The Supreme Court of Canada (SCC) has been working to close the reconciliation gap between Indigenous groups covered by historic treaties (those predating the Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313 treaties) and Indigenous groups that have either not ceded their Aboriginal rights and title or have done so in the modern era, where negotiations have occurred between sophisticated parties represented by counsel and other professionals. The provisions of historic treaties generally provided for modest compensation by today’s standards but allowed for the continuation of traditional practices such as hunting, trapping and fishing on lands that were not taken up by the Crown for activities like agriculture, forestry and mining.
The first significant step on this reconciliation path was taken in the 2018 case of Mikisew Cree First Nation v. Canada, 2018 SCC 40 (Mikisew), which held that the Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, duty to consult, established in the context of development on Crown lands subject to claims of unceded indigenous rights and title, applied equally to the Crown’s right to take up lands for development pursuant to historic treaties. The overriding honour of the Crown required it to consult and where reasonable to do so, mitigate impacts that taking up of lands might have on the exercise of treaty rights. This duty to consult Indigenous groups subject to historic treaties required the continuation of the reconciliation process and has resulted in significant advancements in the participation of Indigenous groups in the benefits associated with development occurring on their treaty lands.
The recent SCC decision in Ontario (Attorney General) v. Restoule, 2024 SCC 27 (Restoule), took another step in furthering economic reconciliation with Indigenous groups covered by historic treaties. Restoule dealt with the Robinson Treaties, entered into in 1850 between the Crown and the Anishinaabe of Lake Huron and Lake Superior. Under these treaties, lands were ceded to the Crown in exchange for annual payments in perpetuity, which started at about CA$1.60 per person. The payment provisions featured an “Augmentation Clause” that allowed the annuities to be increased over time based on monies produced from the ceded lands, provided doing so did not cause loss to the Crown. However, any amount paid could not exceed a cap of CA$4.00 per person (reached in 1875) “or such further sum as Her Majesty may be graciously pleased to order.”
The SCC ruled that, properly interpreted, the Augmentation Clause only imposed a discretionary “soft cap” on annuities. As part of the honour of the Crown, a duty was owed to diligently implement the treaties. Under this duty, the Crown had to make good on its treaty promises, which involves a broad, purposive approach to interpretation. Accordingly, if economic conditions permitted the Crown to increase the annuity without incurring a loss, the Crown must exercise its discretion to do so. The Crown breached this duty by failing to consider any annuity increases after 1875.
The amounts claimed in the case are staggering. Before the SCC heard the case, the Huron Anishinaabe settled their historic claim (not including future annuity payments) for CA$10 Billion. The Superior Anishinaabe continued with their claim for CA$246 Billion, which had been through the damages assessment stage at trial before being stayed by the SCC, prior to a decision on damages being rendered.
The SCC issued a declaration that the Crown had not acted honourably in administering annual payments under the treaties and directed the Crown to compensate the Superior Anishinaabe by either arriving at a settlement with them or failing a settlement within six months, the Crown was directed to establish a compensation to be reviewed by the trial court as part of its damages assessment that had been stayed. The SCC directed the trial court to apply the following factors in assessing the reasonableness of the compensation established by the Crown: “(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.”
Restoule represents the latest development in continuing down the path of reconciliation under Canada’s historic treaties. The case significantly closes the economic reconciliation gap between Indigenous groups that ceded their rights and title under historic treaties and those groups covered by modern treaties or that have not yet ceded their rights and title to the Crown.
For more information on this topic, please contact the author, Bernie (Bernard) J. Roth, KC.
