Modernizing Treaty Annuities · New York, 2008) and co-author of Bankrupting Physics: How today’s top scientists are gambling away their credibility (Palgrave Macmillan, New York,

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© 2 0 2 0 F R O N T I E R C E N T R E F O R P U B L I C P O L I C Y - M O D E R N I Z I N G T R E A T Y A N N U I T I E S

F R O N T I E R C E N T R E F O R P U B L I C P O L I C Y - N O . 2 P O L I C Y B L U E P R I N T S E R I E S

POLICY BLUEPRINTSERIES

FRONTIER CENTRE FOR PUBLIC POLICY

Modernizing Treaty AnnuitiesA Policy Blueprint

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By Sheilla Jones

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203-2727 Portage Avenue, Winnipeg, Manitoba Canada R3J 0R2 Tel: 204-957-1567

Email: [email protected]

The Frontier Centre for Public Policy is an independent, non-profit organization that undertakes research and education in support of economic growth and social outcomes that will enhance the quality of life in our communities. Through a var-iety of publications and public forums, Frontier explores policy innovations required to make the prairie region a win-ner in the open economy. It also provides new insights into solving important issues facing our cities, towns and prov-inces. These include improving the performance of public expenditures in important areas such as local government, education, health and social policy. The author of this study have worked independently and the opinions expressed are therefore their own, and do not necessarily reflect the opinions of the board of the Frontier Centre for Public Policy.

Copyright © 2020 by the Frontier Centre for Public Policy.

Policy Blueprint No. 2 • Date of First Issue: January 2020.

Reproduced here with permission of the author. Any errors or omissions and the accuracy and completeness of this paper remain the responsibility of the author.

ISSN 1491-78

ABOUT THE AUTHOR SHEILLA JONES Sheilla Jones, MSc, is an author and an award-winning Canadian journalist who has spent more than 25 years observing and writing about Indigenous political issues. She served as facilitator for the Treaty Annuity Working Group (TAWG), a special committee of the Social Planning Council of Winnipeg formed in 2002 to examine modernizing treaty annuities as a mechanism for empowering First Nations individuals and families. Sheilla authored the 2004 TAWG report on the results of the national conference hosted by TAWG in 2003, “Modernizing Treaty Annuities: Implications and Consequences”. Sheilla got a lively introduction to Indigenous politics while writing Canada’s first book on Métis politics, Rotten to the Core: The politics of the Manitoba Métis Federation (101060, an imprint of J. Gordon Shillingford Publishing, Winnipeg, 1995). In 1998-2000, Sheilla served as researcher for Jean Allard’s Big Bear’s Treaty: The Road to Freedom, published in 2002 in the policy journal Inroads. Sheilla is a former CBC-Radio Winnipeg reporter, news editor and news presenter who has garnered numerous journalism awards. She has been a senior television researcher for the CBC, and served as a political commentator on a variety of CBC national television and radio programs. With a keen interest in quantum physics and cosmology, Sheilla pursued a graduate degree in theoretical physics (University of Alberta, 2004). She is the author of The Quantum Ten: A story of passion, tragedy, ambition and science (Thomas Allen Publishers, Toronto; Oxford University Press, New York, 2008) and co-author of Bankrupting Physics: How today’s top scientists are gambling away their credibility (Palgrave Macmillan, New York, 2013).

POLICY BLUEPRINTSERIES

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The Issue

Almost all aspects of the historical treaties signed between Indian bands and the Crown between 1850 and 1921 have been modernized over the past forty years. The notable exception is the treaty annuity, the single provision in the treaties specifically benefiting individuals within the collective. Annuities are, today, $4 or $5 per person, unchanged from when the treaties were signed.

The historic treaties contained two key livelihood support provisions to provide individuals and families a degree of economic and political independence within the collective: the right to continue to hunt, fish, trap and otherwise pursue traditional activities on ceded lands, and annuities payable to every man, woman, and child belonging to those bands.

By federal government policy, annuities are paid directly to eligible recipients in the amount of $4 or $5 per year, either in cash or by cheque. The current Indian Act is silent on the valuing the annuity, how it is administered, and who is deemed eligible. These issues are a matter of government policy.

Canada, as a matter of policy, takes a strict application of the monetary law principle called nominalism when it

comes to annuities. The obligation of the Crown as stated in the treaties is annual payments of $4 or $5; thereafter the payments remain $4 or $5, regardless of any decline in purchasing power. How-ever, the Robinson Huron and Robinson Superior treaties included specific language that triggered an increase in annuity payments linked to an increase in the value of the ceded land. The Huron leaders triggered the “escalator clause” or “augmentation” in 1874. An increase in the annuity based on increased productivity on ceded lands was approved by Parliament in 1878, raising the annuity for both the Huron and Superior bands from 96-cents to $4 per person. The augmentation was affirmed by the Supreme Court of Canada in 1895 as an integral element of the Robinson treaties. This was the first and last time annuities were increased based on land value increases.

At the time of the signing of the treaties, a family of five was eligible for $25, which represented a significant income for the family. However, Canada’s nominalism policy flies in the face of the idea that the annuities were intended to provide on-going livelihood support to treaty families. A family of five still receives $25, but its significance as livelihood support is so trivial as to be meaningless.

Modernizing Treaty AnnuitiesA Policy Blueprint

By Sheilla Jones

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In 2014, the chiefs of 21 Huron bands under the Robinson treaty filed a claim against Ontario and Canada for augmentation payments that should have been made since 1875. While the Robinson treaties do contain explicit language to increase annuities, the Numbered Treaties do not explicitly call for increases. The Ontario Superior Court of Justice ruled in December 2018 in the Restoule v Canada case that annuities for both the Robinson Superior and Robinson Huron bands should have been increased. However, the Court deferred a decision on evaluating what the annuity should have been or how arrears might be calculated to the second phase of the case, which got underway in October 2019.

With the exception of annuity payments, the federal government has modernized most other aspects of the treaties and extended those benefits to all Status First Nations people in Canada, irrespective of treaty status. For instance, Treaty 6 is the only historic treaty that contains the “medicine chest” and “pestilence and famine” clauses. There was no legal obligation inherent in the treaties that required the federal government to modernize those two clauses to mean the provision of supplementary health care and social assistance for all Status FN people. It was a policy decision to do so.

With the broad precedent for moderni-zation of treaty elements, the failure to modernize the single provision

intended to empower individuals and families is troubling. This is especially so given the issues of entrenched poverty, hopelessness and despair facing too many FN individuals, families, and communities.

The policy blueprint for modernizing treaties based on changes in government policy sets out eight (8) overarching actions to be taken by government to advance the objectives of:

• empowering ordinary First Nations people through modernizing treaty annuities;

• honouring the intent of the treaties regarding the purpose annuities as a means of livelihood support through sharing the prosperity of the land with every Treaty man, woman and child;

• implementing annuity modernization to include all First Nations people as a significant step in reconciliation;

• responding to the TRC Call to Action; and;

• acting to deliver an understandable, legally-based means of ensuring individual empowerment within the Indigenous collective ahead of pending court-based rulings that could force the government’s hand.

The following steps are recommended to federal politicians, who are the people entrusted with the power to institute federal government policy changes:

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1. Affirm the historic intent of annuities as a land value-based payment intended by negotiators as a means of livelihood assistance. We’re calling on politicians to:

a. Read the historic treaties (Robinson Huron, Robinson Superior, and the eleven Numbered Treaties) with the intent of its negotiators in mind.

b. Interpret the annuities in a modern context, given the SCC warning against reading the treaties as frozen in time.

c. Declare that a modernized treaty annuity honours the intent of annuities included in the historic treaties.

d. Educate the general public so that Canadians understand the significance of modernized annuities as an important step in reconciliation.

2. Determine the value of an annuity based on land values or on the prosperity generated by the lands. We’re calling on politicians to:

a. Establish a formula for calculating a modern annuity that incorporates adjustments for inflation.

b. Determine a fair and equitable value for a modern annuity that reflects sharing of the prosperity of the land.

3. Determine eligibility of FN people across Canada to receive modernized annuity. We’re calling on politicians to:

a. Consider all Status (Registered) Indians as eligible, based on IA list, with the annuity for FN children under 18 being paid to the same parents/guardians used by CRA for delivering the Canada Child Benefit.

b. Determine the resources needed to deliver a modernized annuity and to educate FN people on their eligibility.

c. Provide CRA with the authority to pay annuities to all persons deemed eligible.

4. Examine the resources currently available for Indigenous programs and services across all federal departments and agencies. We’re calling on politicians to:

a. Determine what programs and services are producing measurable and effective results to the Indigenous client base, and those that are not.

5. Provide meaningful financial management advice and education for FN individuals and families. We are calling on politicians to:

a. Provide the Financial Literacy Leader, Financial Consumer Agency of Canada, with the resources to develop and deliver financial management advice targeted to meet the needs of FN

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individuals and families, both on and off reserves, to aid in effectively managing their modernized annuity benefits.

6. Develop an education and awareness campaign to inform and educate ordinary Canadians (Indigenous and non-Indigenous) on federal Indigenous policy. We are calling on politicians to:

a. Explain the role of the federal government as a federally-run “province” delivering Indigenous programs and services, and its legal federal responsibilities to Indigenous Canadians.

b. Be transparent about the costs across government of delivering Indigenous programs and services so that Canadians (Indigenous and non-Indigenous) can make informed decisions about Indigenous policies they support (or do not support).

c. Encourage and fund education in elementary and high schools on Indigenous history and traditional governance.

7. Develop a democratically sound mechanism whereby ordinary Indigenous people can make their voices heard in influencing federal Indigenous policy. We are calling on politicians to:

a. Consult with ordinary Indigenous people to determine how the people would like their political representation to be structured.

b. Consult with ordinary Canadians about the options for Indigenous political representation will impact the political landscape across the country.

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Current policy• In 2017 the Canada’s federal government

split the Indigenous Affairs department, promising to eventually do away the Indigenous Services department in the move towards municipal-style self-governance outside the Indian Act and then end the Indian Act. The federal government is planning increasing investments in delivering Indigenous Programs and Services (IPS) across government. Spending on IPS across federal departments and agencies has more than doubled from 2004-05 to 2017-18, from $8.8-billion to about $19-billion, and funding increases continue. The challenges facing FN individuals, families and communities have shown some improvement in, for instance, health care and education outcomes. However, other outcomes, including youth suicide, children in care and incarceration, have deteriorated alarmingly. It is not clear how the continued exponential increase in program delivery spending will produce better results.

Previous policy• Eliminate all special rights, entitlements

and status for all FN people so that they have the same rights and responsibili-ties as all other Canadians. Eliminate the Indian Affairs department. This was the basis of the 1969 White Paper, which was soundly rejected by FN leaders and the public.

• Off-load responsibility for FN communi-ties to provincial and territorial governments, assign FN communities the legal status of municipal governments, with the requirement that FN leaders surrender their peoples’ rights to any further entitlements or claims. Eliminate the Indian Affairs department. This alternative formed the basis of the Mulroney-era “Buffalo Jump” policy, which has largely formed government policy since. Under Section 35 of the Constitution Act, 1982, it is no longer possible to unilaterally eliminate recognized rights and entitlements.

• Take all of the money spent on delivering IPS and divide it between all FN people and let them spend it how they want to. This alternative is typically raised when damaging stories of FN social pathologies are receiving high levels of media attention. Opinion influencers who propose this alternative are generally expressing extreme frustration with the lack of meaningful results on FN issues despite ever-increasing spending. This is not a feasible alternative as the federal

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government must continue funding its legally mandated responsibilities.

• Wait until the Supreme Court of Canada rules on a case on modernizing annuities or annuities arrears due to a failure to increase annuities over time. Act in response to the ruling by the Court. This has been the standard method Canada’s federal government has used in dealing with Indigenous issues (e.g., FN and Métis hunting rights).

Legislative history• Signing of the historic treaties providing

annuities, beginning in 1818

• Indian Act of 1876, silent on increasing annuities

• 1874 Huron chiefs trigger annuity escalator clause

• Arbitrators fail to develop a model for determining increasing annuities, opt for $4 maximum

• 1878 Parliament votes to increase Huron/Superior annuities based on land-value increases from 96-cents to $4 per person

• 1895 Supreme Court of Canada affirms principle of land value-based annuity increases

• 2009 Treaty 1 and Treaty 2 chiefs attempt to certify a class action lawsuit for the government’s failure to increase annuities since 1871

• 2014 Huron chiefs file suit against Ontario and Canada for not increasing annuities since 1874

• 2018 the legal challenge by the leaders of the Robinson Huron and Superior bands, Restoule v Canada and Ontario is heard by the Ontario Superior Court of Justice, and a ruling is delivered stating that the annuities should have been increased

• 2019 Government of Ontario files leave to appeal the court’s decision. The Government of Canada does not appeal. Phase 2 of the Restoule case begins in October 2019.

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Current Legal Considerations• Doctrine of laches is not an adequate

federal defence; FN people were banned from advancing claims or hiring legal assistance.

• Canada has engaged in a strict application of the monetary law principle known as nominalism so that annuity provisions of the Numbered Treaties remain fixed at the nominal amount of $4 or $5.

• The Supreme Court of Canada takes a dim view of “sharp dealing” in negotiating Indigenous claims, and has ruled that treaty terms should not be viewed as “frozen in time”.

• In the event that the Restoule case is appealed and reaches the SCC, it is highly likely that the court would rule in favour of an increased annuity.

• Modernizing treaty annuities would provide a potentially mitigating resolution for the Huron and Superior (Restoule) case, while also pre-empting the court cases that would be expected from bands belonging to the Numbered Treaties for similar increases for their annuities.

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203-2727 Portage Avenue, Winnipeg, Manitoba Canada R3J 0R2 Tel: 204-957-1567

Email: [email protected]

Copyright © 2020 by the Frontier Centre for Public Policy.

Policy Blueprint No. 2, January 2020

Documents

Modernizing Treaty Annuities · New York, 2008) and co-author of Bankrupting Physics: How today’s top scientists are gambling away their credibility (Palgrave Macmillan, New York,