That might sum up the message from the Supreme Court of Canada to the defendant governments of Ontario and Canada in a multi-billion-dollar lawsuit by Anishinaabe First Nations, who ceded by treaty 174 years ago a huge swath of their traditional Northern Ontario territories only to have successive federal and provincial governments “dishonourably” flout that treaty by barely compensating the cash-strapped Indigenous communities while the Crown and big business reaped billions over the decades from the mineral, timber and other resources of the ceded lands.
The Supreme Court’s landmark 9-0 treaty interpretation judgment July 26, 2024, underscores that the honour of the Crown imposes a constitutional “duty of diligent implementation” of legal promises to First Nations and declares as a remedy for breach of the treaty that the Ontario and federal Crowns must within six months of the judgment negotiate “meaningfully and honourably” with the plaintiff group of northern Ontario Anishinaabe First Nations for increased and “honourable” past compensation that the governments owe for “dishonourably” breaching until now the 1850 Robinson-Superior Treaty — failing which the Crown must set the compensation unilaterally.
Importantly, the Crown’s discretion in setting the amount of compensation “is not unfettered,” the court stipulated. Rather the Crown’s discretion must “be exercised, liberally, justly and in accordance with the honour of the Crown,” and its decision is reviewable by the courts, which are empowered to grant remedies, including damages: Ontario (Attorney General) v. Restoule, 2024 SCC 27.
At issue in the case is an annuity clause in both the Robinson-Superior and Robinson-Huron Treaties, by which the Anishinaabe First Nations of the northern shores of Lake Huron and Lake Superior separately agreed to cede their territories in exchange for a perpetual annual payment that would increase over time under certain circumstances. The initial compensation agreed to in 1850 was $1.70 per person under the Robinson-Huron Treaty and $1.60 per person under the Robinson-Superior Treaty. According to an “augmentation” clause, the annuities were to rise 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 about C$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 since then.
The Lake Superior Anishinaabe therefore sued in 2001 for declaratory and compensatory relief relating to the interpretation, implementation and alleged breach of the augmentation clause while the Lake Huron Anishinaabe filed their own claim in 2014.
Last January, a fund representing 21 First Nations of the Robinson-Huron Treaty announced a $10-billion settlement of their past losses under that treaty: $5 billion each from Canada and Ontario.
However, their counsel says the principles set out by the top court in Restoule will be relevant in determining future ongoing compensation, which remains to be negotiated or determined in court
Ontario’s appeal before the Supreme Court of Canada, which was allowed in part, related to ongoing litigation by the respondent First Nations of Lake Superior. The Supreme Court rejected barriers to compensation that the province sought to raise, such as Crown immunity and a statute of limitations defence.
Supreme Court Justice Mahmud Jamal
“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.”
Justice Jamal’s indexed 311-paragraph judgment addresses a host of issues raised by the appellant province on appeal, including the interpretation of historic Aboriginal treaties, the standard of appellate review for interpreting historic treaties (which is correctness), the scope and nature of the concept of the honour of the Crown, as well as whether the Crown owes the plaintiffs any ad hoc or sui generis fiduciary duties in respect of the augmentation clause.
He explained that the honour of the Crown, “a constitutional principle that must guide the interpretation and implementation of the augmentation and the appropriate remedies for the Crown’s breach, is not a cause of action in itself but speaks to how the obligations that attract it must be fulfilled.”
He ruled however that the Crown owes no fiduciary duties to the plaintiffs with respect to the compensation clause in the Robinson treaties; rather the Crown “is subject to a duty to diligently implement or fulfill that promise, and its failure to do so is a breach of treaty.”
Importantly, the “duty of diligent implementation” does not merely impose procedural obligations on the Crown, as was argued by Ontario, but rather “the Crown is required, and indeed was always required, to act in an honourable and timely way to pursue the purpose behind the treaty promise,” Justice Jamal held. “This requires the Crown to pay an amount, subject to review by the courts, to compensate the Superior plaintiffs for its past breach of the augmentation clause, which in this case is a breach of both the duty of diligent implementation and of the treaty itself.”
Justice Jamal said that “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.”
Accordingly, “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.”
Justice Jamal declared:
- 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.
- 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.
- 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.
- 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.
- The Crown dishonourably breached the Robinson Treaties by failing to diligently fulfill the Augmentation Clause.
- 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.
Justice Jamal said that if a negotiated settlement regarding compensation for the Superior plaintiffs’ past losses is not reached, the plaintiffs may seek review before the courts of both the process the Crown followed and the substantive amount it sets as compensation.
“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,” he said. “A reviewing court should allow the Crown, as decision-maker, a degree of deference in relation to its exercise of discretion. 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.”
Justice Jamal set out a non-exhaustive list of factors for a court to consider 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.”
Harley Schachter and Kaitlyn Lewis (right), of Winnipeg’s Duboff Edwards Schachter Law Corp.
“I started this case in 1999 — 25 years” ago, he told Law360 Canada after delivering the good news to his clients in the Supreme Court’s marble Great Hall.
Schachter said key legal takeaways from the judgment include “treaty rights are constitutional rights. Governments are not above the law. The laws of limitations cannot be used to sweep away historic aboriginal and treaty rights claims ... Laws of limitation do not apply in Ontario to treaty and Aboriginal rights claims.”
“I would say that if you actually interpret the subtext of the decision ... you could find that the ‘honour of the crown’ does the work that [the doctrine of] fiduciary duty used to do,” he added. “The Supreme Court of Canada has said that the remedies available for breach of treaty and breach of Aboriginal rights are the full suite of available remedies, and the Crown cannot shield itself.”
David Nahwegahbow, Nahwegahbow Corbiere
It’s “very, very helpful,” he told Law360 Canada. “It really provides some important guideposts for us on the go-forward. It gives us some clear indications about the honor of the Crown and the duty of diligent implementation” and is “very critical of the Crown for having been so delinquent in the last 150 years so yes, it’s going to be very important.”
“It really is ... a very thoughtful, careful, lengthy decision — well reasoned, it seems,” he said. “I haven't really studied it fully yet, but it seems like a real effort by the court to try and find a way in which the interests of both [First Nations and Crown] are balanced, but also acknowledging that the Crown, after 150 years of not abiding by the treaty, needed to be forced to comply. There needed to be some sort of measure of compliance mechanisms.”
Nahwegahbow added that the judgment provides clarity in a number of important ways. “One of the issues has always been that the Crown has always insisted that it's not subject to review and now we know for sure there's an obligation to negotiate,” Nahwegahbow explained. “But there's also an entitlement to ... a range of remedies to be able to go back to the court and ask whether or not what’s offered by the Crown is adequate.”
Jason Madden of Toronto’s Aird and Berlis, who with Alexandra Winterburn represented the Indigenous Bar Association (one of 20 Indigenous interveners), called the case “a victory for the Anishinaabe litigants, but also a powerful precedent for other Indigenous treaty partners across Canada.”
“This is a seminal case from the Supreme Court of Canada on the enduring importance of treaties made with Indigenous peoples to Canada’s constitutional legitimacy and ongoing relationship with its treaty partners,” he said. “The court is also clear that ongoing breaches of treaties require substantive and meaningful remedies from the courts when treaty rights are not respected or diligently implemented, particularly when these promises are outright ignored for generations.”
Reacting to the judgment, Jack Fazzari, press secretary to Ontario attorney general Doug Downey, said by email “as the trial relating to the Robinson-Superior treaty remains before the courts, it would be inappropriate to comment further.”
For its part, the federal government welcomed the top court’s judgment which it said “provides clarity on the treaty promise made in the Robinson-Huron Treaty and the Robinson-Superior Treaty.”
“The Government of Canada did not file any appeals in the Restoule/Whitesand litigation and has sought a negotiated resolution with our treaty partners outside of the courts,” said Jennifer Cooper, a spokesperson for Crown Indigenous Relations and Northern Affairs Canada.
“We believe that the best way to address outstanding issues and achieve reconciliation with Indigenous peoples is through negotiation and dialogue,” Cooper said in her emailed statement. “Negotiated agreements help rebuild trust, address past wrongs, and honour the treaty relationship.”
Cooper said the court’s ruling does not impact the final $10-billion settlement on past treaty annuities between the 21 Robinson-Huron Treaty First Nations, Ontario, and Canada in the Restoule litigation.
“As our discussions are confidential, we are not in a position to comment further at this time,” she said. “Updates will be provided to interested parties as key milestones are reached in the process.”
She added, “we also welcome the Supreme Court of Canada’s direction with regard to the Robinson-Superior Treaty and the Whitesand litigation, to work with the Robinson-Superior Treaty First Nations and the government of Ontario over the next six months. We are assessing the court’s decision and its direction, and we will take the appropriate next steps with the other parties. We are ready to move forward with the Robinson-Superior Treaty First Nations and the government of Ontario to try to find the common ground for reaching a negotiated agreement for past losses on treaty annuities. We look forward to having those discussions directly with the First Nations and Ontario and to advancing our joint work together at the negotiating table.”
Photo of Justice Mahmud Jamal: SCC Collection
Photo of Harley Schachter and Kaitlyn Lewis: Cristin Schmitz
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