Ontario (Attorney General) v. Restoule

Ontario (Attorney General) v. Restoule
Collection
Supreme Court Judgments
Date
2024-07-26
Neutral citation
2024 SCC 27
Case number
40024
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
Ontario
Subjects
Aboriginal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Ontario (Attorney General) v. Restoule, 2024 SCC 27
Appeals Heard: November 7 and 8, 2023 Judgment Rendered: July 26, 2024 Docket: 40024
Between:
Attorney General of Ontario and His Majesty The King in Right of Ontario Appellants/Respondents on cross-appeal
and
Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850 Respondents/Appellants on cross-appeal
and
Attorney General of Canada Respondent
And Between:
Attorney General of Ontario and His Majesty The King in Right of Ontario Appellants/Respondents on cross-appeal
and
Chief and Council of the Red Rock First Nation, on behalf of the Red Rock First Nation Band of Indians and Chief and Council of the Whitesand First Nation, on behalf of the Whitesand First Nation Band of Indians Respondents/Appellants on cross-appeal
and
Attorney General of Canada Respondent
- and -
Attorney General of New Brunswick, Biigtigong Nishnaabeg First Nation (also known as the Begetikong Anishnabe First Nation or the Ojibways of the Pic River First Nation), Halfway River First Nation, Federation of Sovereign Indigenous Nations, Atikameksheng Anishnawbek, Manitoba Keewatinowi Okimakanak Inc., Carry the Kettle Nakoda Nation, Assembly of Manitoba Chiefs, Anishinabek Nation, Teme-Augama Anishnabai, Temagami First Nation, Union of British Columbia Indian Chiefs, Nlaka’pamux Nation Tribal Council, Chawathil First Nation, High Bar First Nation, Neskonlith Indian Band, Penticton Indian Band, Skuppah Indian Band, Upper Nicola Band, Indigenous Bar Association in Canada, West Moberly First Nations, Athabasca Tribal Council Ltd., Tsawout First Nation, Kee Tas Kee Now Tribal Council, Saugeen First Nation, Chippewas of Nawash Unceded First Nation, Grassy Narrows First Nation, Assembly of First Nations and Namaygoosisagagun Community (who refer to themselves as the Namaygoosisagagun Ojibway Nation) Interveners
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 311)
Jamal J. (Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, O’Bonsawin and Moreau JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Attorney General of Ontario and His Majesty
The King in Right of Ontario Appellants/Respondents on cross‑appeal
v.
Mike Restoule, Patsy Corbiere,
Duke Peltier, Peter Recollet, Dean Sayers
and Roger Daybutch, on their own behalf
and on behalf of all members of the
Ojibewa (Anishinaabe) Nation
who are beneficiaries of the
Robinson‑Huron Treaty of 1850 Respondents/Appellants on cross‑appeal
and
Attorney General of Canada Respondent
- and -
Attorney General of Ontario and His Majesty
The King in Right of Ontario Appellants/Respondents on cross-appeal
v.
Chief and Council of the Red Rock First Nation,
on behalf of the Red Rock First Nation Band of Indians
and Chief and Council of the Whitesand First Nation,
on behalf of the Whitesand
First Nation Band of Indians Respondents/Appellants on cross-appeal
and
Attorney General of Canada Respondent
and
Attorney General of New Brunswick,
Biigtigong Nishnaabeg First Nation (also known as
the Begetikong Anishnabe First Nation or
the Ojibways of the Pic River First Nation),
Halfway River First Nation,
Federation of Sovereign Indigenous Nations,
Atikameksheng Anishnawbek,
Manitoba Keewatinowi Okimakanak Inc.,
Carry the Kettle Nakoda Nation,
Assembly of Manitoba Chiefs,
Anishinabek Nation,
Teme-Augama Anishnabai,
Temagami First Nation,
Union of British Columbia Indian Chiefs,
Nlaka’pamux Nation Tribal Council,
Chawathil First Nation,
High Bar First Nation,
Neskonlith Indian Band,
Penticton Indian Band,
Skuppah Indian Band,
Upper Nicola Band,
Indigenous Bar Association in Canada,
West Moberly First Nations,
Athabasca Tribal Council Ltd.,
Tsawout First Nation,
Kee Tas Kee Now Tribal Council,
Saugeen First Nation,
Chippewas of Nawash Unceded First Nation,
Grassy Narrows First Nation,
Assembly of First Nations and
Namaygoosisagagun Community
(who refer to themselves as the
Namaygoosisagagun Ojibway Nation) Interveners
Indexed as: Ontario (Attorney General) v. Restoule
2024 SCC 27
File No.: 40024.
2023: November 7, 8; 2024: July 26.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
on appeal from the court of appeal for ontario
Aboriginal law — Treaty rights — Historic treaties — Interpretation — Standard of review — Two treaties between First Nations and Crown containing clause according to which annual payments in exchange for ceded land would be augmented over time under certain circumstances — Annuities increased only once in 1875 — First Nations commencing actions against Crown for breach of treaties — Trial judge interpreting augmentation clause and articulating nature and content of Crown’s obligation to increase annuities — Standard of appellate review for interpretation of historic treaties — Proper interpretation of augmentation clause.
Aboriginal law — Treaty rights — Honour of Crown — Fiduciary duty — Duty of diligent implementation — Breach — Remedies — First Nations commencing actions against Crown for breach of two treaties providing for increase over time of annual payments in exchange for ceded land — Whether Crown’s obligation under augmentation clause engages specific duties flowing from honour of Crown — Whether Crown has fiduciary duties in respect of augmentation clause — Whether Crown has duty to diligently implement augmentation clause — Appropriate remedy for Crown’s breach of treaties.
Limitation of actions — Breach of treaty — First Nations commencing actions against Crown for breach of historic treaties — Whether actions statute-barred by applicable provincial limitations legislation — Limitations Act, R.S.O. 1990, c. L.15.
In 1850, the Anishinaabe of Lake Huron and Lake Superior entered into land cession treaties with the Crown. Under these treaties, known as the Robinson Treaties, the Anishinaabe ceded their territories to the Crown in exchange for, among other things, a perpetual annual payment of £600 under the Robinson-Huron Treaty and £500 under the Robinson-Superior Treaty. At the time the treaties were signed in 1850, the annuity was equivalent to about $1.70 per person under the Robinson-Huron Treaty and $1.60 per person under the Robinson-Superior Treaty. The treaties contained an “Augmentation Clause”, according to which the annuities were to be increased over time if the ceded lands produced an amount that would allow the Crown to increase the annuity without incurring loss. A condition of the augmentation was that the amount “paid to each individual” would not exceed £1 (at the time, equal to approximately $4) a year, or “such further sum as Her Majesty may be graciously pleased to order”. The annuities were increased to $4 per person in 1875, but have been frozen at that amount since then.
The Lake Superior Anishinaabe (“Superior plaintiffs”) filed a statement of claim in 2001 seeking declaratory and compensatory relief relating to the interpretation, implementation, and alleged breach of the Augmentation Clause. The Lake Huron Anishinaabe (“Huron plaintiffs”) filed their own claim in 2014. The actions were tried together in three stages: Stage One addressed the interpretation of the treaties, Stage Two considered Ontario’s defences of Crown immunity and limitations, and Stage Three concerned the plaintiffs’ claim for damages and the allocation of liability between Canada and Ontario.
At Stage One, the trial judge held that the Crown has a mandatory and reviewable obligation under the Augmentation Clause to increase the annuities when the economic circumstances warrant — i.e., if the net Crown resource-based revenues permit the Crown to increase the annuities without incurring a loss. The trial judge also found that the Crown must engage in a consultative process with the treaty beneficiaries and pay an increased annuity reflecting a fair share of the net Crown resource-based revenues. She further held that the reference to £1 (or $4) limits only the amount distributed to individuals, but does not limit or impose a cap on the total collective annuity. The trial judge rejected the argument that the Crown was under a sui generis fiduciary duty to administer the ceded land on behalf of the treaty beneficiaries, but she accepted that the principle of the honour of the Crown and an ad hoc fiduciary duty require the Crown to diligently implement the Augmentation Clause. At Stage Two, the trial judge ruled that Crown immunity and provincial limitations legislation did not bar the plaintiffs’ claims. Stage Three was argued but has been stayed pending the present appeals. The Huron plaintiffs did not participate in Stage Three as they reached a settlement with Ontario and Canada dealing with claims for compensation in respect of past breaches of the Augmentation Clause.
The Court of Appeal allowed in part Ontario’s appeals from the Stage One judgment and amended the trial judge’s Stage One orders. It dismissed Ontario’s appeals from the Stage Two judgment. The court issued four sets of reasons with a shifting majority on each issue. A majority ruled that treaty interpretation is a question of law reviewable on a correctness standard, even when informed by findings of fact that are reviewable on a deferential standard. A different majority held that the trial judge did not err in her interpretation of the Augmentation Clause, except in concluding that the Robinson Treaties promised the Anishinaabe a fair share of the net Crown revenues. It agreed that there is a mandatory and reviewable obligation on the Crown to increase the annuities when the economic conditions warrant, and that the reference to £1 is a limit only on the part of the total annuity that may be distributed to individuals. It also held that the honour of the Crown obliges the Crown to increase the annuities beyond $4 as part of its duty to diligently implement the treaties. The Court of Appeal unanimously agreed with the trial judge that the Crown does not have unfettered discretion about whether to increase the annuities. As well, it held that, given the Crown’s neglect of the treaty promise for almost 150 years, the court had the authority and obligation to impose specific and general duties on the Crown regarding the Augmentation Clause. Further, the Court of Appeal unanimously ruled that the trial judge erred in finding that the Crown is under an ad hoc fiduciary duty regarding the implementation of the Augmentation Clause, but agreed that no sui generis fiduciary duty arises. The court also concluded that no statutory limitation period precluded the claims for breach of the Robinson Treaties, and that it was not necessary to consider Crown immunity. Finally, a majority of the court held that the nature of the revenue sharing required by the Augmentation Clause is to be determined by the parties in negotiations or by the trial judge in Stage Three.
Ontario appeals to the Court, raising questions about the appropriate standard of review for the interpretation of the Robinson Treaties, the proper interpretation of the Augmentation Clause, the nature and content of the Crown’s obligation to give effect to that clause and the appropriate remedy for its breach, and the relevance of statutory limitation periods to the claims. The Huron and Superior plaintiffs cross‑appeal on the question of the Crown’s fiduciary duties. Before the Court, neither Canada nor Ontario disputes that they are in longstanding breach of the annuity promises.
Held: The appeals should be allowed in part, the cross‑appeals dismissed, and a declaration issued.
The interpretation of historic Crown-Indigenous treaties is reviewable for correctness. Applying this standard of review to the instant case, along with the relevant treaty interpretation principles, the Crown has a duty to consider, from time to time, whether it can increase the annuities without incurring loss. If the Crown can increase the annuities beyond $4 per person, it must exercise its discretion and decide whether to do so and, if so, by how much. This discretion is not unfettered; it is to be exercised liberally, justly, and in accordance with the honour of the Crown. The frequency with which the Crown must consider whether it can increase the annuities must also be consistent with the honour of the Crown. In addition, given the longstanding and egregious nature of the Crown’s breach of the Augmentation Clause, the Crown must exercise its discretion and increase the annuities with respect to the past. Having already reached a negotiated settlement concerning past breaches with the Huron plaintiffs, the Crown is directed to engage in time-bound and honourable negotiation with the Superior plaintiffs about compensation for past breaches. As well, the breach of treaty claims are not statute‑barred by Ontario’s limitations legislation. Finally, although no specific fiduciary duties apply in respect of the augmentation promise, the honour of the Crown requires the Crown to diligently fulfill this promise. The Crown’s ongoing breach of the Augmentation Clause, in the circumstances, is also a breach of the treaties themselves.
Treaties are sui generis agreements intended to advance reconciliation. The Crown’s assertion of sovereignty gave rise to a distinctive legal relationship between the Crown and Indigenous peoples. That distinctive legal relationship is reflected in treaties, which represent an exchange of solemn promises and are governed by special rules of interpretation. In order to promote reconciliation, treaty rights must be interpreted and implemented in accordance with the honour of the Crown — the principle that servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign.
Although all treaty rights must be interpreted in accordance with the honour of the Crown, there are important differences between historic (pre‑1921) and modern (post‑1973) treaties. The words in an historic treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of interpretation. They should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the Indigenous signatories. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed. The court must be sensitive to the unique cultural and linguistic differences between the parties, and the words of the treaty must be given the sense which they would naturally have held for the parties at the time. While construing the language generously, the court cannot alter the terms of the treaty by exceeding what is possible or realistic. Treaty rights must not be interpreted in a static or rigid way; they are not frozen at the date of signature. Because a court must consider both the words of a treaty and the historical and cultural context, it is useful to 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 standard of review for the interpretation of historic treaties is correctness. The constitutional nature of treaties as nation‑to‑nation agreements that engage the honour of the Crown and the process of reconciliation itself demands that appellate courts be given wide latitude to correct errors in their interpretation when necessary. The perpetual, multi‑generational nature of treaty rights calls for the consistency of interpretation that is the goal of correctness review. A court’s interpretation of treaty rights will be binding in perpetuity and has a significant precedential character. In addition, historic Crown‑Indigenous treaties are binding not only on their direct signatories; they are binding upon all Canadians who, because of the Crown’s assertion of sovereignty, are also effectively implicated. A court’s interpretation of an historic treaty thus has extensive normative reach, which further supports correctness review.
Although the interpretation of an historic treaty right is reviewable for correctness, the factual findings underpinning that interpretation attract deference and are reviewable only for palpable and overriding error. The policy rationales supporting such deference include the need to limit the number, length, and cost of appeals, to promote the autonomy and integrity of trials, and to recognize the expertise and advantageous position of the trial judge who has reviewed the evidence. The last of these is particularly significant in historic treaty interpretation where the trial judge’s factual determinations are the product of a robust and highly involved trial process.
The wording of the Augmentation Clause in the Robinson Treaties must be considered in the context of the purpose of the treaties as a whole. Under the treaties, the Anishinaabe ceded their interest in identified lands, were granted reserve lands to live on, retained treaty rights to hunt and fish, and were promised a perpetual annuity. The Robinson Treaties departed from the fixed annuity model used in other treaties, as they allowed for the annuities to be increased or decreased, depending on the circumstances. The Augmentation Clause contemplates some general notion of sharing future revenues of the ceded territories. It gives voice to the Crown’s goal of acquiring immediate access to the ceded territories and opening them up to settlement and economic development. It is also consistent with the Anishinaabe’s perspectives on the treaty relationship: 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 their expectation that a gift would attract a reciprocal gift of commensurate value; 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 treaties would adjust as economic circumstances changed.
At step one of the two-step framework for treaty interpretation, the wording of the Augmentation Clause must be examined to identify its possible interpretations. It provides that the annuities “shall be augmented from time to time” if the ceded lands produce an amount that would allow the Crown to “increase” the annuities “without incurring loss”. A condition of the augmentation promise is that the amount “paid to each individual” would not exceed £1 a year, or “such further sum as Her Majesty may be graciously pleased to order”. Although there are various possible interpretations of the Augmentation Clause, the real debate is between an interpretation that involves both a collective and an individual part to the annuity, and an interpretation that involves only one individual part. There is an ambiguity as to what the parties intended, because the annuity is stated in another clause of the treaties to be delivered to the “Chiefs and their Tribes”, while the Augmentation Clause refers to “the amount paid to each individual”.
In order to choose the interpretation that comes closest to reflecting the parties’ common intention, it is necessary to proceed to the second step of the treaty interpretation framework and consider the wording of the Augmentation Clause against its historical and cultural backdrop. It is only at the end of the two-step exercise that a genuinely ambiguous treaty term can be resolved. Both the language of the Augmentation Clause and its historical and cultural context support an interpretation that involves only one component: a perpetual annuity payable to the “Chiefs and their Tribes” that could be increased if an economic condition was met — i.e., if the economic circumstances permitted the Crown to do so without incurring loss. The reference to the “amount paid to each individual” not exceeding $4 does not create an obligation to pay an annuity to individuals, separate from an obligation to pay the collective; it merely imposes a condition on the obligation to augment the annuity. It would have been highly unusual for the Crown to have included in the middle of the Augmentation Clause an obligation to pay a part of the annuity to individuals, separate from the obligation to pay the collective, as this would be a fundamental change to the established patterns of treaty making and would have been unprecedented. As well, there is no evidence of an intention to grant an annuity divided between a collective part and an individual part, or that either party believed that the annuity had both collective and individual parts. Finally, the manner in which payments were made tends to refute the suggestion of a bifurcated annuity; neither the Huron nor the Superior annuity has ever been paid contemporaneously to both the collective and to individuals.
Thus, the proper interpretation of the Augmentation Clause is that it obliges the Crown to pay a single annuity to the Anishinaabe “Chiefs and their Tribes”. There is a mandatory obligation to increase the annuity up to $4 when the economic circumstances warrant, as was done in 1875. This increased annuity is a “soft cap” beyond which further increases are discretionary. 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 to determine whether to do so and, if so, by how much. This exercise of discretion is not unfettered; it is justiciable and reviewable by the courts. The Crown must exercise its discretion, including 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.
The Huron and Superior plaintiffs’ breach of treaty claims are not statute-barred by Ontario’s 1990 Limitations Act. First, the plaintiffs’ breach of treaty claims are not “actions on the case” subject to a limitation period under the Act. An action “on the case” was a common law action that allowed plaintiffs to bring claims for personal wrongs and injuries that could not be brought in trespass; they were generally limited to actions in the nature of tort, but in some cases were extended to actions in the nature of contract as well. A claim for breach of a treaty right is fundamentally different than an action on the case. Treaty claims are not based in tort or contract: they are based on constitutional rights, engaging issues of public law rather than private law. Moreover, the 1990 Limitations Act applies only to a closed list of enumerated causes of action, and the action on the case cannot be used as a catch-all cause of action or basket clause capturing any claim not expressly mentioned in the Act. In addition, in the 2002 amendments to the Act, Aboriginal and treaty rights were excluded from the limitation periods established in the statute. In making these amendments, the legislature understood that treaty claims are distinct from other causes of action, and dealt with such claims explicitly.
Second, the plaintiffs’ claims for equitable compensation are also not “actions of account” subject to a limitation period under the 1990 Limitations Act. While actions of account can include common law and equitable claims, the origin and scope of this type of action suggest it is ill-suited to the context of Crown-Indigenous treaties. An action of account was typically used at common law against a person who was required to render an account to another because of a fiduciary relationship. While the relationship between the Crown and Indigenous peoples is fiduciary in nature, no specific fiduciary obligation arises in the instant case to potentially bring the plaintiffs’ claims within the scope of actions of account. In addition, the correct interpretation of the Augmentation Clause reveals that the Crown is not required to account to the treaty beneficiaries for the proceeds of the ceded territories. Rather, increases to the annuities beyond $4 are discretionary. Finally, there appears to be no precedent treating Aboriginal or treaty rights as actions of account.
The honour of the Crown is a constitutional principle that must guide the interpretation and implementation of the Augmentation Clause and the appropriate remedies for the Crown’s breach. Although the honour of the Crown is a powerful constitutional doctrine, it is not a cause of action in itself; rather, it speaks to how obligations that attract it must be fulfilled. It is not a mere incantation, but rather a core precept that finds its application in concrete practices, and gives rise to different duties in different circumstances.
The honour of the Crown can give rise to a fiduciary duty where the Crown assumes discretionary control over a cognizable Aboriginal interest. The Crown may owe ad hoc and sui generis fiduciary duties to Indigenous peoples in respect of certain interests. An ad hoc fiduciary duty may arise from the relationship between the Crown and Indigenous peoples where the general conditions for such a private law fiduciary relationship are satisfied — that is, where the Crown has undertaken to exercise its discretionary control over a legal or substantial practical interest in the best interests of the alleged beneficiary. In the instant case, this duty does not arise. There is no evidence that the Crown undertook to act in the best interests of the Huron and Superior plaintiffs or with utmost loyalty in discharging its obligations. Moreover, in exercising its discretion about whether to increase the annuities, the Crown must consider the wider public interest; its obligations regarding the Augmentation Clause could not have involved an undertaking to forsake the interests of all others in favour of the Anishinaabe.
A sui generis fiduciary duty is specific to the relationship between the Crown and Indigenous peoples. Its origins lie in protecting the interests of Indigenous peoples in recognition of the degree of economic, social, and proprietary control and discretion asserted by the Crown over them. A sui generis fiduciary duty arises where there is: (1) a specific or cognizable Aboriginal interest; and (2) a Crown undertaking of discretionary control over that interest. In the instant case, there is no specific or cognizable Aboriginal interest identified by the Huron and Superior plaintiffs. Their treaty right under the Augmentation Clause is, by definition, not sufficiently independent of the Crown’s executive functions, because it arises from the exercise of the Crown’s executive treaty-making function. Nor is the Huron and Superior plaintiffs’ pre-existing interest in their ceded land a specific or cognizable Aboriginal interest. Even if it were, the second requirement for a sui generis fiduciary duty — an undertaking by the Crown of discretionary control over the interest — is not met: neither the treaty text nor the context in which the Robinson Treaties were signed provide any evidence that the Crown would administer the land on behalf of the treaties’ beneficiaries.
While the Crown is not subject to a fiduciary duty in respect of the Augmentation Clause, the Crown is subject to a duty to diligently implement or fulfill that promise, and its failure to do so is a breach of the Robinson Treaties. The duty of diligent implementation holds the Crown responsible for making good on its treaty promises. This duty flows directly from the honour of the Crown and requires the Crown to take a broad purposive approach to the interpretation of a promise and to act diligently to fulfill it. This requires that the Crown seek to perform the obligation in a way that pursues the purpose behind the promise. The duty of diligent implementation cannot impose only procedural obligations regarding the implementation of the Augmentation Clause — by which the Crown would simply be required to consider or turn its mind to discretionary increases to the annuities from time to time. While the duty of diligent implementation speaks to how Crown obligations must be fulfilled, rather than specifying a particular result in a given case, courts must guard against divorcing the duty of diligent implementation from the very nature of the treaty promise at issue. Since 1875, the Crown has failed to consider whether it can increase the annuities, and thus has breached its duty to diligently implement the treaties’ Augmentation Clause. In these circumstances, the Crown is required to pay an amount, which is subject to review by the courts, to compensate the Superior plaintiffs for its past breach of the Augmentation Clause.
Because the Crown has breached its duty to diligently fulfill the Augmentation Clause under the Robinson Treaties, the Huron and Superior plaintiffs are entitled to a remedy. In principle, the full range of remedies — declaratory and coercive — is available. Courts should take a purposive approach to determining the appropriate remedy. The controlling question is what is required to maintain the honour of the Crown and to effect reconciliation. In the instant case, the Anishinaabe have been left with an empty shell of a treaty promise for almost a century and a half. In this context, a declaration setting out the rights and obligations of the treaty parties, including the Crown’s obligations under the Augmentation Clause, will be a helpful and appropriate remedy as it will inform both the future implementation of the Robinson Treaties and clarify the nature of the past breach.
At the same time, given the longstanding and egregious nature of the Crown’s breach, a declaration alone would be insufficient. Although the Crown was able to increase the annuities beyond $4 per person without incurring loss in the past, and it should have exercised its discretion to do so, well over a century has passed since the Crown has turned its mind to that promise, and to the renewal of the relationship itself. The Crown has severely undermined both the spirit and substance of the Robinson Treaties. 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.
Given that the Crown has reached a negotiated settlement concerning past breaches with the Huron plaintiffs, but not with the Superior plaintiffs, further direction should be provided to the Crown regarding the Superior plaintiffs to ensure that it exercises its discretion under the Augmentation Clause in a timely and honourable manner regarding compensation for past breaches. In respect of the period from 1875 to the present, the Crown must increase the annuity payable to the Superior plaintiffs under the Robinson Treaties beyond $4 per person retrospectively since it would be patently dishonourable not to do so. However, proceeding immediately to a judicially calculated damages award for past breaches would not be appropriate at this time, given the nature of the treaty promise as a discretionary one, the proper role of the courts, and the need to effectively repair the treaty relationship and restore the honour of the Crown. The Augmentation Clause is not a promise on the part of the Crown to pay a certain sum of money. Rather, it is a promise to consider whether the economic conditions allow the Crown to increase the annuities without incurring loss and, if they do, to exercise its discretion and determine whether to do so and, if so, by how much. Until the Crown has exercised that discretion through honourable engagement with its treaty partners and has proposed an amount of compensation, it should generally not be judicially compelled to pay a certain sum. A judicially calculated damages award would remove any Crown discretion and any engagement between treaty partners.
Instead, a narrow, time-bound window for honourable negotiation, after which the Crown would be required, failing a settlement, to exercise its discretion honourably and determine an amount of compensation, has greater potential to fulfill the purposes of the Augmentation Clause and hold the Crown to account for its breach of the treaty to date. Negotiation and agreement outside the courts have better potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown. This approach would also respect the proper role of the courts. The amount by which the Crown might increase the annuity is a polycentric and discretionary determination that will inevitably reflect many social, economic, and policy considerations that may change over time, affecting the frequency and nature of net revenue and annuity calculations. Determining the amount of compensation owed for the past will involve similar considerations, including weighing the solemnity of the Crown’s obligations to the Anishinaabe against the needs of other Ontarians and Canadians, Indigenous and non-Indigenous alike. This is well within the expertise of the executive branch, but is much less within that of the courts. While courts are not incompetent or unable to entertain these considerations when necessary, they are generally not well equipped to make such choices or to evaluate the wide‑ranging consequences that flow from policy implementation. Accordingly, courts should exercise considerable caution before intervening.
Although it is not the business of the courts to force the Crown to exercise its discretion in a particular way, it is very much their business to review exercises of Crown discretion to ensure compliance with treaty obligations and the honour of the Crown. The Crown should be directed to engage meaningfully and honourably with the Superior plaintiffs in an attempt to arrive at a just settlement regarding past breaches. If such a settlement cannot be mutually agreed upon, the Crown will be obliged to exercise its discretion under the Augmentation Clause and set an amount as compensation. That amount, and the process through which it is arrived at, will be subject to review by the courts. The courts should focus on the justification of the Crown’s determination and consider factors such as: the nature and severity of the Crown’s past breaches; the number of Superior Anishinaabe and their needs; the benefits the Crown has received from the ceded territories; the wider needs of other Indigenous and non‑Indigenous populations of Ontario and Canada; and principles and requirements flowing from the honour of the Crown, including its duty to diligently implement its sacred promise under the treaty to share in the wealth of the land. If the Crown has exercised its discretion liberally, justly, and honourably, then the courts should not intervene. If the courts find that the Crown’s process or its ultimate determination was not honourable, they may consider the appropriate remedy, including whether to remand the issue to the Crown for redetermination or set the amount to be paid by the Crown.
Cases Cited
Applied: R. v. Marshall, [1999] 3 S.C.R. 456; considered: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; R. v. Sundown, [1999] 1 S.C.R. 393; Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Southwind v. Canada, 2021 SCC 28, [2021] 2 S.C.R. 450; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222; referred to: Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, aff’d Attorney‑General for the Dominion of Canada v. Attorney-General for Ontario, [1897] A.C. 199; R. v. Marshall, [1999] 3 S.C.R. 456; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; R. v. Badger, [1996] 1 S.C.R. 771; Simon v. The Queen, [1985] 2 S.C.R. 387; R. v. Sioui, [1990] 1 S.C.R. 1025; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576; R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915; Beattie v. Canada, 2002 FCA 105, 288 N.R. 254; Horseman v. Canada, 2016 FCA 238; Canada v. Jim Shot Both Sides, 2022 FCA 20, 468 D.L.R. (4th) 98, rev’d in part 2024 SCC 12; West Moberly First Nations v. British Columbia, 2020 BCCA 138, [2021] 3 W.W.R. 561; Chingee v. British Columbia (Attorney General), 2005 BCCA 446, 261 D.L.R. (4th) 54; R. v. Morris, 2004 BCCA 121, 237 D.L.R. (4th) 693, rev’d 2006 SCC 59, [2006] 2 S.C.R. 915; Goodswimmer v. Canada (Attorney General), 2017 ABCA 365, 418 D.L.R. (4th) 157; Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 206 D.L.R. (4th) 638; Newfoundland and Labrador v. Nunatsiavut Government, 2022 NLCA 19; R. v. Van der Peet, [1996] 2 S.C.R. 507; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352; Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, 178 D.L.R. (4th) 666; Fort McKay First Nation v. Prosper Petroleum Ltd., 2019 ABCA 14; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427; Roncarelli v. Duplessis, [1959] S.C.R. 121; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175; La Presse inc. v. Quebec, 2023 SCC 22; R. v. Taylor (1981), 34 O.R. (2d) 360; R. v. J.F., 2022 SCC 17; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; Perry, Farley & Onyschuk v. Outerbridge Management Ltd. (2001), 54 O.R. (3d) 131; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; National Trust Co. v. H & R Block Canada Inc., 2003 SCC 66, [2003] 3 S.C.R. 160; Hanemaayer v