Ontario has claimed that it does not need to pay billions of dollars owed to First Nations over broken treaty obligations, arguing that it has already spent the sum on the historical costs of resource extraction and the infrastructure of “colonization”.
Canada’s federal government and the province have spent the last week in a Sudbury court arguing neither is responsible for compensating Indigenous nations for more than 150 years of lost revenues.
Five years ago, superior court justice Patricia Hennessey ruled that the Crown broke its pledge, made in two 1850 treaties, that it would increase payments to Indigenous peoples as more natural resources were extracted from their lands.
While the Crown has made payments since 1850 under the Robinson Treaties, it stopped increasing the amount in 1874, leaving the figure at C$4 (US$3) per person per year.
One group of First Nations have been in settlement talks that have since been suspended. But another group went to the courts for an answer.
Over the past week, the parties met for the third and final stage of the years-long court case as Justice Hennessy determines how compensation should be calculated.
The province has argued that it is the federal government, not Ontario, that owes any compensation money.
Even if the province did have a financial obligation, lawyer Tamara Barclay told court, the expenses associated with mining and forestry were so large it meant the Crown extraction in the region resulted in loss of between C$7bn and C$12bn.
Barclay cited “mining research, reforestation, insect control, forest fire management, surveys, land agents” in addition to the “expenses in connection with colonization roads and railways” as examples of the money spent by the province, adding that at most, the government would owe the Anishinaabe people C$34m.
Despite the immense revenues generated by industry, remote First Nations communities live in abysmal conditions, sometimes lacking access to clean drinking water.
The First Nations appearing in court have rejected the government lawyers’ arguments, suggesting that roads and railways were part of a broader nation-building effort and shouldn’t count against revenues owed to them.
Harley Schachter, a lawyer representing five First Nations, compared Ontario’s argument to that of a fox left in charge of the chickens.
“The fox turns to the judge, [with] egg all over his face, and in the most reassuring manner … says: ‘Look, judge, firstly, about the eggs, there are none, so I don’t know why the chickens are complaining,’” he told the court.
Schachter believes the First Nations are owed an 84% share of net Crown revenues from five sectors, including mining and forestry. On Friday Joseph Stiglitz, a two-time Nobel economics laureate, is due to give evidence in support of the First Nations’ arguments. Under that model of compensation, the communities could be owed more than C$100bn.
“Yes, the final amounts claimed as payable are large,” Schachter told the court earlier this week. “They are large because the [federal and provincial governments] did not honour the treaty obligation. They are large, but they are not untoward.”
