Photo of Sudbury Ontario taken by Christina Gray (2023)
On July 26, 2024, the Supreme Court of Canada (“the Court“) released a unanimous decision on the interpretation of Robinson-Superior Treaty and Robinson-Huron Treaty (“Robinson Treaties”) in Ontario (Attorney General) v. Restoule, 2024 SCC 27. This matter was heard on November 7-8, 2023, but is one that engages a matter of injustice between the Anishinaabe and Crown treaty partners that spans 174 years.
At the core of this case is the sacred promise under the Robinson Treaties made by the Crown to share the wealth in the land if it proved profitable.[1] With respect to upholding the obligations in this treaty, the Court held that for well over a century, the Crown has shown itself to be “patently unreliable” and an “untrustworthy treaty partner”.[2] Furthermore, the Court held that the Crown has lost its “moral authority to simply say “trust us””.[3]
To help provide some context to this very complex treaty case, in this blog post, we provide the reader with key highlights regarding the historic context of the Robinson Treaties, issues that were before the Court, the decision itself, and treaty interpretation aspects important to historic treaties generally.
Historic Context Of The Robinson Treaties
The Robinson Treaties were negotiated and signed in 1850. Negotiations were held in both the Anishinaabe and English language involving both treaty partners.[4] The parties engaged in negotiations at a council fire at Bawaating or Sault Ste. Marie.[5] The Robinson Treaties were signed that same year in 1850 between the Anishinaabe of the Lake Superior and Lake Huron regions in what is now Ontario.
The Robinson-Superior Treaty and Robinson-Huron Treaty are distinct but similar in wording. The Robinson Treaties contain several clauses of importance, such as the surrender clause, consideration clause, and augmentation clause. The consideration clause provided an initial lump-sum payment of £2,000 under each of the Robinson Treaties, with a perpetual annuity (e.g. annual payments) of £600 under the Robinson-Huron Treaty and £500 under the Robinson-Superior Treaty.[6] The Crown promised to pay the Anishinaabe perpetual treaty annuity in exchange for an entire territory.[7] The Anishinaabe, in general, have a perspective of this treaty that questions the transactional nature of the Treaty, which was cited with approval by the Court.[8]
The Robinson Treaties contain a unique provision, the augmentation clause – in which the annuity could be increased from time to time. When the Robinson Treaties were signed, the Crown considered the lands “vast but sterile territory”.[9] The treaty provided that if this were to change, and the land did generate enough revenue to increase the annuity without causing the government a loss, then it would be augmented accordingly. Specifically, the Robinson-Huron Treaty reads:
If the lands that were ceded generated enough revenue in the future to “enable the Government of this Province, without incurring loss, to increase the annuity…then and in that case the same shall be augmented from time to time, provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order;
Following the signing of the Treaties, the Government of Canada increased the annuity to $4 per person in 1875. The increase in the annuity was as a result of several Anishinaabe chiefs who petitioned the government.[10] This Robinson Treaties was historically subject to court interpretation at the Judicial Committee of the Privy Council (In re Indian Claims) to pay arrears to treaty beneficiaries in 1903.
In more recent history, in 2001 the Red Rock First Nation and Whitesand First Nation (Robinson-Superior Treaty plaintiffs) launched a civil claim in Ontario. In 2014, the Robinson-Huron Treaty plaintiffs filed their own claim. The two claims were heard together before Justice Hennessy of the Ontario Superior Court of Justice. The Robinson-Superior and Robinson-Huron plaintiffs argued that the failure to increase the annuity was a breach of the Crown’s fiduciary duty as well as a breach of the treaty. In addition to a declaration that the Crown had failed in its duties, the plaintiffs sought compensation to make up for what they should have received if the annuity had been augmented.
Key Issues Before The Court
Due to the complexity of this case, the Court divided the matter into three stages. Stage One was about treaty interpretation, and the application of fiduciary duty and the honour of the Crown to the paying of annuities – the trial court found Ontario liable. Stage Two concerned limitation periods, and Crown immunity from liability – the trial court concluded neither of these options allowed Ontario to avoid liability. Stage Three addresses compensation and other liability and allocating liability between Ontario and Canada. The appeal of Stage One and Two were before the Court in this decision.
Stage three was heard in Sudbury and Thunder Bay throughout 2023. The Robinson-Superior Treaty beneficiaries, contingent beneficiaries, and other added party plaintiffs brought arguments before the trial court for Stage Three. The Robinson-Huron reached a settlement for the past breaches of the Robinson-Huron Treaty and did not participate in the Stage Three trial.[11] The Stage Three decision was ‘stayed’ by the Supreme Court of Canada pending this decision.
The Attorney General of Ontario filed the appeal to the Supreme Court of Canada. Ontario argued that the text of the treaty should be interpreted as providing a single annuity, meant to be distributed to individual members of the Treaty Nations, with a maximum value of $4 (equivalent to £1). Ontario argued that this interpretation was the only fair reading of the text of the treaty, and that evidence of the context cannot override the text of the agreement.
Ontario also argued that the court was not entitled to determine how the annuity ought to have been augmented, because this is a matter for Crown discretion. On this basis, Ontario argued that the only remedy available to the court in this case is a declaration that sets out the considerations that inform the exercise of Her Majesty’s graciousness.
In contrast, Robinson Superior Plaintiffs and Huron Plaintiffs argued that the Crown’s failure to augment the treaty as required was a matter that required a remedy from the court. It was further argued that the Robinson Treaty should be interpreted as providing two annuities – one directly to individuals and one that was to be provided on a nation to nation basis. They further argued that the Robinson Treaty must be interpreted according to the Anishnaabe perspective reflective in the principles of respect, reciprocity, mutual responsibility and renewal.[12]
The Court’s Decision
Fiduciary Duty vs. the honour of the Crown
During oral argument, there was debate over which doctrine of Aboriginal law would be most appropriate to resolve the case: fiduciary duty or the honour of the Crown. The Court concluded that fiduciary duty was not triggered here,[13] and so decided the case on the basis of the honour of the Crown, and specifically the duty to diligently implement Treaties.[14]
Justice Jamal affirmed the Court’s previous jurisprudence that the duty of diligent implementation speaks to how Crown obligations must be fulfilled, rather than specifying a particular result in a given case. The central question is: what is required to maintain the honour of the Crown and to effect reconciliation?
Here, the duty to diligently implement the Robinson Treaties required that:
The Crown must exercise its discretion, including its discretion as to how often it turns its mind to increasing the annuity, diligently, honourably, liberally, and justly, while engaging in an ongoing relationship with the Anishinaabe based on the values of respect, responsibility, reciprocity and renewal.[15]
The Supreme Court of Canada found that Ontario had breached its duty to diligently implement the augmentation clause. Justice Jamal put it this way:
For well over a century, the Crown has shown itself to be a patently unreliable and untrustworthy treaty partner in relation to the augmentation promise. It has lost the moral authority to simply say “trust us”.[16]
In part, the Court relied on the fact that Ontario and Canada acknowledged before their Court that they had breached this duty.[17]
With respect to fiduciary duty, this Court concluded that there was no ad hoc fiduciary duty at issue. The Crown did not undertake to protect the Huron and Superior plaintiffs’ interests and forsake all others. Further, there was no sui generis fiduciary duty because there was no specific identifiable interest that is independent of the Crown’s executive function.
The Court’s Approach To Treaty Interpretation
Justice Jamal explained that courts should “approach treaty interpretation in two steps: at the first step, the court focuses on the words of the treaty clause at issue and identifies the range of possible interpretations, and at the second step, the court considers those interpretations against the treaty’s historical and cultural backdrop.”
The Court held that the standard of review for the interpretation of Treaties, as constitutional documents, is correctness, but the factual findings of the trial judge regarding the context of treaty formation are subject to a standard of palpable and overriding error.
The honour of the Crown is always at stake in treaty interpretation. The Court agreed that the Anishinaabe perspective and particularly – respect, responsibility, reciprocity and renewal – that guide the treaty interpretation process. In choosing which interpretation is best aligned with the treaty partners’ understanding at the time the treaty was made, the court held that an interpretation of the Robinson Treaties as sharing future revenue:
It is also consistent with the Anishinaabe’s perspectives reflected in the principles of respect, responsibility, reciprocity, and renewal. It demonstrates respect by acknowledging both the Anishinaabe’s jurisdiction over the land and their authority to conclude an agreement with the newcomers. It shows reciprocity by making concrete the Anishinaabe’s expectation that a “gift” would attract a reciprocal “gift” of commensurate value (C.A. reasons, at para. 296). It embodies responsibility in affirming the Anishinaabe’s ongoing duties to their people, at the time the Robinson Treaties were signed and in perpetuity. And it allows for renewal since the Robinson Treaties would adjust as economic circumstances changed (para. 306, citing Stage One reasons, at paras. 469-70).
However, the Court found that if the Crown can increase the annuities without incurring a loss, then the Crown must exercise its discretion and decide whether to increase the annuities, including by how much.[18] Importantly, the Crown must also exercise its discretion in how often how often it turns its mind to increasing the annuity, diligently, honourably, liberally, and justly, while engaging in an ongoing relationship with the Anishinaabe based on the values of respect, responsibility, reciprocity and renewal.[19]
Interpretation of The Robinson Treaties’ Augmentation Clause
The Court reviewed four possible interpretations of the Robinson Treaties and concluded that the parties did not intend there to be two separate annuities. Rather, the court concluded that the parties intended to provide a fixed annuity on a nation-to-nation basis, with a soft cap but with discretion for the Crown to increase the annuity if warranted by economic conditions. Essentially, “If the economic conditions are such that the Crown can increase the annuity beyond $4 per person without incurring a loss, the Crown must exercise its discretion and determine whether to increase the annuities and, if so, by how much.”[20]
The Appropriate Remedy For Breach Of Treaty
Perhaps the most important aspects of this decision, in terms of its implications for other cases, is the finding that the full range of remedies are available for this type of breach – both declaratory and coercive.[21] The Supreme Court described the remedy owed by the Crown for the breach of the Robinson Treaties as “pivotal”.[22]
Having found that the Crown had breached its duty to diligently implement the Robinson Treaties, the Court held that the Robinson Superior and Huron plaintiffs are entitled to a declaration clarifying the rights and obligations of the parties, but that a declaration alone would not go far enough. The Court held:
For almost a century and a half, the Anishinaabe have been left with an empty shell of a treaty promise. In this context, a declaration setting out the rights and obligations of the treaty parties, including the Crown’s obligations under the Augmentation Clause, is undoubtedly a helpful remedy. But given the longstanding and egregious nature of the Crown’s breach, a declaration alone will not help repair the treaty relationship or restore the Crown’s honour. As I have indicated, the Crown must exercise its discretion and increase the annuities with respect to the past.
…
In these circumstances, a simple declaration would not adequately repair the treaty relationship or restore the honour of the Crown, sufficiently vindicate the treaty rights, or meaningfully advance reconciliation. A mere declaration would risk forcing the Anishinaabe to continue to rely on a historically dishonourable treaty partner. This would be deeply unsatisfactory and would risk leaving the Anishinaabe with an empty shell of a promise once again.
The Court’s affirmation of the role for declaratory relief here follows on the heels of the Court’s decision in Shot Both Sides v. Canada, 2024 SCC 12. In that case, this Court made declarations about the Crown’s treaty breach, affirming the practical utility of declaratory relief. The Court explained that declarations provide needed clarity on the legal dispute between the parties, which can have a role in promoting reconciliation between the Crown and Indigenous peoples. The Court in that case held that courts have “an extremely wide jurisdiction” to provide declaratory relief.
Here, in going beyond a declaration, the Court was mindful of stepping too far into the role of the Crown in the discretionary decision of when and how to augment the annuity. The Crown’s treaty promise to exercise its discretion requires the Crown to “to deal liberally and justly with all Her subjects”, meaning all Canadians. To balance this concern with the concern expressed above, the Court directed that the parties engage in a short, time-bound negotiation towards compensation, to be informed by a list of considerations specifically enumerated by the court. The court set this limit at six months from the date of the decision. To facilitate this process, the Court also extended the ‘stay’ of the Stage Three proceedings for a further six months.
If the parties are unable to reach a resolution during the window of time provided, or if that resolution does not accord with the honour of the Crown, then a monetary remedy would be appropriate, in the Court’s view.
Conclusion
While the Court’s decision on remedy is particularly important, there are many lessons to be drawn from the case especially as it relates to Crown discretion regarding its treaty obligations with its Anishinaabe treaty partners. While the Court has confirmed that the Crown has discretion to exercise its treaty obligations as to potential increases above $4 per person without incurring a loss. But how the Crown will uphold the honour of the Crown and advance reconciliation while also restoring the treaty relationship will remain a pressing issue into the future.
[1] Ontario (Attorney General) v. Restoule, 2024 SCC 27 at paras 197, 271, and 309 [Restoule].
[2] Restoule at para 262.
[3] Restoule at para 262.
[4] Restoule at para 34.
[5] Restoule at para 4.
[6] Restoule at para 151.
[7] Restoule at para 43.
[8] Restoule at para 300.
[9] Restoule at para 29; originally citing Stage One reasons, at para 178.
[10] Restoule at para 45.
[11] Restoule at para 11.
[12] Ibid at para 179.
[13] Ibid at para 247.
[14] Ibid at para 256.
[15] Ibid at para 197.
[16] Ibid at para 262.
[17] Ibid at para 263.
[18] Ibid at para 10.
[19] Ibid at para 197.
[20] Ibid at para 196.
[21] Ibid at para 273.
[22] Ibid at para 265.