On July 26, 2024, the Supreme Court of Canada (SCC) released its decision in Ontario (Attorney General) v Restoule. The SCC unanimously held that Canada and Ontario had breached their Treaty promises to the Anishinaabe of the upper Great Lakes by failing to increase the annuity payments promised under the Robinson Treaties (see MLT Aikins earlier blog for an overview of this case).
Background
The Anishinaabe of the upper Great Lakes signed two Treaties with the Crown: the Robinson-Huron Treaty and the Robinson-Superior Treaty. Both Treaties contain a promise from the Crown to pay annuities to the Anishinaabe. The Treaties contain an "Augmentation Clause" requiring the Crown to increase or decrease the annuities over time as the resource revenues of the land increased or decreased, subject to two conditions:
- The annuities would only be increased if the Crown could do so without incurring a loss.
- The total annuity would not exceed $4 a year per person or "such further sum as Her Majesty may be graciously pleased to order."
In 1875, the annuities were increased for the first and last time to $4 per person. The Crown claimed this amount was the maximum required under the Treaties.
The Anishinaabe challenged this interpretation of the Treaties, claiming that there was no maximum cap on the annuities. They claimed the Crown promised to share resource revenues with the Anishinaabe and the Crown was obligated to increase the annuities if economic conditions were met.
The SCC had to decide the following issues:
- What principles should be applied when interpreting a historic Treaty?
- What is the proper interpretation of the Augmentation Clauses?
- What are the Crown's duties related to the Augmentation Clauses?
The SCC also considered and concluded that the claims were not barred by Ontario's Limitations Act.
Interpretation of Historic Treaties
The SCC said that interpreting a historic Treaty is a two-step process: first, look at the words of the Treaty provision and the range of possible interpretations, and second, consider those interpretations against the historical and cultural background of the Treaty.
The SCC reviewed four features of historic Treaty interpretation:
- Historic Treaties must be interpreted in light of their unique status as agreements between the Crown and Indigenous Peoples aimed at advancing reconciliation.
- Historic Treaties must be interpreted in accordance with the honour of the Crown.
- Given the ambiguities, generalities, and gaps in historic Treaties, they must be interpreted and filled in by principles such as the honour of the Crown to arrive at a fair outcome.
- Historic treaties must be interpreted in accordance with the legal principles of Treaty interpretation established in the SCC's earlier decision in R v Marshall, including considering the words of a historic Treaty in the context of the purpose of the Treaty as a whole.
Interpretation of the Augmentation Clause
The SCC applied these features of interpretation to the Augmentation Clauses. The SCC landed on an interpretation of the Augmentation Clauses that required "a perpetual annuity payable to the 'Chiefs and their Tribes' that could be increased if an economic condition was met" – that is, if the annuity payments could be increased without the Crown incurring a loss. The increase to $4 per person was mandatory while future increases above $4 per person are discretionary. When the economic circumstances warrant, the Crown must exercise its discretion to determine whether to increase the annuity and, if so, by how much. Importantly, the Crown cannot simply refuse to consider increasing the annuities.
In coming to this interpretation, the SCC considered that while negotiating the Robinson Treaties, Upper Canada was in a bad financial situation which suggested that the Crown would not have intended or agreed to an uncapped, mandatorily increasing annuity in perpetuity.
Duties of the Crown
The Anishinaabe also argued that the Crown's failure to increase the annuities from time to time was a breach of the Crown's fiduciary duty and the Crown's duty to diligently fulfill Treaty promises.
The SCC found that the Crown did not owe a fiduciary duty to the Anishinaabe in relation to the Augmentation Clauses but accepted that the Crown had failed to diligently fulfill its Treaty promises.
The duty of diligent fulfillment holds the Crown responsible for its Treaty promises. This duty requires the Crown to interpret, implement, and fulfill its Treaty promises in a way that maintains the honour of the Crown. In this case, the Crown's failure to even turn its mind to increasing the annuities had brought dishonour to the Crown and made a "mockery" of Treaty promise.
Key takeaways
The SCC's reasons provide some clarity on the Crown's obligations regarding Treaty promises. The Crown must interpret and fulfill Treaty promises consistently with the requirements of the honour of the Crown. This includes interpreting Treaties purposively and with integrity. The Crown may not be able to rely on the strict wording of a historic Treaty provision if it is inconsistent with the historic context and purpose of the Treaty. The Crown must also diligently interpret, implement, and fulfill Treaty promises, meaning it cannot leave them outstanding for years.
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