In each “Behind the Scenes” segment, Village Media's Scott Sexsmith sits down with one of our local journalists to talk about the story behind the story.
These interviews are designed to help you better understand how our community-based reporters gather the information that lands in your local news feed. You can find more Behind the Scenes from reporter across Ontario here.
Today's spotlight is on Sudbury.com's Jenny Lamothe, whose story 'Concern, confusion among members as $10B treaty settlement looms' was published on March 12.
Here is the original story if you need to catch up:
In just a few weeks, $10 billion will land in Northern Ontario, but how it will be disbursed among the thousands of Robinson Huron Treaty members is causing confusion, concern and even anger among some members of the 21 signatory First Nation communities.
As the settlement amount from the Robinson Huron Treaty annuities claim is divided amongst each First Nation, members are being asked to vote on how much will be given to each individual person, and how much will be kept by the band. That, and many nations are discussing a sliding-scale individual payment, with more going to elders — who lost more over the course of their lives — and less to young people.
There is also concern about the perceived lack of benefits to those living off-reserve, which accounts for upwards of 80 per cent of the population of some nations.
As the payments come closer to fruition, members of five of the 21 nations have come to Sudbury.com with complaints that their choices are limited and lack transparency. They said they feel like their concerns, ranging from disagreement with the allotment of the $10 billion settlement to a deep mistrust with their respective chiefs and councillors, are dismissed or ignored.
As well, the documents show the payments are not uniform for all signatory members. Some larger First Nations will receive smaller amounts of around $5,000 per person. Others, like Thessalon First Nation, could see payments as large as $100,000, sources tell Sudbury.com.
The members Sudbury.com spoke to said they are being asked to register an important vote on the percentages very soon, without fair questions, or a complete understanding of what they are being asked to do.
The complaints could be seen as similar to those uncovered by the Office of the Mizhinawe, hired to do the first round of consultations. The office was closed almost five months ago.
In order to better understand these issues, Sudbury.com went in search of the original documents that laid out the claim, which until now, have not been made public.
Several of the concerned band members who reached out to and spoke with Sudbury.com shared the documents with us. Sudbury.com is not naming any of the people who trusted us with the material, but we have confirmed their identities as band members.
Laid out by the RHTLF in 2010, and heretofore protected by privilege, the legal documents —Trust Indenture and CDA— spell out the early years of the claim, and the plan for any proceeds from it.
The RHTLF is still dealing with percentages until the settlement is finalized and can’t speak to exact amounts yet. But the common refrain among each person Sudbury.com spoke with was a wish for more control, more information, and less secrecy.
The answers begin by following the path that led to the 2023 settlement, which began in 2010.
What is the Trust Indenture?
In the early to mid 2000s, and certainly before, the Lake Huron First Nations (a.k.a. the 21 signatories of the treaty) believed they were entitled to higher annuity payments under the Robinson Huron Treaty of 1850.
They established a trust in order to pursue that claim in court, with each nation becoming Settlors of the Trust and then naming trustees to represent them. The members of each nation became beneficiaries under the contract.
The claim involved a clause in the treaty of 1850, in which the Crown promised to make an annual payment of £600 ($2,400) to members of the treaty First Nations. In 1850, that worked out to approximately $1.60 per person.
However, the Crown provided an additional incentive for the Anishnawbek communities to sign the treaty, called an “augmentation clause.” This clause meant if further wealth was generated in the territory in future years, the Crown was obligated to increase the annuity.
The one and only time the annuity was increased was in 1874, when the government augmented it to $4 per person. It remains $4 per person today, despite the billions in dollars of resource wealth extracted from signatory territories over the past more than 100 years.
The trust allowed the First Nations to submit a claim against the Crown for “unfulfilled obligations.”
The advocating body was created under a trust, signed Aug. 23, 2010. The Trust is between the First Nation ‘Settlors of the trust” and their named trustees, of which there are 22. .
From there, the trust required the creation of the Litigation Management Committee (LMC), made up of two trustees per sub-region: Manitoulin Island, North Shore and the Highway 69 corridor sub-regions.
The LMC guides the legal team (Nahwegahbow Corbiere) and the other trustees. The members of the LMC are: Mike Restoule, Chief Patsy Corbiere (Aundeck Omni Kaning), Duke Peltier (Wiikwemikoong), Peter Recollet (Wahnapitae), Dean Sayers (Batchewana) and Ogimaa Angus Toulouse (Sagamok). Both Peltier and Sayers are former chiefs voted out within the last two years.
The LMC was to create a business plan for the first year and first five years of the claim as set out in the trust, and file annual reports.
The trust was named the “Robinson Huron Treaty Litigation Fund” (RHTLF).
It was the RHTLF that filed the annuities statement of claim in 2012. Stage one of the trial began with opening statements Sept. 25, 2017.
In 2018, Justice Patricia Hennessy ruled that by not increasing annuities payments as the mining and forestry resource sectors grew, the Crown and province had not lived up to the terms of the treaty. She ruled that the Crown had a mandatory and reviewable constitutional obligation to increase the annuity to reflect the economic value the Crown receives from the treaty territory.
After several appeals by the provincial government, a $10-billion settlement was announced in 2023, covering what should have been given as annuities from 1874 to 2023. The future payments are yet to be determined.
From this point, there will be further action regarding the amounts of future annual payments under the treaty, but for now, the $4 payment remains the same. This was also a point of confusion for many who spoke with Sudbury.com, and on social media.
The trust indenture also sets out how funds generated by the claim would be distributed to the First Nation members, called the Collective Disbursement Agreement (CDA).
On multiple occasions the trust indenture notes that the entitlement to annuities under the Robinson Huron Treaty are treaty rights, and as such, “they are not individual rights, they are collective rights.”
This collective vs. individual division of the funds is the focus of the disbursement agreement, and also, the issues that many have with RHTLF’s handling of the settlement payout.
The Trust’s Collective Disbursement Agreement
The trust indenture sets how any potential sums received would be divided, and makes clear that the agreement should be governed by “our own Anishinabek customs, laws and history” as well as the spirit and intent of the Treaty, “and not by the Indian Act or Indian Affairs policies, treaty pay-lists or membership lists.”
There are three payments set out in the Compensation Disbursement Agreement (CDA).
The first “priority payment” is allocated to legal fees and other costs, as well as a 25-per-cent return on the original investments by each nation when the trust was created.
The CDA sets out the next two priority payments, each 50 per cent of the remaining proceeds.
The second priority payment will see 39 per cent of the claim proceeds distributed equally among the First Nations that participated in the trust, with one per cent going to living individual annuitants who are not members of a Lake Huron First Nation (such as those who faced enfranchisement).
From there, 10 per cent is to be set aside “for collective purposes of advancing rights and interests of the First Nations who participated in the trust.”
The third priority payment is divided: 25 per cent for “First Nations who participated in the trust proportionate to respective population (subject to verification process)”; and 25 per cent of proceeds going to First Nations “who participated in the trust proportionate to the number of annuitants within respective populations.“
When the settlement was announced on June 17, 2023, the RHTLF created the Office of the Mizhinawe and hired Justice Harry S. Laforme to lead it. Created according to Anishnaabe law, the ‘Mizhinawe’ (Miij-in-a-way) was a traditional role in place when the treaty was signed in 1850. The meaning is similar to “near chief.”
In the terms of reference set out for the role of Mizhinawe, Laforme was to “examine issues and engage in consultations” with the RHT members and provide “advice on the use and distribution of the compensation to be paid by the Crown,” subject to the terms of the CDA: the priority payments.
Laforme was to work at the direction of the LMC, but act independently of it, and to ensure “in particular that Anishnaabe laws and protocols are respected and adhered to.”
After an initial round of consultations with the First Nation annuitants, Laforme produced an interim report. After it was received by the RHTLF, Laforme was either fired, or resigned from the position; it is still unclear.
Sudbury.com was able to obtain a copy of the privileged report from the Office of the Mizhinawe, and you can find the full details of it here.
In addition to asking for more notice of the meeting dates and more time to digest the information given before offering input, the interim report states, “It is also clear that more engagement and communication is necessary to clarify issues for community members.”
There were numerous requests for more in-person gatherings, said the report, as well as outreach to youth and elders. Many participants requested copies of the information given to them, and questioned why more details weren’t available.
There was also a quote about the faith in current leadership. “In some communities, some were openly distrustful of the Chief and council or questioned the role of the LMC.”
The report states some found the legal presentation on the settlement agreement and existing CDA “difficult or impossible to understand.”
In almost every community, there were questions about the specific costs of legal and other professional services incurred by the RHTLF and a “clear expectation that members of First Nations are entitled to this information.”
“It appears that many community members do not understand the rationale and mechanics of the distribution formula,” reads the report. “Accordingly, continued efforts to explain the distribution formula by the RHTLF and LMC are necessary in future sessions.”
There are also questions about who is a treaty member.
“Members in just about every community also have expressed concern about the arbitrariness of aspects of imposed federal law respecting Indian status and how that has been used to determine treaty beneficiary status for the purposes of paying the current Crown controlled $4 annuity.”
Sudbury.com sources noted that since the closure of the Office of the Mizhinawe, the individual First Nations have been conducting information sessions, but there appear to be inconsistencies in the number of meetings being held, whether they are in-person, virtual or hybrid, and the amount of information shared by each. This is confirmed by event listings on individual First Nation’s social media accounts.
Though we have been unable to verify, two RHT members have shared with Sudbury.com that they have been limited from accessing these meetings.
But from the information shared and interviews conducted by Sudbury.com with RHT members, the complaints appear to be the same as they were in Laforme’s interim report, and each community's opportunity to discuss the matter is limited by the legal privilege surrounding the settlement.
Some say the sliding age scale for payments is depriving the youth of a chance to invest in their future. One suggested it was a way to prevent overspending by youth, especially those who are addicted to substances.
A primary issue raised by those who spoke to Sudbury.com is the investment into First Nations where a majority of their population lives off-reserve.
One RHT member told Sudbury.com that in their recent chief and council elections, “a lot of off-reserve members did not receive voting ballots in the mail, despite updating their addresses.” They said this has caused the First Nation to distrust their leadership. At least three RHT First Nations had sweeping changes to their councils after recent elections.
There are also a few First Nations with ongoing land claims. Two of the sources Sudbury.com spoke with said they do not wish to contribute so much to the community chest, and would prefer larger individual payouts as the money from these claims could provide future investment money.
An RHT member told Sudbury.com they feel their leadership already limits spending, citing favoritism, and feels this trend will continue with any settlement monies received.
The settlement disbursement looms
When more than 60 people came together Feb. 26 with the Nipissing Grandmothers to call attention to their pleas for more information, Nipissing First Nation Chief Scott McLeod noted to Sudbury.com’s sister publication, Baytoday, that “since members have directly received the $4 annual payment for well over a century, they feel that the compensation is 100 per cent theirs, and somehow we are taking money from them,” for the proposed community fund. “When in fact,” he continued, “if they understood the treaty, how it was written, what our legal arguments were, and how that decision was upheld in court, they would understand that the treaty itself was not merely an individual payment.”
“Rather,” McLeod explained, “it was a communal payment to a Nation that first started in 1850 as a lump sum to the Chiefs.” This payment “took care of the communal needs at that time,” he continued, “the rest was dispersed to the individual, which became the $4” payment.
This was how the original payment structure went, McLeod said. However, “shortly after” the Crown implemented the treaty, the government “decided this was too costly and they were going to administer payments instead of giving it to the Chiefs” and allowing them to administer the funds.
Regardless of this history, the members Sudbury.com spoke with say they feel they do not have enough information to make an informed choice, and they are concerned about the power over the money that Chief and Council have. They are deeply concerned for the future of their communities, and the lack of agency they feel throughout the process could mean a deep rift, and one that $10 billion may not fix.
Jenny Lamothe covers the diverse communities of Sudbury, especially the vulnerable or marginalized, including the Black, Indigenous, newcomer and Francophone communities, as well as 2SLGBTQ+ and the downtown core.
