|
Indigenous - Remedies (2). Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court considers 'unique' indigenous remedies for the case before it:[10] .... Applying this standard of review, along with the treaty interpretation principles articulated by this Court, 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 without incurring loss, it must exercise its discretion and decide whether to increase the annuities 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. Although the Augmentation Clause is not in itself a promise to pay the Anishinaabe a certain sum of money, no party doubts that the Crown was able to increase the annuities beyond $4 per person without incurring loss, and that it should have exercised its discretion to do so. Thus, in my view, the Crown must increase the annuity under the Robinson Treaties beyond $4 per person retrospectively, from 1875 to the present. It would be patently dishonourable not to do so. I further conclude, as both courts below did, that the plaintiffs’ 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 Clause, the honour of the Crown requires the Crown to diligently fulfill this promise. The Crown’s ongoing breach of its augmentation promise, in the circumstances, is also a breach of the treaties themselves.
....
F. The Remedy for the Crown’s Failure To Diligently Implement the Augmentation Promise
(1) Introduction
[265] The remedy owed by the Crown for its breach of the Robinson Treaties, and the potential for that remedy to advance reconciliation, are pivotal issues in these appeals.
....
[271] In my view, a declaration clarifying the rights and obligations of the parties is an appropriate remedy in this case, 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 of the Augmentation Clause for almost a century and a half, a declaration, while helpful, would be insufficient to renew the treaty relationship and restore the Crown’s honour. The Crown must provide redress for the conceded breach of its duty. In doing so, the Crown should take into account various factors including, but not limited to, the nature and severity of the breaches, the number of Anishinaabe and their needs, the benefits the Crown has received from the ceded territories and its expenses over time, the wider needs of other Indigenous populations and the non-Indigenous populations of Ontario and Canada, and the 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 it proved profitable. However, it is appropriate for that redress to be negotiated by the treaty partners, in a manner that is consistent with the goal of reconciliation.
[272] As I will elaborate, I would therefore provide further direction requiring the Crown to engage in honourable and time-bound negotiation with the Superior plaintiffs concerning compensation for past breaches of the Augmentation Clause. If the parties are unable to arrive at a negotiated settlement, then the Crown must, within six months of the release of these reasons, exercise its discretion under the Augmentation Clause and set an amount to compensate the Superior plaintiffs for past breaches. The amount, and the process through which it is arrived at, will be subject to review by the courts.
(2) The Full Range of Remedies Is Available
[273] The Crown’s breach of the augmentation promise is both a breach of the duty of diligent fulfillment and a breach of the treaty itself. In principle, the full range of remedies — declaratory and coercive — is available.
[274] It is a well-established principle of Canadian law that “[w]here there are legal rights there are remedies” (Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 102). Indeed, “a right has practical value only to the extent that it is vindicated by an adequate remedy” (J. Cassels and E. Adjin-Tettey, Remedies: The Law of Damages (3rd ed. 2014), at p. 1). Likewise, Aboriginal and treaty rights protected under s. 35(1) of the Constitution Act, 1982 will “not be meaningful without effective remedies” (K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at § 15:2).
[275] To respect their constitutional status, uphold the honour of the Crown, and advance reconciliation, Aboriginal and treaty rights can be no less enforceable than other constitutional rights (Sparrow, at pp. 1106-7; see also Van der Peet, at paras. 20-21). As the guardians of the Constitution and guarantors of constitutionally entrenched rights, courts are responsible for ensuring that Aboriginal and treaty rights are protected by adequate, effective, and meaningful remedies (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 155; Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, at p. 753).
[276] Where the Crown has breached its treaty obligations or the duties arising from the honour of the Crown, the full range of remedies, including damages and other coercive relief, is available to remedy that breach (Roach, at § 15:2). In the duty to consult context, for example, this Court has recognized that a breach of the duty “can lead to a number of remedies ranging from injunctive relief against the threatening activity altogether, to damages, to an order to carry out the consultation prior to proceeding further with the proposed government conduct” (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at para. 37, citing Haida Nation, at paras. 13-14).
[277] As with other constitutional rights, courts should take a purposive approach to determining the appropriate remedy for breaches of treaty obligations (Roach, at § 15:2). As always, “[t]he controlling question . . . is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake” (Haida Nation, at para. 45). Restoring the honour of the Crown “requires the courts to be creative” within a principled legal framework and provide remedies that “forward the goal of reconciliation” (Hogg and Dougan, at p. 292; see also Roach, at §§ 15:1-15:2). . Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court consider 'declarations' as an appropriate indigenous remedy:[280] All parties agree that this Court can issue declaratory relief in this case. First, there is no question as to this Court’s jurisdiction over the issues in these appeals. Second, the dispute between the parties is real and not theoretical: the parties disagree about many live issues, including the correct interpretation of the Augmentation Clause, the duties it imposes on the Crown, and the remedy for the Crown’s breach of these duties. Third, although the Crown has acted dishonourably in neglecting its duties under the Augmentation Clause for close to 150 years, the long history of this litigation and the recent $10 billion settlement between the Crown and the Huron plaintiffs regarding past breaches suggest that all parties have a genuine interest in resolving the issues. Fourth, although before this Court Ontario now accepts that the appropriate remedy is a declaration stating that the Crown is required to exercise its discretion as to whether to augment the annuities, it has opposed declaratory relief of the kind sought by the plaintiffs for most of this litigation. Until recently, Ontario maintained that it had not breached the Augmentation Clause because it possessed unfettered discretion as to whether to increase the annuities beyond $4. In this sense, it has opposed a declaration recognizing its breach of the Augmentation Clause from day one. However, as this Court explained in Shot Both Sides v. Canada, 2024 SCC 12, at para. 81, the Crown’s belated concession of a breach of a treaty right should not foreclose the possibility of declaratory relief. To hold otherwise would “privilege form over substance with respect to the nature of the ‘real’ dispute before us, and would overlook the protracted nature of the dispute that led the parties to this point” (para. 81).
[281] In my view, there is considerable value in this Court providing a declaration that clarifies the Crown’s obligations regarding the Augmentation Clause and recognizes that the Crown has breached those obligations. Such a declaration will be a definitive statement of rights that the treaty partners can rely on in negotiations to determine how the Augmentation Clause must be honourably implemented regarding both the past and the future (see Manitoba Metis, at para. 137). In this regard, I agree with the following observations of Justice Rowe, writing extra-judicially with Diane Shnier:Declarations allow courts to state generally what is necessary to comply with constitutionally guaranteed treaty rights, and allow the government flexibility in how to achieve that compliance. Further, declarations about a discrete issue or aspect of an agreement may facilitate negotiation outside the litigation process, which can be particularly important in the context of treaties with Aboriginal peoples.
(“The Limits of the Declaratory Judgment” (2022), 67 McGill L.J. 295, at p. 318) [282] As this Court has noted, declaratory relief “is not meant to represent the end of the reconciliation process” for the Crown’s breach of a treaty; it “merely helps set the stage for further efforts at restoring the nation-to-nation relationship and the honour of the Crown” (Shot Both Sides, at para. 74).
|
