Supreme Court of Canada Confirmed Crown is Required to Compensate First Nations for the Breaches of the Robinson Superior Treaty
On July 26, 2024, the Supreme Court of Canada (“SCC” or “the Court”) released its judgment in the Robinson Annuities Litigation. The full decision can be accessed on the Court’s website at: Ontario (Attorney General) v. Restoule (2024 SCC 27).
The Restoule case concerned the correct interpretation of Annuity Augmentation Clause in the Robinson Huron and Robinson Superior Treaties. The Annuity Augment Clause provides that:
“Should the territory hereby ceded by [the First Nations] at any future period produce such an amount as will enable the government of this province, without incurring loss, to increase the annuity hereby secured to them, then the same shall be augmented from time to time; provided that the amount paid to each individual shall not exceed the sum of one pound provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order…”
The trial judge had interpreted the Annuity Augmentation Clause as imposing a mandatory obligation on the Crown that was reviewable by the courts to increase the annuity owed to the First Nations as a collective if the revenue generated from the treaty territory allowed the Crown to do so without incurring a loss. She interpreted the term ‘Her Majesty’s Graciousness’ in the Annuity Augmentation Clause as given the Crown discretion to increase the distributive amount of $4 per person to individuals from the collective annuity. The majority of the Court of Appeal agreed with this interpretation.
Ontario appealed to the SCC. Ontario’s interpretation of the Annuity Augmentation Clause was that the obligation to increase the annuity was discretionary and not mandatory. Ontario argued that Annuity Augmentation Clause did not create a legal duty to increase payments based on the revenue generated from the ceded territory. Instead, they maintained that any increase in the annuity amount by the Crown was completely discretionary, as expressed by the phrase “Her Majesty’s Graciousness.”
The SCC allowed Ontario’s appeal in part. The SCC determined that the proper interpretation of the Annuity Augmentation Clause is that the Crown has a mandatory obligation to increase the annuity up to a value equivalent to $4 per person to the First Nations, as a collective, when the economic circumstances warranted. Further increases to the annuity and payable to the collective are at the discretion of the Crown. The SCC found that there was no separate treaty obligation to pay an annuity to individuals. The Court stressed that if the economic conditions are such that the Crown could increase the annuity by an amount beyond the value equivalent to $4 per person without incurring a loss, the Crown must exercise its discretion to determine whether to do so and, if so, by how much.
The Court explained that while the Crown has the ability to decide whether and by how much the annuity will be increased in the future, the Crown’s decision can be reviewed by a court. The Crown must uphold its constitutional obligations to act diligently, honourably, liberally, and justly while engaging in an ongoing relationship with the Anishinaabe based on the values of respect, responsibility, reciprocity and renewal when making its decision on whether and how must to increase the annuity.
The Court also set out some factors the Crown must consider when exercising its discretion, namely:
- the benefits the Crown has received from the treaty territory and its expenses during the relevant timeframe;
- the population of each beneficiary treaty Nation and their needs;
- the wider needs of other Indigenous populations and the non-Indigenous populations of Ontario and Canada; and
- the principles and requirements flowing from the honour of the Crown, including its duty to diligently implement its sacred promise to in crease the annuity if the land proved profitable.
The Court determined that the economic conditions since 1875 warranted an increase of the annuity and strongly condemned the Crown for waiting nearly 150 years to take any steps to increase the annuity since the last increase. The Court stated that the Crown “has shown itself to be a patently unreliable and untrustworthy Treaty partner in relation to the augmentation promise” and that it “has lost the moral authority to simply say “trust us”. The Court recognized that merely making “a declaration clarifying the rights and obligations of the parties” would be insufficient “given the longstanding and egregious nature of the Crown’s breach…. for almost a century and a half”.
The Court told the Crown to negotiate with the Robinson Superior Treaty First Nations and, failing agreement, compensate the First Nations for past breaches of the treaty.
What does the Court’s ruling mean for past breaches of the RST?
The Court told the Crown to negotiate compensation for past breaches of the treaty with the Robinson Superior Treaty First Nations within six months of the release of the judgment. If a negotiated outcome is not reached within the next six months, the Court has instructed the Crown that it must exercise its discretion under the Annuity Augmentation Clause and set an amount to compensate the Superior plaintiffs for past breaches. The Court has also said that this amount set by the Crown and the process the Crown used to arrive at that amount would be subject to review by the courts.
What does the Court’s ruling mean for the future implementation of RST?
The ruling is a positive step towards reconciliation and for addressing unfulfilled treaty promises. The Court has made it clear that the Crown cannot continue to act dishonourably and with complete discretion in determining how the Robinson Treaties’ Annuity Augmentation Clause is to be implemented. The decision makes it clear that courts will play an important role where the Crown fails to act honourably in exercising its discretion to determine the Robinson Superior Treaty First Nations’ share of the wealth from their treaty territories. If the Crown fails to honourably and justly in exercising its discretion to increase annuity payments, a court may need to intervene and make a decision on what is owed to the Robinson Superior Treaty First Nations instead of returning the matter back to the Crown for redetermination.