|
Justiciability - Indigenous. 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".
The following passages reflect the unwillingness of the courts to address white-indigenous relations in anything like a typical legal mode, rather they keep it in a unique political-legal limbo that will not offend the overwhelmingly white status quo but still metes out some minor degree of benefit (though desperately long delayed, and still further delayed into the future) to the indigenous litigants:(4) A Declaration Is Appropriate, but Insufficient
[283] While a declaration is appropriate, I am of the view that a bare declaration, without more, is insufficient given the egregious and longstanding nature of the breaches at issue in these appeals. In these circumstances, a simple declaration would not adequately repair the treaty relationship or restore the honour of the Crown. It would not sufficiently vindicate the treaty rights or meaningfully advance reconciliation.
[284] The treaties concluded between the parties were fundamentally alliances of equals founded on the principles of mutual respect, mutual responsibility, reciprocity, and renewal (Stage One reasons, at para. 423). In requiring the Crown to periodically revisit the annuity and consider increasing the amount, the Augmentation Clause embodies the parties’ desire for a continually renewing bond that would keep them in a relationship with one another in perpetuity. Yet today, well over a century has passed since the Crown has turned its mind to that promise, and by extension to the renewal of the relationship itself. Ontario expresses concern that any remedy beyond a pure declaration would “drive the parties into an adversarial relationship” (A.F., at para. 111). The Superior plaintiffs respond that it is not the requested remedy that has done this, but rather the Crown’s “abject failure” for almost 150 years to honour sacred treaty rights (R.F., at para. 113). I agree with the Superior plaintiffs. The Crown cannot reasonably have believed that giving its treaty partners $4 each annually since 1875 was in any way honourable.
[285] What is more, since the Robinson Treaties were concluded in 1850, the Crown has derived enormous economic benefit from the ceded territories through mining and other activities. Meanwhile, as the Court of Appeal noted, the Anishinaabe treaty partners have experienced many deprivations in their communities, such as “substandard housing and boil water advisories” (para. 322). One treaty partner has thrived, while the other has often experienced immense hardship.
[286] Before leaving this point, it is appropriate to recall that the trial judge found that the Robinson Treaties were motivated largely by the principles of kinship and mutual interdependence, as reflected in the Covenant Chain. This enduring alliance has been depicted using the metaphor of a ship tied to a tree with a metal chain: “The metaphor associated with the chain was that if one party was in need, they only had to ‘tug on the rope’ to give the signal that something was amiss, and ‘all would be restored’” (Stage One reasons, at para. 65). The Anishinaabe treaty partners have been tugging on the rope for some 150 years now, but the Crown has ignored their calls. The Crown has severely undermined both the spirit and substance of the Robinson Treaties.
[287] Because of this, and as the trial judge observed, “after 168 years of no action on the part of the Crown, the court cannot simply accept the Crown’s acknowledgment of their duty of honour and permit the Crown to carry on without further direction” (Stage One reasons, at para. 492). I agree with the Huron plaintiffs that a mere declaration would risk forcing them “to continue to rely on a historically dishonourable Treaty partner to take steps to restore the Treaty relationship” (R.F., at para. 117). This would be deeply unsatisfactory and would risk leaving the Anishinaabe treaty partners with an empty shell of a promise once again. I would therefore provide additional direction 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 past breaches.
(5) Further Direction Is Needed
[288] As I have said, I am of the view that the full range of remedies, including damages, is available for breach of treaty claims, just as they are for breaches of other constitutional rights. Even so, I am not convinced that proceeding immediately to a judicially calculated damages award for past breaches in Stage Three is appropriate at this time, given the nature of the treaty promise, the proper role of the courts, and the need to effectively repair the treaty relationship and restore the honour of the Crown.
(a) The Nature of the Treaty Promise
[289] I agree with the Superior plaintiffs that after more than a century of Crown neglect, they have the right to a remedy. I have concluded that the Crown must increase the annuity beyond $4 per person regarding the past, since it would be patently dishonourable not to do so. However, the fact of the matter is that 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 increase the annuities and, if so, by how much.
[290] The Crown must exercise this discretion liberally and justly, consistently with the honour of the Crown and the language of the treaty itself, but it retains the authority and, in the present circumstances, has the obligation to set a figure that it considers will meet those requirements. 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 of money to redress the harms occasioned by its neglect. Absent a settlement, the Crown will be required to explain to the Superior plaintiffs and the court how it reached its determination and why. This would permit the court to pay careful attention to the manner in which the Crown exercised its discretion, having regard to both the amount determined and the process by which it arrived at that amount, when assessing whether the Crown’s determination is honourable.
[291] I hasten to add that this does not mean that the Crown should never be judicially compelled to pay a certain sum of money as determined by a court. Under some circumstances, a court may decide to intervene and set the amount to be paid by the Crown. For example, a failure by the Crown to pay an honourable amount in all the circumstances should not limit a court to quashing the amount set by the Crown and remanding the issue to the Crown for redetermination. In such a case, a court may need to make a determination that the Crown refuses to make, or that it makes dishonourably. The Crown cannot be allowed to continue to undermine the very object and purpose of the treaty promise.
[292] However, now that this Court has finally determined the Crown’s obligations under the Augmentation Clause, and given Ontario’s position before this Court that “we are listening and you are going to tell us how to approach this”, it can be expected that the Crown will diligently honour its longstanding treaty promise to the Anishinaabe. In my view, given the nature of the treaty promise at issue, the Crown must be afforded a circumscribed window within which to exercise its discretion, either through honourable negotiation or by determination of the Crown if necessary. This will create space for the parties to repair and renew their treaty relationship. As this Court recognized in Haida Nation, “[w]hile Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests” (para. 14).
(b) The Proper Role of the Courts
[293] Directing the Crown to exercise its discretion forthwith is also a measured approach that appropriately respects the proper role of the courts and the separation of powers. As Professor Kent Roach has explained in the context of Aboriginal rights:... courts that enforce Aboriginal rights must also consider a range of other factors and competing interests. Courts should provide remedies that respect institutional roles including the limits on the judiciary. In many cases, courts are hopeful that issues can be resolved out of court by a process of consultation and negotiation. This approach is particularly attractive in the Aboriginal rights context because of its potential to allow Aboriginal nations to exercise some degree of self-determination and because of the complexity of the issues and the broad range of reasonable solutions and forms of reconciliation. At the same time, Aboriginal rights may ultimately have to be enforced by the courts, albeit in a way that respects institutional roles and is fair to all those affected. [§ 15:2] [294] Professor Roach’s comments are instructive in relation to treaty rights as well. As in the Charter context, it is true here that “an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy. . . . [A] court ordering a Charter remedy must strive to respect the relationships with and separation of functions among the legislature, the executive and the judiciary” (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 56). 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. I stress that courts are not incompetent or unable to entertain these considerations when necessary. Indeed, I acknowledge the jurisdiction of the courts to order compensation at Stage Three if appropriate to do so. However, I also recognize that courts are generally not well equipped to make polycentric choices or to “evaluate the wide-ranging consequences that flow from policy implementation” (Doucet-Boudreau, at para. 120, per LeBel and Deschamps JJ., dissenting; see generally Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, at pp. 723-24). Accordingly, courts should exercise considerable caution before intervening in such circumstances.
[295] In this regard, I am mindful that in Stage Three of this trial, argued and taken under reserve in September 2023, the Superior plaintiffs claimed damages totalling approximately $126 billion to compensate them for the Crown’s past breaches of the Augmentation Clause. This figure is equivalent to approximately two-thirds of the total reported annual revenue of the province of Ontario, from all sources, in the 2022-23 fiscal year (Minister of Finance, 2023 Ontario Economic Outlook and Fiscal Review — Building a Strong Ontario Together, Background Papers (2023)). I hasten to emphasize that the magnitude of this figure in no way drives the remedy in this decision. Naturally, where the Crown has defaulted on its payment obligations for almost 150 years, the amount due will be substantial. The Anishinaabe signatories cannot now be short-changed by the Crown’s sticker shock, which is solely the result of the Crown’s own dishonourable neglect of its sacred treaty promises.
[296] At the same time, I have concluded that the Augmentation Clause constitutes a promise on the part of the Crown to exercise its discretion as to potential increases to the annuities beyond $4 per person where it can do so without incurring loss. This discretion must be exercised honourably, but also in accordance with Her Majesty’s desire “to deal liberally and justly with all Her subjects” — to do justice to the Anishinaabe treaty partners and Her Majesty’s other “subjects”. Accordingly, in exercising its discretion, the Crown will have to engage in complex polycentric decision making that weighs the solemnity of its obligations to the Anishinaabe and 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 the expertise of the courts.
[297] These principles concerning the proper role of the courts dovetail with the idea that “[r]econciliation often demands judicial forbearance. Courts should generally leave space for the parties to govern together and work out their differences” (First Nation of Nacho Nyak Dun, at para. 4). As Lamer C.J. wrote in Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, “it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve . . . a basic purpose of s. 35(1) — ‘the reconciliation of the pre-existence of [A]boriginal societies with the sovereignty of the Crown’” (para. 186; see also F. Hoehn, “The Duty to Negotiate and the Ethos of Reconciliation” (2020), 83 Sask. L. Rev. 1). As this Court has recognized in the duty to consult context, “[t]rue reconciliation is rarely, if ever, achieved in courtrooms” (Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 24; see also Mikisew Cree 2018, at para. 22).
[298] Even so, as my colleague Martin J. wisely observed during Ontario’s oral submissions before this Court, accountability most certainly does take place in a courtroom (transcript, day 1, at p. 9). Indeed, “judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance” (First Nation of Nacho Nyak Dun, at para. 34). As in the present case, litigation may sometimes be the only way to bring an intransigent party to the negotiating table with a view to reaching a settlement and advancing reconciliation.
[299] 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 the business of the courts to review exercises of Crown discretion for constitutional compliance — to ensure that the Crown exercises its discretion in accordance with its treaty obligations and the constitutional principle of the honour of the Crown. It is appropriate in this case for this Court to order the government to repair the breach of its constitutional obligations, while leaving it up to the executive branch to determine the best means of doing so (see generally Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 96; Ardoch Algonquin First Nation v. Canada (Attorney General), 2003 FCA 473, [2004] 2 F.C.R. 108, at paras. 46-47, per Rothstein J.A. (as he then was)). While not a perfect analogy, a direction to this effect bears a family resemblance to an order in the nature of mandamus, insofar as it orders that discretion be exercised, without specifying exactly how (see D. J. M. Brown, J. M. Evans and A. J. Beatty, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at § 1:24; British Columbia (Attorney General) v. Canada (Attorney General), 1994 CanLII 81 (SCC), [1994] 2 S.C.R. 41, at pp. 127-28; Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (C.A.), at pp. 767-68, aff’d 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100; Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, at para. 41).
(c) Renewing the Treaty Relationship and Restoring the Crown’s Honour
[300] I am also guided by the fact that the Robinson Treaties were not only about securing land in exchange for a monetary annuity. As the trial judge found, “[f]rom the Anishinaabe perspective, the central goal of the treaty was to renew their relationship with the Crown” (Stage One reasons, at para. 412 (emphasis added)). For the Anishinaabe, “the Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances” (para. 423). The Huron plaintiffs say this best: “What the Treaty promises is . . . an ‘ongoing relationship’ with procedural and substantive aspects. The Crown cannot fulfill its duty by paying an arbitrary sum of money without engaging its Treaty partner” (R.F., at para. 101 (emphasis added)). The Superior plaintiffs would be deprived of the relational aspect of the treaty if Stage Three of this litigation were to proceed as currently conceived. Accordingly, even though the Crown now concedes that it has breached the Augmentation Clause, Stage Three should not proceed directly to a traditional damages calculation.
[301] Of course, some may point out that the Crown has had almost 150 years to exercise its discretion and that, because of its failure to do so, compensation should now be available to the Superior plaintiffs in Stage Three immediately. Given the long history of this litigation and the dishonourable nature of the Crown’s breach of treaty, I am sympathetic to this view. Yet it bears repeating that the Augmentation Clause is not a promise to pay a certain sum of money. It is a promise by the Crown to consider increases beyond $4 and, where appropriate, to exercise its discretion to increase the annuities. At this stage, a judicially calculated damages award would remove from the treaty implementation any exercise of Crown discretion and engagement between treaty partners — the very essence of the treaty promise respecting increases beyond $4. It would also fail to effectively renew the treaty relationship and restore the honour of the Crown.
[302] In my view, then, a court-calculated compensation award for past breaches in relation to the Superior plaintiffs is not yet an appropriate recourse. Instead, I would direct a narrow, time-bound window for negotiation, after which the Crown is (failing a settlement) required to exercise its discretion honourably in a manner consistent with these reasons and determine an amount of compensation. Such a remedy 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. This limited timeline for negotiation strikes a delicate balance between ensuring the Superior plaintiffs receive compensation without extensive delay and encouraging real restoration of the treaty relationship.
[303] Although I recognize that the augmentation promise does not expressly require the parties to negotiate and agree on an annuity increase, it is undeniable that negotiation and agreement outside the courts have better potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown. After all, historic treaties represent the “establishment of a relationship of trust and mutual assistance” between Indigenous peoples and the Crown, but the details of that relationship “must be the object of permanent negotiations, in view of fleshing out the general principles governing the relations between the two peoples” (S. Grammond, Terms of Coexistence: Indigenous Peoples and Canadian Law (2013), at p. 286).
[304] Because of the considerations discussed above, I would declare the following:1. Under the Augmentation Clause of the Robinson Treaties, the Crown has a duty to consider, from time to time, whether it can increase the annuities without incurring loss.
2. If the Crown can increase the annuities without incurring loss, it must exercise its discretion as to whether to increase the annuities and, if so, by how much.
3. In carrying out these duties and in exercising its discretion, the Crown must act in a manner consistent with the honour of the Crown, including the duty of diligent implementation.
4. The Crown’s discretion must be exercised diligently, honourably, liberally, and justly. Its discretion is not unfettered and is subject to review by the courts.
5. The Crown dishonourably breached the Robinson Treaties by failing to diligently fulfill the Augmentation Clause.
6. The Crown is obliged to determine an amount of honourable compensation to the Superior plaintiffs for amounts owed under the annuities for the period between 1875 and the present. [305] 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 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, within six months of the release of these reasons, to exercise its discretion and determine an amount to compensate for past breaches. Given that the Superior plaintiffs have now been waiting almost a century and a half for their treaty entitlement, the amount to be paid would not be stayed pending any potential review by the courts, and should be paid to the Superior plaintiffs within a reasonable period of time sufficient to allow for the necessary legislative approvals.
[306] To allow for the parties to take steps aimed at reconciliation and repairing the treaty relationship, I would also order that the stay imposed in respect of the Stage Three proceedings continue for an additional six months from the release of these reasons. If the Superior plaintiffs desire additional time to arrive at an honourable settlement with the Crown, it would be open to them to seek a further extension of the stay in the trial court. Given the long history of this litigation and the Crown’s dishonourable conduct, it will not be open to the Crown to seek such an extension if opposed by the Superior plaintiffs. If a further extension is granted, the Crown will have until the expiry of that extension to come to a negotiated agreement or to determine an amount of compensation.
[307] If a negotiated settlement regarding the past is not reached, the Superior plaintiffs may seek review before the courts of both the process the Crown has undertaken and the substantive amount it has determined as compensation. If Stage Three proceeds, it must of course be modified in accordance with these reasons.
[308] If the Crown has exercised its discretion liberally, justly, and honourably in determining compensation in respect of the past breaches, then the courts should not intervene. A reviewing court should allow the Crown, as decision-maker, a degree of deference in relation to its exercise of discretion (see Sharpe, at p. 221-22). In assessing the Crown’s determination, the court must consider the Crown’s submissions on how it reached its determination, and why, bearing in mind the Crown’s expertise in making complex polycentric decisions and recognizing that the exercise of discretion may permit a range of honourable results. The court should focus on the justification of the Crown’s determination, having regard to the honour of the Crown.
[309] Although this is by no means an exhaustive list, the court should consider the following factors when reviewing the amount that the Crown sets: (a) the nature and severity of the Crown’s past breaches, including the Crown’s neglect of its duties for close to a century and a half; (b) the number of Superior Anishinaabe and their needs; (c) the benefits the Crown has received from the ceded territories and its expenses over time; (d) the wider needs of other Indigenous populations and the non-Indigenous populations of Ontario and Canada; and (e) 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.
[310] Given these directions, it should be apparent that Stage Three will not begin as an open-ended judicial assessment or quantification of damages for past breaches. Rather, Stage Three, if required, will begin as a review of the process in which the Crown has engaged and the substantive amount the Crown has determined as compensation to the Superior plaintiffs. However, if the court finds that the Crown’s process or determination was not honourable, it 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, lest the Crown continue to undermine the very object and purpose of the treaty promise. Although Stage Three has proceeded on the basis of an incorrect interpretation of the Robinson Treaties, it would be open to the parties to rely on some of the evidence already adduced before the trial judge to inform the court’s review of the Crown’s exercise of discretion.
|
