Manitoba First Nations man sues federal government for $11B over 'unfulfilled' treaty annuity payments

A First Nations man is seeking $11 billion from the Canadian government on behalf of Treaty 1 status members he argues are owed "full and fair" annual payments promised by the Crown as part of treaties signed in the early days of Confederation.

Zongidaya Nelson of Roseau River Anishinaabe First Nation said compensation in the form of adequate annuity payments is more than 150 years in the making.

"It's a long time coming," Nelson said at a news conference Wednesday in Roseau, about 80 kilometres south of Winnipeg. "We're tired, tired of waiting."

Nelson is listed as lead plaintiff in a lawsuit filed in Manitoba Court of King's Bench against the attorney general of Canada that seeks damages and interest in the range of $11 billion for seven First Nations.

The lawsuit was originally filed as a class action in 2019. It was amended and refiled last fall with Nelson as lead plaintiff.

The attorney general of Canada consented to Nelson as lead plaintiff on the condition the lawsuit be filed as a representative claim, not a class action, allowing the case to proceed without the need to get class-action certified, his lawyers said.

Nelson's lawsuit relates to annuity payments that were part of a deal struck in 1871 between the Crown and Treaty 1 nations. 

The original deal gave the Crown the ability to provide either an assortment of goods or an annual payment of $3 per Treaty 1 member from Roseau, Brokenhead, Sandy Bay, Peguis, Fort Alexander, Long Plain and Swan Lake First Nations, according to the lawsuit. The amount was upped to $5, or goods of an equivalent amount, through amendments in 1875. 

It hasn't budged since then. Nelson received $5 per year up until 2015.

The statement of claim says the Crown breached its treaty obligations by not enhancing or indexing annuity payments to inflation over time, and as a result, Treaty 1 members are owed historical damages and interest due to loss of inheritance, opportunities to invest and more.

The lawsuit also accuses the Crown of failing to properly consult affected members on the amount of the annuity and "unlawfully utilizing the eroding power of inflation" to its advantage.

"The rights which flow from the treaty were not meant to be treated in static, or rigid, fashion but were rather to be treated in dynamic and evolving fashion," the statement of claim says.

"The Crown privileged, and continues to privilege, its own interest through the continued erosion of the value of the sums which were paid to the plaintiffs, by reason of inflation."

We were left without the ability to access finances, goods and tools which would foster our equal participation in a foreign economy which the Crown forced upon us.- Zongidaya Nelson

The lawsuit also argues the Crown deprived Treaty 1 members of legal rights.

Section 141 of the Indian Act included a provision that made it a criminal offence for status Indians to retain counsel. The statement of claim points to that as a sign the Crown intended to prevent First Nations people from enforcing their treaty rights.

Nelson said modernizing the annuity payment structure is tied to reconciliation efforts between the Crown and First Nations.

"The promises which were made to our people at the time of treaty were, and remain, unfulfilled," Nelson said in a statement. 

"We were left without the ability to access finances, goods and tools which would foster our equal participation in a foreign economy which the Crown forced upon us."

The federal government is currently reviewing the amended statement of claim to decide on further actions, a spokesperson for Crown-Indigenous Relations and Northern Affairs Canada said in a statement to CBC on Wednesday.

Canada recognizes "more needs to be done with regard to renewing the treaty relationship," the spokesperson said, adding the government will continue to work in collaboration with the First Nations involved to "help strengthen our ongoing Treaty relationship and advance reconciliation."

The spokesperson could not comment further due to the ongoing litigation.

The lawsuit invokes elements of the Truth and Reconciliation Commission calls to action and the United Nations Declaration on the Rights of Indigenous Peoples. The 2007 UN declaration entitles Indigenous people to seek restitution for treaty violations and lands and resources that were taken from them. 

Canada endorsed the declaration in 2010 and cemented support for its principles in 2021 with the passing of Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act.

The lawsuit also references the Robinson Treaties of 1850, which are also central to a trial currently being heard in Ontario's Superior Court concerning annuity payments for treaty members from areas of northern Ontario.