PRIVILEGED & CONFIDENTIAL

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February 13, 2024

Robinson Huron Treaty First Nations
Chiefs and Councils
Elders and Community Members
Robinson Huron Treaty Territory

Dear Elder, Chiefs, Councillors and Community Members:

Re: Comments by Sharon Venne in a Videoed Zoom Meeting with the TEK Elders

We have been asked to respond to the comments made by Sharon Venne in a recent videoed meeting with the TEK Elders regarding the Settlement Agreement entered into by the Robinson Huron Treaty (RHT) Anishinaabek with Canada and Ontario to settle the claim for past compensation regarding the Crown’s failure to augment the Annuity as promised under the Robinson Huron Treaty of 1850.

I watched the video in its entirety, and I have to say that most of what Ms. Venne has to say about the Settlement Agreement is false misinformation. In short, it is fake news. I will review the most significant pieces of Ms. Venne’s misinformation.

1. Settlement Agreement for Past Compensation

The most blatant piece of misinformation is when Ms. Venne says that the Settlement Agreement doesn’t just cover past compensation, but that it covers treaty rights more broadly for the “past, present and future”, including future treaty payments. She even goes so far as to suggest that by accepting the money RHT Anishinaabek are giving up treaty rights.

That is not true! It is obvious that the Settlement Agreement is strictly about past compensation, as I will show you from the written terms of the Settlement Agreement, which is available for beneficiaries to review on “member-only” portals on your respective community websites:

• First of all, the agreement is called: “Settlement Agreement for Past Compensation”. You don’t need to be a lawyer or have a Ph.D to be able to read the title of the agreement – it is there in plain English.

• Second, there is also an entire Article of the Settlement Agreement called “Past Compensation”. That’s Article 3 and it provides for Canada and Ontario to pay a total of $10.0 B dollars as past compensation, basically to settle that portion of the claim for the period 1850 until the date of the Settlement Agreement, which is the date it was signed, January 18, 2024.

• Third, “past compensation” is defined in Article 1.1 (w) to mean the global amount the parties agree that Canada and Ontario shall pay to the RHT Anishinaabek reflecting a share of net Crown resource revenues up to the effective date of the Settlement Agreement, January 18, 2024.

2. Releases are Limited to Past Compensation

The key piece to Ms. Venne’s misinformation is her misreading of the release clause in Article 5, where the RHT Anishinaabek and the Lake Huron First Nations forever release and discharge Canada and Ontario from any claim that they or their “past, present and future Members” may have. But the word “claim”, as defined in Article 2.2 relates ONLY to past compensation. Of course, RHT First Nations and “past, present and future” members should NOT be able to sue again for past compensation which they are being paid for in the Settlement Agreement. For greater certainty, Article 3.3 makes it clear that the terms “claim” is strictly limited to the period 1850 until the effective date, January 18, 2024.

There is one point in Ms. Venne’s comments that I respectfully agree with. She says that if the payment of $10.0 B is compensation only for the past, then it is a good deal. I agree and the Chiefs and Trustees agreed and that is why they signed it.

3. The Settlement Agreement is Unique and Reflects Principles of Anishinaabe Law

Another significant piece of misinformation in Ms. Venne’s talk with the TEK Elders is where she says that the Settlement Agreement is a “template”. The Settlement Agreement is not a template, it is unique and is based on the Decision made by Justice Hennessy in the Restoule case. That Decision, which Ms. Venne acknowledges is a good decision, relied heavily on Anishinaabe

law and evidence of the Elders and Anishinaabe scholars. The Settlement Agreement incorporates the following key passages Hennessy’s Judgment, which is something you will never see in any other Settlement Agreement:

a) the Robinson Huron Treaty was negotiated by the Treaty parties around the Anishinaabe Council Fire at Bawaating (Sault Ste Marie) as a renewal of the ongoing relationship between the Anishinaabeg and the Crown grounded in the Covenant Chain alliance, and as a basis for continuing a mutually respectful and beneficial relationship going into the future; and

b) the Treaty reflects the parties’ common intention that their agreement was to allow both the Anishinaabeg and the Crown to realize the future opportunities and potential of the Treaty territory in a manner consistent with the Anishinaabe principles of respect, responsibility, reciprocity and renewal and the intention of the Crown to act honourably, with justice or fairness, and with liberality or benevolence.

4. Whereas Clauses and Statements of Purpose are Important

The above clauses are in Article 2, which state the Scope and Purpose of the Settlement Agreement. That leads me to the next piece of misinformation put forward by Sharon Venne. She says that whereas clauses or purpose clauses are not important and the “courts don’t even look at them”. That is totally false. I will give you an example of a very recent decision of the Supreme Court of Canada which emphasizes the importance of these kinds of clauses for interpreting the statutes and agreements. In the Child Welfare Reference [Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185, 2024 SCC 5 (40061)] that was handed down by the Supreme Court of Canada on February 9, 2024, the Court said:

A law’s preamble and purpose clauses can be considered to determine the purpose of the law in question (Greenhouse Gas References, at paras. 51 and 59). Here, s. 8 sets out the three elements of the Act’s purpose, which the Act’s preamble assists in interpreting.

First, the Act’s purpose is to “affirm the inherent right of self-government …

Second, the Act’s purpose is to set out national standards for the provision of child and family services in the Indigenous context (s. 8(b) and preamble) in order to ensure respect for the dignity of Indigenous children….

Third, the Act’s purpose is to “contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples”…

5. The Settlement Agreement Commits the Parties to Treaty Renewal and to Negotiate the Implementation of the Augmentation Promise for the Future and if they Cannot Settle RHT Anishinaabek can go Back to Court

Another Sharon Venne piece of misinformation is that RHT Anishinaabek cannot go back to court to increase the $4.00, she says “once you take the money, you’re done … the augmentation will be done”. That is not true.

As I said, the Settlement Agreement is strictly for past compensation. However, it also sets the stage for implementation of the Annuity Augmentation Promise going forward. It is important to remember that the Restoule Decision of Justice Hennessy characterized the annuity as a collective entitlement to resource revenue sharing from the Treaty territory. The individual distributive share that beneficiaries get (i.e. currently $4.00), gets paid out of the collective annuity. That is not just for the past, but also the future.

An important principle of Anishinaabe law is “renewal”. In the lead-up to the Settlement Agreement, the Chiefs, Trustees and Elders engaged in a treaty renewal ceremony with the Ministers of the Crown. This was foundational for the eventual Agreement. Treaty renewal is baked into the Settlement Agreement, and by definition renewal is about going forward.

There is a commitment in Article 2.1 of the Settlement Agreement for the parties to negotiate the future implementation, which is one of the stated Purposes of the parties:

to affirm the commitment of Canada and Ontario to work together with the Robinson Huron Treaty Anishnaabek to develop a framework for implementing the Augmentation Promise for the period after the Effective Date, in the spirit of Treaty renewal.

Sharon Venne says that we cannot go back to court. It is obvious that she has not read the Settlement Agreement very carefully because Article 5.3, specifically says:

… nothing in this Article or Agreement shall prevent or restrict the Robinson Huron Treaty Anishinaabek or the Lake Huron First Nations from pursuing any legal remedies against Canada or Ontario for non-performance of their obligations under this Settlement Agreement or for any obligations related to the future implementation of the Augmentation Promise after the Effective Date.

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6. Misinformation About the Trust and the Settlement Approval Process

It is obvious that Sharon Venne has not carefully read the Settlement Agreement. It also seems that she has not carefully read the Restoule case; in fact, judging from her comments, she did not know that the Restoule case was already heard by the Ontario Court of Appeal, and that we won that appeal.

Sharon Venne also gives uninformed advice about the Trust, which makes it obvious that she has no knowledge of the Robinson Huron Treaty Litigation Trust Fund, which is the Trust established to by the RHT First Nations to pursue the litigation and negotiation of the annuity claim. In fact, she admits she has not read the Robinson Huron Treaty Litigation Fund Trust Indenture; therefore, she has no ability to understand the approval process set out in the Trust Indenture. Yet, she gives advice on the Trust and the approval process required for the Settlement Agreement, saying that referendums are required to approve the Settlement Agreement.

Referendums are only required in settlements where First Nations are surrendering land. This Settlement Agreement does not surrender land or any other right. It simply provides compensation for the Crowns’ failure to augment the annuity in the past and therefore does not require a referendum.

Conclusion

I could go on. There is a lot more misinformation in Sharon Venne’s talk to the TEK Elders. Suffice to say that the video does not provide any assistance in understanding the Settlement Agreement. Rather, it distorts the reality and truth about the Settlement Agreement. It sows mistrust and undermines the two decades of work the Legal Team undertook with the RHT Chiefs, Trustees and Elders aimed at seeking justice for the Crowns’ failure to fulfill the Augmentation Promise.

I have given you my legal opinion, above, as an Anishinaabe lawyer that worked on the Restoule case for the last almost twenty years. I am authorized to practice law and to give my legal opinion, and you can rely on my opinion.

Sharon Venne is NOT licenced to practice law in Ontario, or for that matter, in any other jurisdiction in Canada to my knowledge. She is NOT licenced to give a legal opinion on the

Settlement Agreement. She may have received a legal education, but she is not licensed to practice law. It is an offence under Ontario’s Law Society Act for a non-licensed individual to provide legal advice or a legal opinion regarding the Settlement Agreement.

I urge you to take the time to read the Settlement Agreement and if you have questions please do not hesitate to contact the members of the RHTLF and Legal Team that are engaged in community engagements. You can contact your Chief and Council about the schedule for community engagements which include an update from the RHTLF and legal team. Please feel free to ask questions then. If you have already completed your engagements, you can rely on this opinion and other accurate information being updated regularly on your community protected portals.

Miigwetch,

NAHWEGAHBOW, CORBIERE
David C. Nahwegahbow
IPC, LSM, LL.B, LL.D (Honoris Causa)

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