Case Brief: Restoule v. Canada (Attorney General), 2021 ONCA 779
By Courtney Jacklin, John Gailus and Christopher Devlin
On November 5, 2021, the Court of Appeal for Ontario released its decision in Restoule v. Canada (Attorney General).[1] The court considered the nature of the Crown’s obligation to pay a perpetual annuity to the Anishinaabe of the upper Great Lakes pursuant to the Robinson-Huron and the Robinson-Superior Treaties (the “Treaties”). The Plaintiffs are beneficiaries of the Treaties. They commenced actions against Canada and Ontario in relation to the interpretation, implementation, and breach of the Treaties’ annuity provisions.
Given the number and complexity of the issues raised, the trial was divided into three stages: (1) Treaty interpretation, (2) the Crown’s defences, and (3) all remaining issues, including damages and the allocation of liability between Canada and Ontario. The Ontario Superior Court of Justice released its Stage 1 and 2 decisions in 2018 and 2020, respectively.
This decision considers Ontario’s appeal of both the Stage 1 and Stage 2 decisions. Stage 3 of the trial is scheduled for Spring 2022.
What this case is about
The primary issue raised on appeal was the interpretation of the augmentation clause in the Treaties’ annuity provisions.
Negotiated and signed in 1850, the Treaties provided for the surrender of a large portion of northern Ontario. In addition to promises of continued hunting and fishing rights, the Crown paid a lump sum up front and promised to make an annual payment to the Anishinaabe. In 1850, the beneficiaries received approximately $1.60-$1.70 per person, depending on whether they were a beneficiary of the Robinson-Huron or the Robinson-Superior Treaty. While this was only a fraction of the standard $10 per person annuity provided in earlier treaties, the Treaties were unique in that they included an augmentation clause linked to revenues from the territory. In 1875, the annuities under both Treaties were increased to $4 per person. This was the first and only time the annuities under either Treaty were increased. To this day, members of the Robinson-Huron and Robinson-Superior Treaties receive $4 per year.
In Stage 1, the trial judge concluded that the Treaties were a collective promise to share revenue from the territory. She held that the Crown has a mandatory and reviewable obligation to increase the annuities. In carrying out its obligations, she held that the Crown must engage in a consultative process to determine whether the annuities can be increased without incurring loss. Further, the trial judge held that the reference to $4 in the augmentation clause applied only to the amount that could be distributed to individuals and did not limit the total collective annuity. She concluded that both the honour of the Crown and an ad hoc fiduciary duty (opposed to the sui generis fiduciary duty often applied in Aboriginal law) required the Crown to diligently implement the purpose of the Treaties’ promise.
In Stage 2, the trial judge concluded that the Plaintiffs’ claims were not barred by either (i) Crown immunity or (ii) provincial legislation that sets limitation periods within which certain types of claims must be brought.
On appeal, Ontario argued that the trial judge erred in her interpretation of the Treaties and in rejecting Ontario’s defences of Crown immunity and limitations.
What the Court found
The appeal was heard by a panel of five justices. The resulting judgment is complex and consists of four sets of reasons. The court issued joint reasons that summarize the factual background and the court’s conclusions. The joint reasons are followed by three sets of individual reasons, each exploring various issues raised on appeal in more detail. While the court disagreed on several legal issues, the court unanimously rejected the majority of the arguments Ontario raised on appeal.
The court as a whole agreed that the honour of the Crown, rather than a fiduciary duty, requires the Crown to diligently implement the Treaties’ promises. The court also unanimously rejected Ontario’s argument that the Plaintiffs’ claims were barred by Crown immunity and statutory limitation periods.
The majority of the court upheld the trial judge’s interpretation of the Treaties, albeit with slight modification – the majority found that the trial judge erred in directing that the payment of the annuities should correspond to the beneficiaries’ “fair share” of the value of the resources, concluding that the concept “fair share” was unnecessary and potentially misguiding.
Why this case is important
The Crown has often ignored historic treaty promises or interpreted them in a way that minimizes the Crown’s obligations to the detriment of Indigenous peoples. Not only does this decision reaffirm that treaty promises must be interpreted in a way that best reflects the common intention of both parties, it also confirms that the Plaintiffs are not statute-barred from bringing their breach of Treaty claims. For historic grievances of Indigenous peoples, this is a significant decision.
The financial implications of Restoule are also likely enormous. The Court of Appeal’s decision is an important step forward for the beneficiaries of the Treaties in the negotiation of an increased annuity and in the calculation of damages for the Crown’s breach of the augmentation provisions.
Although most historic treaties make provision for the payment of annuities, not all have annuity augmentation clauses. It will be interesting to see whether First Nations with other treaty annuities claims will be able to use Restoule in their own cases to accelerate or augment those annuity payments beyond nineteenth century values into twenty-first century equivalents.
Given the plethora of judgments on multiple points of law, we expect Ontario will try to appeal this case to the Supreme Court of Canada.
[1] Restoule v. Canada (Attorney General), 2021 ONCA 779 (CanLII)