Supreme Court of Canada declares Canada a ‘Historically dishonourable treaty partner’
Decision lays out better path forward for Robinson Huron and Superior Treaty negotiations
By Catherine Murton Stoehr
OTTAWA – In a series of unanimous findings released on July 26 that left the Robinson Huron Treaty litigation $10 billion settlement unchanged, the Supreme Court of Canada rejected Ontario’s claim that they are not liable to remedy past underpayments to the Robinson Superior communities, gave direction for how that amount should be determined for the past and in the future, and identified honourable negotiations between the Anishinabek, Ontario, and Canada as the preferred mechanism for determining augmentation of annuity payments.
The Robinson Huron and Superior Treaties include an augmentation clause requiring the Crown to increase annuity payments from time to time as their own profits from the territory increase. This has not happened since 1875. According to the July 26 decision, the courts will only invoke their authority to override the Crown’s discretion to determine the annuity amount after a process of negotiation between the affected parties, noting that negotiation is “in and of itself important to effectively repairing the treaty relationship damaged by the Crown’s failure to review and increase the annuity”. Respectful negotiation better represents the nation-to-nation relationship and can further reconciliation.
The most immediate consequence of this finding is that the Supreme Court of Canada has instructed Ontario and Canada and the Robinson Superior Anishinabek to return to negotiations to determine how much money Ontario and Canada owe the Robinson Superior communities for past underpayments. The parties have six months to come to an agreement, failing which the Court has ordered the Crown to effectively “make them an offer.” If the offer is not acceptable to the Robinson Superior First Nations, they can then appeal it to the court which reserves the authority, in that case, to order the Crown to reconsider its offer or simply set an amount.
The Robinson Huron Anishinabek have already been through such a negotiation process and agreed on the sum of $10 billion with Ontario and Canada. The Robinson Superior First Nations are currently seeking $126 billion to compensate for past underpayments in a court process that has been further suspended by today’s decision.
That said, the Supreme Court judgment, written by the Honourable Justice Mahmud Jamal on July 26, was blunt and withering in its condemnation of the Crown’s failure to honour the Robinson Huron and Superior Treaties noting “for almost 150 years, the annuities have been frozen at a shocking $4 per person, after the first and only increase was made in 1875. Today, in what can only be described as a mockery of the Crown’s treaty promise to the Anishinaabe of the Upper Great Lakes, the annuities are distributed to individual treaty beneficiaries by giving them $4 each.”
Elsewhere in the judgment, Justice Jamal tersely rejected Ontario’s claim to sole authority to determine annuity increases saying, “For well over a century, the Crown has shown itself to be a patently unreliable and untrustworthy treaty partner in relation to the augmentation promise. It has lost the moral authority to simply say ‘trust us’.”
Today’s judgment also sets new precedents for Canadian Treaty interpretation, clarifying the role of regular trial courts and appeal courts in determining treaty rights and obligations. The Robinson Huron and Superior litigation featured months of testimony from Elders, community knowledge holders, and historians, all working to give the court an understanding of the common intention that the Anishinabek and British came to that was then expressed in the Treaty. Justice Jamal called it a “robust and highly involved trial process.” Justice Jamal echoed that the Ontario appeals court interference by a higher court in a process like that would “undervalue” the trial judge’s process and would suggest that “the involvement of the Treaty partners, particularly the Indigenous signatories, did not make the trial judge better situated to decide the case.” Or put another way, the time that First Nation Elders and citizens took the time to tell the first judge the whole story should be respected.
The finding itself unintentionally underscores the challenge that voluminous unknown history poses to the higher courts by wrongly dating the Covenant Chain alliance between the Great Lakes Anishinabek and the British to the seventeenth century, more than half a century before it was first partially established at the Treaty of Easton.
Justice Jamal also echoed Justice Hennessy’s finding that “…because treaty promises are analogous to constitutional provisions, they must be interpreted in a generous and liberal manner,” noting, “treaties are nation-to-nation agreements that must be interpreted in accordance with the constitutional principle of the honour of the Crown. This transforms the interpretive exercise from a simple determination of the rights and obligations between private parties into an exercise of constitutional interpretation.” While lower courts are best placed to determine the historical facts of any given treaty, the National significance of treaties demands that appeals courts take precedence in matters of interpretation.
As to how the Robinson Huron and Superior treaty augmentation clause should be interpreted in the future, the Supreme Court charted its own course in some ways differing from both the trial and Ontario Appeals court’s findings. Despite confusing language in the treaty text, the Supreme Court has ruled that the Crown is obliged to pay a lump sum to the “Chiefs and their Tribes” and that the treaty does not have a separate provision for individual payments. Such a provision would have been unprecedented at the time. Canada’s long-standing practice of making individual payments to Robinson Huron and Superior annuitants may have given rise to such a misinterpretation. Further, it was determined that the Crown does have some discretion about when to increase the annuity and what factors should be considered in such an increase; however, as with the current dispute between the Robinson Superior communities and the Crown, that discretion is limited, and the courts have the authority to overrule the Crown if its proposed payments do not reflect a liberal and just interpretation of the Treaty.
The court rejected the Robinson and Huron community’s argument that the Crown is required to interpret the treaty first and foremost for the benefit of the Anishinabek (exercise fiduciary duty). However, the court said that the concept of the Honour of the Crown must guide annuity decisions and in another new finding, said that the augmentation clause requires that the Crown be diligent in its reviewing of the annuity, which would avoid them putting it off for another 150 years.
In response to the judgment, Robinson Huron Treaty Litigation spokesperson Angus Toulouse called on Prime Minister Trudeau and Premier Ford to honour their commitment “to fulfill the treaty promises of the Crown relating to the annuities augmentation clause for the future.”