Precedent-setting Treaty 1 case wraps up

A precedent-setting trial that wrapped up in Winnipeg’s Court of King’s Bench at the end of February has called for a court to determine, for the first time in 150 years, whether the value of Treaty 1 annuities is subject to an increase after being frozen at $5 per person since 1875.

This contemporary case arises out of the historic 1869 sale of the vast territory of Rupert’s Land by the Hudson’s Bay Company to the Dominion of Canada. However, the 1763 British Royal Proclamation required that Canada could acquire access to First Nations lands only through treaties.

Treaty 1, signed in 1871, was the first of 11 numbered treaties, mandating Canada to provide, among other things, an annual cash payment (annuity) to each individual member of the First Nations signing the treaty.

The amount of the annuity in 1871 was set at the value of goods at the “current cost price in Montreal,” initially at $3 but raised in 1875 to $5 per person per year. In this case, initiated by Treaty 1’s Zongidaya Nelson on behalf of himself, Roseau River First Nation and the six other Treaty 1 bands, we await a legal decision on the interpretation of the word “current.”

Federal Department of Justice lawyers argue that the word means “current in 1871” and thus locked into that value forever. Lawyers for Nelson argue that “current” means the price that would be current in any given year.

On that basis, the Nelson case calculated the current value of the $5 annuity would today be $2,794. This is based on understanding the role of the annuity as a livelihood support intended to augment the incomes for First Nations people whose traditional livelihoods were being displaced by settlement. It will be up to the judge to rule on which interpretation of “current” holds sway.

However, what makes the case of Nelson vs. Canada remarkable is that it happened at all.

Modernizing treaty annuities is not a new idea. Our grassroots team of Indigenous and non-Indigenous leaders in the Modernized Annuity Working Group has spent years examining the intent of the annuity and how that intent would translate into contemporary political and economic reality.

This is, however, the first time that one of the many annuity claims and class-action lawsuits by any of the numbered treaties has made it to a full hearing by a judge in a courtroom.

The Crown has a long track record of suppressing First Nation’s legal actions against it. Most notably, First Nations soldiers returned from serving in the Great War developed an understanding of how the Crown was failing to live up to its treaty obligations.

In 1927, the government put an abrupt stop to their successful use of the courts to challenge Indian policy by unilaterally amending the Indian Act to criminalize raising money to hire lawyers to act on behalf of First Nations. The amendment shut them out of the legal system until 1951 when the criminalization provision was finally dropped.

Thereafter, First Nations individuals and bands took legal action against the federal government on Indian policy, with many cases ending up before the Supreme Court of Canada.

The annuities cases were different. Annuities are paid directly to Treaty people, which makes it an individual right. However, the federal government later added the requirement that annuity recipients must also be members of a Treaty band.

This allowed federal lawyers to argue that a case brought collectively by a band (or bands) was not allowed as annuities were an individual right. At the same time, class-action lawsuits based on annuities being an individual right were not certified because annuities were conveniently ruled to be a collective right.

As recently as June 2025, a judge ruled against certifying a class action on annuities by Treaty 4, recommending instead what is called a representative order. It is much like a class action but without the standard provision allowing people to opt out of the claim. That is the route the Nelson case took, albeit with some push-back from two of the Treaty 1 bands who wanted to take a different approach.

This is where the “current” state of legal challenges on modernizing treaty annuities rests in 2026. The outcome will affect all First Nations signatories to the Numbered Treaties covering the former Rupert’s Land territories in northern Quebec, northwestern Ontario, Manitoba, Saskatchewan, and parts of Alberta, Nunavut and the Northwest Territories. It hinges on a judge’s determination of the meaning of “current” in 1871.

Sheilla Jones’s doctoral research examines challenges to relations between settlers and First Nations. Bill Shead is a Treaty 1 member of Peguis First Nation and director of Indspire. Both are members of the Modernized Annuity Working Group team.