa in 2020. (CBC)
And despite the two Anishinaabe groups' differing approaches, they stand in solidarity. Tangie and Sayers said the goal remains achieving a fair renewal of the treaty relationship.
"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. 'Colonization' and opening up the lands and the resources to all of Canada, we can't even consider 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 Tuesday said Ontario should be held liable because resource revenues flowed to the provinces after Canadian confederation. Ontario disputed that, urging the judge to hold Canada liable because upholding 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 Canada on Hennessy's previous decision is slated for the fall.