Last week, the Supreme Court of Canada issued a landmark decision in the Restoule treaty annuities case.
In a unanimous decision, the Court held that the Crown must compensate the Anishinaabe beneficiaries to the Robinson Treaties for the Crown’s longstanding failure to uphold its sacred promise to share the wealth derived from lands within the treaty territories.
What it’s About
In 1850, the Anishinaabe of the Upper Great Lakes region entered into the Robinson Huron and Robinson Superior Treaties with the Crown.
The written text of the treaties provides that the Crown would pay the Anishinaabe treaty beneficiaries a perpetual annual payment, and that the payment would be increased over time if resource development from the territories was such that the Crown could do so without incurring a loss.
The annuity payments have remained at $4 per person since 1875. During the same period, billions of dollars have been generated from resources in the treaty territories.
What Happened
The Anishinaabe treaty beneficiaries brought actions against Canada and Ontario for the Crown’s failure to increase the annuities as promised under the treaties.
The trial judge and the Ontario Court of Appeal held the Crown has an obligation to increase the annuity payments that was reviewable by the courts. For further background on the lower court decisions, see our previous commentary on the Restoule litigation.
Ontario appealed to the Supreme Court. Prior to the hearing, the Huron treaty beneficiaries reached a settlement with Canada and Ontario for claims for compensation for past breaches of the annuity promise. The Superior treaty beneficiaries’ claim remained unresolved.
On the appeal, Ontario did not dispute that it had breached the annuity promise, but argued that the Crown had discretion to determine whether and how to increase annuity payments, and that the exercise of its discretion could not be reviewed by the courts.
What the Court Said
The Supreme Court unanimously held that the Crown breached the Robinson Treaties and made a “mockery” of its treaty promises to the Anishinaabe treaty beneficiaries by failing to act honourably and to diligently fulfil the annuity promise.
The Court held that the Crown has an obligation to consider whether it can increase the annuities without incurring a loss, and to exercise its discretion as to whether annuities should be increased and how much.
When making this decision, the Crown must act honourably, and in a manner consistent with Anishinaabe principles and values. The Crown’s discretion can be reviewed by the courts.
The Court set a deadline of 6 months for the Crown to decide how much to compensate the Superior treaty beneficiaries for breaches of the annuity promise between 1875 and the present. If the Superior treaty beneficiaries disagree with the amount offered by the Crown, they can ask the court to review it.
If the court finds the amount is inadequate or that the Crown’s process for determining the amount was flawed, it can send it back to the Crown for determination, or order the Crown to pay a different amount.
Why It’s Important
The Supreme Court’s decision provides clear, unequivocal confirmation that for almost 150 years, the Crown has been in breach of the annuity promises under the Robinson Treaties.
The decision puts the onus on the Crown to either reach an agreement with the Superior treaty beneficiaries or propose an amount of compensation sufficient to address the breach. If the Crown fails to do so, it will be open to a court to intervene to ensure the Superior treaty beneficiaries are properly compensated for the Crown’s treaty breach.
The decision will also have implications beyond the parties to the Restoule action.
The decision affirms that courts can, and should, hold the Crown accountable for failing to uphold its promises to its Indigenous treaty partners.
The decision further affirms that treaties are legally binding on the Crown and that the full range of judicial remedies – including compensation and damages – is available for breach of treaty.
On a less positive note, the decision also perpetuates the Court’s ongoing pattern of disregard for the views and perspectives of the Indigenous parties to the treaties.
The Court expressly recognizes that the Anishinaabe treaty parties’ perspectives on the treaties are informed by their inherent laws and governance systems, along with values of respect, responsibility, reciprocity and renewal.
At the same time, however, the decision relies on the assumption that the Anishinaabe treaty parties agreed to cede and surrender their lands on entering into the treaties – an assumption fundamentally at odds with the perspective of the Anishinaabe Elders who testified before the trial judge, as well as that of other Indigenous treaty parties across the country.
By continuing to rely on the written English text of the treaties, without also giving effect to views of the Indigenous parties, the Court risks prolonging serious misunderstandings and inaccuracies regarding the basis on which the Crown and Indigenous peoples agreed to enter into treaties in the first place.
Looking Ahead
Crown governments in Canada have consistently and publicly committed to reconciliation with Indigenous peoples.
The Restoule decision provides a roadmap for the Crown to follow to rectify the breach of its promises under the Robinson Treaties. It also clarifies that courts will step in to ensure accountability if the Crown fails to do so.
The decision is also a reminder of the work that remains to be done to ensure that Indigenous peoples’ perspectives and views on the treaties are understood, honoured, and reflected in decisions from Canadian courts.
First Peoples Law LLP represented Anishinabek Nation, and Teme-Augama Anishnabai and Temagami First Nation, on their interventions in the Restoule appeal. The statements here are made on our own behalf and reflect our views on this issue, not those of our clients.
Kate Gunn is partner at First Peoples Law LLP. Kate completed her Master of Law at the University of British Columbia. Kate is co-author of Indigenous Peoples and the Law in Canada: Cases and Commentary.
Contact Kate and connect with her on LinkedIn and Twitter
First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.
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