Court sets out how Crown can honourably exercise discretion on Treaty’s augmentation clause
In a case about the Ontario and Canadian governments’ failure to fulfill Treaty obligations with the Anishinaabe of Lake Huron and Lake Superior, the Supreme Court of Canada has ordered those governments to negotiate the compensation for unpaid annuities.
In a decision released Friday morning, the SCC found that the governments have acted dishonourably for 150 years by failing to exercise their discretion to raise Treaty annuities, which have been $4-per-person since 1875. The court laid out how Ontario and Canada can exercise that discretion with the “honour of the Crown.”
“It's probably one of the most important Treaty cases that have come along in a long time,” says David Nahwegahbow, counsel for the Anishinaabe Nation members who are beneficiaries of the 1850 Robinson Huron Treaty. “This one is the first civil case which does a complete review of the law of Treaties and common intention and also discusses the application of the principle of the honour of the Crown, and how that imposes enforceable legal obligations on the Crown.”
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The decision, he says, provides a “clear indication” that courts are prepared to intervene to ensure the Crown lives up to its Treaty promises and prepared to order a range of remedies, including compensation.
The Crown had argued it had “unfettered discretion” in how to implement Treaty promises, which the court rejected.
Nahwegahbow says the decision affirms that Treaties are nation-to-nation agreements, and that the court examined the Treaty’s historical context and the history of the nation-to-nation relations going back to the beginning of the Crown’s presence in North America.
“Another important part, which we spent a lot of time on, is the importance of Indigenous laws, and in our case, Anishinaabe law and the application of the principles of Anishinaabe law to Treaty interpretation,” he says.
Counsel for Ontario and Canada declined Canadian Lawyer's interview request.
The Robinson Treaties were signed in 1850 and encompass a large swathe of territory in southern Ontario along the shoreline of Lake Superior and stretching to the Quebec border. Under the Treaties, the Crown owed a perpetual annuity payment to individual members of the First Nations. Under an augmentation clause, that amount was not to exceed the equivalent of $4, but the Crown had the discretion to increase it. The annuities have been $4 since 1875.
The Anishinaabe of Lake Superior and Lake Huron both filed claims (in 2001 and 2014, respectively), arguing the Crown breached the augmentation clause and its fiduciary duty.
The appeal before the SCC concerned the proper interpretation of the augmentation clause, the Crown’s obligation to execute on that clause, and the appropriate remedy for the Crown’s breach of the Treaties.
In Ontario (Attorney General) v. Restoule, 2024 SCC 27, the SCC’s decision was unanimous, and Justice Mahmud Jamal wrote the reasons for the court. Jamal said that the Crown had “dishonourably breached its sacred promises” under the Robinson Treaties for nearly 150 years. Under the augmentation clause, the Crown has the duty to periodically consider whether it can increase the annuities without incurring loss. If the economic circumstances permit, the Crown must increase the annuities.
In exercising its discretion on the annuities, the Crown must act in a manner consistent with the honour of the Crown, said Jamal. This includes acting “diligently, honourably, liberally, and justly.” In failing to diligently fulfil the augmentation clause, the Crown acted dishonourably and is now obligated to determine “honourable compensation”
The Lake Huron plaintiffs had already negotiated a settlement of $10 billion with the Crown. The SCC has directed the Crown to negotiate with the Lake Superior plaintiffs.
