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Indigenous - Robinson Treaties. Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an historical indigenous lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
These quotes are the court's summary of the case:[1] These appeals test the Crown’s commitment to reconciliation with the Anishinaabe of the upper Great Lakes after the Crown has dishonourably breached its sacred promises to them under the Robinson Treaties for almost 150 years.
[2] The Robinson Treaties of 1850 comprise the Robinson-Huron Treaty and the Robinson-Superior Treaty. Under these treaties, the Anishinaabe of the northern shores of Lake Huron and Lake Superior ceded their vast territories in exchange for, among other things, an annual payment in perpetuity. The annuities were to be increased over time under certain circumstances. However, for almost 150 years, the annuities have been frozen at a shocking $4 per person, after the first and only increase was made in 1875. Today, in what can only be described as a mockery of the Crown’s treaty promise to the Anishinaabe of the upper Great Lakes, the annuities are distributed to individual treaty beneficiaries by giving them $4 each.
[3] This is the second time that issues relating to the annuity payments under the pre-Confederation Robinson Treaties have come before this Court. The last time, shortly after Confederation, involved an exercise of finger-pointing by Canada and the provinces as to who had to pay the annuities (Province of Ontario v. Dominion of Canada (1895), 1895 CanLII 112 (SCC), 25 S.C.R. 434, aff’d Attorney-General for the Dominion of Canada v. Attorney-General for Ontario, [1897] A.C. 199 (J.C.P.C.) (“In re Indian Claims”)). In the more than 125 years since then, Canada and Ontario have shown a persistent pattern of indifference to the Crown’s treaty obligations. Belatedly, before this Court, neither Canada nor Ontario disputes that they are in longstanding breach of the annuity promises under the Robinson Treaties. Although the Anishinaabe have upheld their end of the treaty bargain, the Crown has failed to do the same. Remedying this failure and restoring the honour of the Crown requires returning to the foundations of the treaty relationship between the Anishinaabe and the Crown.
[4] The Robinson Treaties built on a close relationship between the British and the Anishinaabe of the upper Great Lakes that existed long before 1850. That relationship was guided by the Covenant Chain alliance, dating back to the 17th century, which symbolized the close connection between the British Crown and Indigenous peoples, including the Anishinaabe. The British and the Anishinaabe maintained this connection in part through annual gift-giving around sacred “council fires” as expressions of mutual generosity and goodwill (see H. Bohaker, Doodem and Council Fire: Anishinaabe Governance through Alliance (2020), at pp. xxvi and 17-18). As European settlement increased, the Crown assured the Anishinaabe that their autonomy and title to land would be protected.
[5] By the mid-1800s, however, that assurance was jeopardized as the Crown began unilaterally granting mining licences to settlers along the northern shores of Lake Huron and Lake Superior. The Anishinaabe demanded a treaty to provide them with compensation for the use of their traditional unceded territories. In September 1850, after significant negotiations between the Anishinaabe and the Crown’s representative, William Benjamin Robinson, the Huron and Superior Anishinaabe entered into land cession treaties with the Crown around a council fire at Bawaating or Sault Ste. Marie.
[6] The two treaties are substantially the same, each promising a lump-sum payment of £2,000 in addition to an annual payment of £500 under the Robinson-Superior Treaty and £600 under the Robinson-Huron Treaty. These promises are accompanied by a clause in each treaty that provides for the augmentation of the annuities under certain circumstances (“Augmentation Clause”). The interpretation of that clause and the remedies for its breach are at the heart of these appeals.
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[11] 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. The Crown has reached a negotiated settlement concerning past breaches with the Huron plaintiffs, but not with the Superior plaintiffs. With a view to respecting the nature of the treaty promise, repairing the treaty relationship, restoring the honour of the Crown, and advancing reconciliation, I would also direct the Crown to engage in time-bound and honourable negotiation with the Superior plaintiffs about compensation for past breaches of the Augmentation Clause. If the Crown and the Superior plaintiffs cannot arrive at a negotiated settlement, the Crown will be required, within six months of the release of these reasons, to exercise its discretion and determine an amount to compensate the Superior plaintiffs for past breaches.
[12] Given this direction, Stage Three, if required, must be modified in accordance with these reasons and would function as a review by the courts of the Crown’s process in determining the amount of compensation, and of the amount determined, both of which must be just and honourable. If the court finds that the amount determined by the Crown is not honourable, it may require the Crown to redetermine the amount or set the amount to be paid by the Crown, lest the Crown continue to undermine the very object and purpose of the treaty promise.
[13] At the end of the oral submissions before this Court, Ontario’s counsel stated: “. . . I accept I am facing [a] 150 year history where the Crown in the broad sense has failed to engage on this, but we are here and we are listening and you are going to tell us how to approach this” (transcript, day 2, at p. 109). In the reasons that follow, it should be clear that Ontario and Canada must act now to respect their treaty promises to the Anishinaabe, and to help restore the honour of the Crown and the nation-to-nation alliance that the treaties represent. Doing so will require each party, but especially the Crown, to recall the purposes behind the treaty promises. The Robinson Treaties are not merely transactional instruments about the exchange of money for a tract of land. They are living agreements embodying a relationship nurtured over many years before 1850 and requiring ongoing renewal into the future. It is time for the parties to return to the council fire and rekindle the perpetual relationship that the Robinson Treaties envision. Nothing less will demonstrate the Crown’s commitment to reconciliation. . 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".
At paras 14-45 (see the case link above) the court sets out it's histories of the Anishinaabe and the Robinson Treaties, and below [at paras 59-64] a recent partial settlement of these disputes:D. Subsequent Developments
[59] Shortly after this Court granted leave to appeal and cross-appeal in June 2022, Ontario applied to this Court for an interim order staying Stage Three of the trial, which was scheduled to begin just weeks later, until this Court rendered its decision. The Huron and Superior plaintiffs opposed the relief sought and argued that Ontario’s motion should be brought before the case management judge. Sitting as rota judge, I ordered Ontario to bring its motion to stay the hearing of Stage Three of the trial to the case management judge (Order of Jamal J. dated September 26, 2022). Ontario did so. Ontario moved to adjourn the Stage Three trial, then scheduled to begin in mid-January 2023, pending this Court’s decision on the present appeals and cross-appeals. Ontario’s motion was dismissed in late November 2022 and was not appealed further (2022 ONSC 7368).
[60] On June 17, 2023, Canada, Ontario, and the Huron plaintiffs publicly announced that, as a result of negotiations that had been ongoing since April 2022, they had successfully concluded a proposed settlement for past claims under the Robinson-Huron Treaty for $10 billion, based on equal payments of $5 billion from each of Canada and Ontario. The proposed settlement was described in a joint press release as “a major milestone in the ongoing collaborative work to renew the treaty relationship and honour a treaty promise that dates back to 1850” (Crown-Indigenous Relations and Northern Affairs Canada, Robinson Huron Treaty Leadership, Ontario and Canada announce proposed settlement and next steps in Treaty annuities court case, June 17, 2023 (online)).
[61] At the hearing before this Court, Ontario’s counsel provided the following update. The $10 billion settlement among the Huron plaintiffs, Ontario, and Canada deals only with past claims and is not contingent on the result in these appeals. Because of the settlement, the Huron plaintiffs did not participate in Stage Three of the trial (transcript, day 1, at pp. 11-12; transcript, day 2, at p. 103). The Superior plaintiffs participated in Stage Three, claiming $126.285 billion from Canada and Ontario as at 2020. The Stage Three hearing concluded on September 26, 2023, with judgment reserved and expected to be delivered within six months (transcript, day 1, at pp. 1-12; transcript, day 2, at p. 103).
[62] After the hearing before this Court, the Chief Justice issued an order staying Stage Three of the trial pending this Court’s decision (Order of Wagner C.J. dated November 9, 2023).
[63] On December 15, 2023, federal legislation to fund Canada’s $5 billion share of the settlement amount received royal assent (Bill C-60, An Act for granting to His Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2024, 1st Sess., 44th Parl., 2021-22-23, enacted as Appropriation Act No. 4, 2023-24, S.C. 2023, c. 33, Sch. 1). The supplementary estimates document prepared by the federal government in support of Bill C-60 stated that the settlement relates to past annual payments under the 1850 Robinson-Huron Treaty and that “[o]nce the agreement is finalized, funds will be paid to a trust established by the First Nations” (Supplementary Estimates (B), 2023-24 (2023), at p. 1-2).
[64] On February 26, 2024, the settlement was finalized and approved by the Ontario Superior Court, which applauded the “historic agreement” and confirmed that the settlement is “to take effect regardless of the outcome of the appeal before the Supreme Court of Canada” (2024 ONSC 1127, at paras. 10 and 13 (CanLII), per Morawetz C.J.).
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