An Ontario Superior Court ruling, delivered December 2018, has lit the fuse for a political, cultural and economic time-bomb that will impact Canadians across the country, both Indigenous and non-Indigenous.
Ruling on a claim by the chiefs of 21 First Nations that were signatories to the 1850 Robinson Huron treaty, Justice Patricia Hennessy stated that the Crown had failed to appropriately increase the $4 annuities payable to every man, woman and child who were members of those bands from 1875 onwards. However, the issue of treaty annuities affects far more people than the roughly 30,000 Ojibway people involved in the Huron court case.
Annuities were the sole individual right written into the treaties between First Nations and the Crown between 1850 and 1921. Today, about three-quarters of Canada’s 750,000 Status First Nations people are eligible for treaty annuities, covering a territory west from the Quebec-Ontario border to the Rockies and north into Yukon and North-West Territories.
In the 1840s, when the Robinson treaties were being negotiated, the chiefs and their advisers bargained hard for the inclusion of two rights that would ensure the future well-being of their people: the right to continue to hunt, fish and trap freely on ceded lands (with some limitations), and an annuity payable to every man, woman and child.
The Huron and Superior negotiators knew that the pressure to sign the treaties came from the Crown’s desire to clear the way for the mining of coal, copper and other valued natural resources. To ensure that the first people would prosper along with the newcomers in the building of a new Canada, both treaties contained an “escalator clause” that linked the annuity to the wealth generated by the resources on the ceded lands.
The escalator clause limited the annuity increase to a maximum of $4, “or such further sum as Her Majesty may be graciously pleased to order”. In other words, there was no real limit on how much an annuity could be increased on behalf of the Crown, other than the political will of the government of the day.
Building on the template of the Huron and Superior treaties, all eleven Numbered Treaties signed after 1871 contained the same two livelihood provisions to ensure the future well-being of the first people.
There was one important difference. The Numbered Treaties did not contain a specific “escalator clause”. It is possible that chiefs and advisers negotiating those treaties believed the land-value link would naturally apply to them, too. This would have been a reasonable assumption, given that the Huron chiefs triggered the escalator clause in 1874, when many of the numbered treaties were actively being negotiated.
The Huron and Superior band members did get an annuity increase in 1878, when Parliament voted to increase it from 96-cents to $4 per person. The Supreme Court of Canada weighed in on the issue, affirming in 1895 that, yes, on-going annuity increases were part and parcel of the contract between the first people and the Crown.
The 1878 vote in Parliament was the first and last time treaty annuities were increased based on the prosperity of the land. No formula was ever established to calculate future increases. The Indian Act in 1876 was silent on increasing annuities, and the federal government adopted a monetary policy of strict nominalism, so that the $4 or $5 annuity payable to every treaty man, woman and child would forever remain $4 or $5.
While all other key elements of the historic treaties have been modernized over time as a matter of federal policy, the annuity—the single individual right in the treaties—remains frozen in time. This very issue inspired the creation of the Treaty Annuity Working Group in 2002 as a special committee of the Social Planning Council of Winnipeg. It determined that a modernized annuity would directly address chronic issues of poverty and powerlessness if it were increased to reflect modern land values (a simple measure of land-based prosperity), extended to all Status First Nations people, and revenue-neutral.
Since 2009, individuals and bands representing Numbered treaties have been attempting to increase annuities through court claims or certification of class action suits. So far, none has succeeded. That is now likely to change.
Modernizing annuities requires only the will of the Prime Minister and Cabinet to make it happen. But it also requires the will of ordinary Indigenous and non-Indigenous Canadians to envision a path to reconciliation that honours the historic intent of the annuities to share the prosperity of the land.