Indigenous Perspective on Treaty Adopted by Ontario Court of Appeal

In Restoule v Canada (Attorney General), a majority of the Ontario Court of Appeal upheld a landmark decision finding that the Crown was obliged to increase annuity payments to signatories of the Robinson Treaties last week.

In the 300-page decision, the majority paid special attention to Indigenous perspectives and legal systems when interpreting the Treaty. Additionally, the decision clarifies two important and related legal issues: the honour of the Crown and the Crown’s fiduciary duty to Aboriginal peoples. The Court of Appeal found that the honour of the Crown required increased annuity payments, but that the Treaty’s annuity payments did not give rise to a fiduciary duty owed by the Crown.

The amount of that increase in annuity payments will be determined at the third stage of trial.

The Robinson Treaties

In 1850, William Benjamin Robinson met with groups of Anishinaabe of the upper Great lakes at Sault Ste. Marie (known to the Anishinaabe as Bawaating) and Garden River. At the time, the Crown was in “a dire financial situation,” but was nonetheless obligated to receive the consent of the Anishinaabe to access the wealth of the region.

Like many 19th century Treaties, the Robinson Treaties included a promise to pay annuities to the Anishinaabe signatories. This amount was initially set at £600 for the Robinson-Huron Treaty and £500 for the Robinson-Superior Treaty, or approximately $1.70 and $1.60 per person, respectively. Unlike many other Treaties, the Robinson Treaties include an augmentation clause requiring the annuity to “be augmented from time to time” should the territory covered by the Treaty produce a sufficient income for the Crown, such that the Crown would not suffer a loss by increasing the annuities.

In 1875, the annuity increased to $4 per person. It has not increased since.

The Court of Appeal on Treaty Interpretation

The trial judge found that the Crown had an obligation to increase the Robinson Treaty annuities so as to share the revenue generated from the land with the Anishinaabe and the Court could intervene and award damages should the Crown fail to increase the annuities. The Court of Appeal agreed with this finding.

The Majority began its analysis of the Treaty promises by stating that “[a] court must attend to both the written text of a [T]reaty and the evidence about the context in which it was negotiated,” including  “giving due weight” to the Indigenous perspective on the Treaty. The controlling question described by the Majority is “what is required to maintain the honour of the Crown and to effect reconciliation.”

To this end, the Majority examined the view of the Anishinaabe on numerous aspects of the Treaty and accepted the trial judge’s conclusion that the Anishinaabe viewed Treaties not as one-time transactions, but as “the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances.” This finding informed the trial judge’s conclusion that the Treaties contained a promise to share revenues. The Court of Appeal endorsed this interpretation as “grammatically and contextually correct.”

When deciding that the Robinson Treaties did not grant unfettered discretion to the Crown to set the amount of the annuity payments if they were to exceed the $4 per person, the Majority endorsed the trial judge’s reliance on the Anishinaabe view of the issue. The Court of Appeal accepted that the Anishinaabe would not have understood sole or unfettered discretion in a leader because Elder evidence indicated that the concept of a leader choosing to act arbitrarily without regard for the needs of others would have been inconsistent with Anishinaabe conceptions of leadership.

Chief Justice Strathy and Justice Brown dissented, insisting  that interpretation of a Treaty must begin with an examination of the text of the Treaty itself. In the dissenting judges’ view, only after arriving at a preliminary understanding of the Treaty based on its written text, should a court consider other factors such as the perspectives of the Anishinaabe. According to the dissent, factors external to the Treaty text cannot result in otherwise clear words becoming ambiguous.

The Honour of the Crown, Fiduciary Duties and Limitations Defences

The proper interpretation of the Treaty was only one of many issues in the case.

The unanimous Court held that the honour of the Crown was engaged. In short, the principle of the honour of the Crown requires Provincial and Federal Governments to act honourably in their dealings with Indigenous peoples. The majority of the Court concluded that the honour of the Crown required the Crown to increase annuity payments as part of its duty to diligently implement the Treaties. The dissent stated that the honour of the Crown required, as a minimum, for the Crown to “turn its mind” to considering increasing the annuity payments.

The unanimous Court, in a decision written by Justice Hourigan, also held that the trial judge had erred in finding that the Crown owed a fiduciary duty to the Anishinaabe signatories. The trial judge concluded that the Crown owed an “ad hoc” fiduciary duty. An ad hoc fiduciary duty arises when there is: “(1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiaries; (2) a defined class of beneficiaries vulnerable to the fiduciary’s control; and (3) a legal or substantial practical interest of the beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.”

Justice Hourigan concluded such an ad hoc fiduciary duty would involve placing duties on the Crown that were not contemplated by the trial judge. Justice Hourigan observed that such a duty would require the Crown to give all net resource revenues to the Anishinaabe signatories. This would not be the sharing relationship that the trial judge had previously found the Treaty created. Without sufficient reasons explaining how the fiduciary duty arose and how this apparent conflict could be resolved, the trial judge erred in finding a fiduciary duty. Justice Hourigan further found that a fiduciary duty could not exist because it would place the Crown in a conflict of interest in its administration of a large part of Ontario.

Justice Hourigan also considered the possibility of a sui generis fiduciary duty. This is a fiduciary duty that less strict than an ad hoc duty and exists when the Crown has discretionary control over an Aboriginal interest. Justice Hourigan held that rights based in the Robinson Treaties were not a type of Aboriginal interest which can give rise to a sui generis fiduciary duty.

Of further importance, the unanimous Court of Appeal held that the claim for breach of Treaty was not barred by limitation periods. While Justice Hourigan observed that the 2002 Limitation Act in Ontario does reference Treaties specifically, he concluded that Treaties did not fall in any of the specifically mentioned limitation periods in the previous legislation. Therefore, no limitation period applied.

Implications for Other Interpreting Treaties

While the Robinson Treaties are unique in some aspects, the principles outlined by the Ontario Court of Appeal may have far reaching effects. The growing trend for courts to give serious weight to the perspectives of Indigenous people may impact many ongoing legal disputes. As courts begin to appreciate the understanding of Treaties from the perspective of their Indigenous adherents, the law on Treaties may shift to be more consistent with those perspectives.

The dispute over the Robinson Treaties and their annuity provisions is far from over. At the time of this blog post, only the first two stages of the trial’s three stages have been completed. The third stage, which was described by Justices Lauwers and Pardu as a “basket for unresolved issues,” is still to proceed. It is also possible that the Ontario Court of Appeal’s decision will be appealed to the Supreme Court of Canada. The MLT Aikins LLP Indigenous practice group will be watching the next steps in this case closely.

If you have questions about how this case may affect you or your organization, please reach out to one of the lawyers in our Indigenous practice group.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.