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| Rob Louie |
The details and ratio decidendi in Ontario (Attorney General) v. Restoule, 2024 SCC 27, are being regurgitated by legal, political and media commentators alike. Indigenous legal conferences, workshops and opinions will ensue, which is typical for these types of precedent-setting cases.
On July 26, 2024, the Supreme Court of Canada held that the Crown breached its duty to diligently fulfill the Augmentation Clause under the Robinson Treaties; thus, the Huron and Superior plaintiffs are now entitled to a remedy. What is being missed, however, is the impact this case will have on the ground with the average treaty beneficiary of the Anishinaabe of Lake Huron and Lake Superior.
To recap, 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 British pounds under the Robinson-Huron Treaty and 500 British pounds 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 British pound (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 court ruled that 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. The court went on to say that 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. Also, 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.
The court concluded by saying that if a financial settlement cannot be mutually agreed upon within six months, 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, can be subject to review by the courts.
The Band Members Alliance and Advocacy Association of Canada (“BMAAAC”) has been receiving calls for help from members of the Robinson Treaties with some of its members residing in Michigan state. Calls for 100 per cent per capita payout from the treaty annuity are common. Allegations of an inadequate process for the ratification vote, or the chief and council going full steam ahead without any consultation with its members regarding their financial or economic disposition, are also common to hear. Other questions that appear to have gone unanswered hitherto are the amount paid into this case and to whom it was paid. There are also challenges from those considered “annuity” band members that claim those viewed as “non-annuity” members should not be entitled to any potential per capita payment, yet both are under the auspices of the same chief and council.
These calls for help are re-echoed in other prairie First Nations receiving similar types of financial settlements. The latest such case in which BMAAAC is helping band members get access to justice is at Saskatchewan’s Thunderchild First Nation, Notice of Application T-819-24, where claims of wrongdoing by its chief and council include unilaterally fixing low per capita distributions, taking a loan against the beneficiaries’ settlement funds and authorizing future borrowing in respect of the settlement funds and doing so without broad community consensus.
To date, there are only a handful of cases relating to the fiduciary duty of the chief and council vis-à-vis its membership and even fewer cases when pecuniary interests of a chief and/or band council are proven. Unfortunately, claims of a breach of fiduciary duty committed by the chief and council typically need the co-operation of a band’s accounting department and then any legal action to hold the elected officials accountable invariably falls to the band members, most of whom lack resources, expertise and money. For band members questioning the integrity of their elected officials, like those under the Robinson‐Huron Treaty of 1850, it becomes a classic case of “catch me if you can.”
The key takeaway that underpins this case is the Supreme Court emphasized the importance of renewing the treaty relationship, advancing reconciliation and restoring the honour of the Crown. From an Indigenous beneficiary’s perspective, this case is outward-looking not inward-looking. In other words, it is about how the Crown and Indigenous leadership need to work together. Yet, this country’s top court also had the opportunity, at the very least, through obiter dicta to encourage Indigenous leadership to work on its relationship with their membership, inculcate the importance of having internal reconciliation and how there is a need to act honourably with membership, especially considering a windfall multi-billion-dollar settlement.
Unfortunately, this opportunity was missed in this landmark court case.
For some beneficiaries, they will be left looking askance at their leadership’s control over the billions of dollars while others will wrap these same leaders in a Pendleton blanket for a job well done.
Rob Louie is a constitutional scholar specializing in constitutional law and president of the Band Members Alliance and Advocacy Association of Canada.
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