The Restoule decision written by Justice Hennessy of the Ontario Superior Court of Justice provides an overview of the law of treaty interpretation while incrementally moving the law forward. The decision emphasizes that the key principle driving treaty interpretation is choosing “from among the various possible interpretations of the common intention the one which best reconciles the parties’ interests.”
The Claim
The claim of the plaintiffs, the Huron and Superior Anishinaabe, was for an increase in the annuity payments paid by the Crown based on a promise contained in their respective Treaties. The Treaties promised increased payments if and when the territory the plaintiffs had ceded produced an amount that enabled “the Government of this Province, without incurring loss, to increase the annuity hereby secured to them.”
The Crown took the position that the Augmentation Clause explicitly precluded payments above “the sum of one pound” (or $4) which the Anishinaabe had received since the last increase in 1875, and that any increase beyond $4 cannot be compelled by the plaintiffs or the court.
Background
The Restoule decision is situated in the context of two historic treaties signed in 1850, the Robinson Huron Treaty and the Robinson Superior Treaty (the “Robinson Treaties” or “Treaties”).
The Robinson Treaties included an immediate payment in compensation for the surrendered territory of the Anishinaabe of £4,000 to the “Chiefs and their Tribes” followed by annuity payments totaling £600 for the Huron Anishinaabe and £500 for the Superior Anishinaabe, which amounted to approximately $1.70 and $1.60 per capita respectively based on the population at the time. In addition to the agreed-upon annuity payment, the Treaties each included the following unique clause, different only in respect of the amount of the annuity payment:
[T]hat for and in consideration of the sum of two thousand pounds of good and lawful money of Upper Canada to them in hand; and for the further perpetual annuity of five hundred pounds, the same to be paid and delivered to the said Chiefs and their Tribes…. The said William Benjamin Robinson, on behalf of Her Majesty, who desires to deal liberally and justly with all Her subjects, further promises and agrees that in case the territory hereby ceded by the parties of the second part shall at any future period produce an amount which will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them, 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
(the “Augmentation Clause”).
Principles of Treaty Interpretation
The Restoule case is squarely one of treaty interpretation. In reciting the law as it has developed in respect of treaty interpretation, Justice Hennessy held that
The purpose of historic treaties…is to reconcile the pre-existence of Indigenous societies with the assertion of Crown sovereignty. Therefore, treaties must be interpreted in a way that achieves the purpose of the treaty, gives effect to the interpretation of the parties’ common intention that best reconciles the interests of both parties at the time the treaty was made, and that promotes the treaty’s reconciliatory function.
Justice Hennessy also restated the two-step approach to treaty interpretation as devised in R v Marshall:
1. Identify any patent ambiguities and misunderstandings arising from linguistic and cultural differences; and,
2. Consider the possible meanings of the text against the treaty’s historical and cultural context.
Justice Hennessy then added a third step:
3. Rely on the historical context to determine which interpretation comes closest to reflecting the parties’ common intention. This is done by choosing “from among the various possible interpretations of the common intention the one which best reconciles the parties’ interests.”
Interpretative Issues
Applying the law, Justice Hennessy distilled the dispute down to three competing interpretations of the Augmentation Clause:
1. The Augmentation Clause bound the Crown to pay up to $4 per person after which the Crown had no further liability;
2. The Augmentation Clause bound the Crown to make orders for further payments above $4 per person when the economic circumstances permitted the Crown to do so without incurring loss; and,
3. The reference in the Augmentation Clause to £1 ($4) applies only to individual annuities payments and did not preclude a collective amount that exceeds the individual cap.
Analysis
Underscoring that the central purpose of the Robinson Treaties was to “renew a relationship on which this country was founded”, Justice Hennessy concluded based on a lengthy historical review of the treaty-making process, that the third interpretation captured the common intention that best reconciles the parties’ interests.
Driving the Court’s conclusion is the fact that the Robinson Treaties were negotiated relatively cheaply in respect to other treaties negotiated in North America at the time. Justice Hennessy attributed this largely to the fact that the Province of Canada was suffering a significant economic downturn at the time. The entire purpose of the Augmentation Clause was to offset the low sum immediately offered to the “Chiefs and their Tribes” by promising a share of the future wealth of the territory, if and when such wealth proved to be forthcoming.
The third interpretation thus reconciled both the handiwork of William B. Robinson, the Crown negotiator, who managed to parlay the relatively small sum on offer from a barren treasury into a pair of treaties, with the Anishinaabe’s appreciation for the value of their territory and awareness of treaty precedents that had emerged prior to 1850.
Justice Hennessy determined that the “if and when” model upon which the augmentation clause was based was central to the understanding, aspiration, and intent of both the Anishinaabe and the Crown. Augmentation also captured the idea that the relationship between the parties was seen by the Anishinaabe to be reciprocal and inviting constant renewal while also being a pragmatic approach to the financial limits faced by the government of the Province.
Takeaways
Modern treaty interpretation is heavily centered around understanding the independent histories of the parties. The full historical record, as summarized by Justice Hennessy in the 600-paragraph decision, ultimately distinguished what originally appeared to be three equally probable interpretations of the Treaties. Moreover, the Court’s embrace of indigenous modes of retelling history has eroded the dominance of traditional narratives that have generally ignored the indigenous perspective. Recognizing indigenous leaders as savvy and diplomatic negotiators seeking both a fair and continuing relationship with their provincial and federal counterparts could have significant ramifications as more treaties are reexamined to ensure they comply with the common intention of the parties.