Summary

Keywords

Aboriginal law - Treaty rights - Aboriginal law — Treaty rights — Interpretation of treaty promises — Robinson-Huron Treaty of 1850 — Robinson-Superior Treaty of 1850 — Duty of diligent implementation — Proper approach to interpretation of treaties — Interpretation of Robinson Huron and Robinson Superior Treaties of 1850 — Whether treaty right to share net Crown resource- based revenues which reflects the relative wealth and needs of Indigenous and non- Indigenous communities would make courts central to treaty implementation, risk constitutionalizing substantive, affect future annuities, impact Ontario’s finances and its capacity to address other public needs, and bear on interpretation of post-Confederation numbered treaties — Whether those outcomes are contrary to text of Treaties — Existence and scope of distinct duty of diligent implementation arising from the Honour of the Crown — Whether breach of duty of diligent implementation gives rise to new constitutional cause of action leading to coercive equitable remedies.

Summary

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In 1850, the respondents, the Anishinaabe of the northern shores of Lakes Huron and Superior, entered into two treaties with the Crown: the Robinson-Huron Treaty and the Robinson-Superior Treaty (“Treaties”). The Treaties provided for cessation of a vast territory in northern Ontario, and for payment, in perpetuity, of an annuity to the Anishinaabe. The initial agreed-upon sum was paid and an Order-in-Council declared them ratified and confirmed. In 1875, the annuity was increased to $4 (£1) per person, and, in 1877, the Huron and Superior chiefs petitioned successfully for arrears on the increase since the conditions for increasing the annuity had been met long before the increase. The annuity has not changed since.

The Huron respondents initiated an action against Canada and Ontario seeking declaratory and compensatory relief related to the interpretation, implementation and alleged breach of the annuity provisions in the Robinson-Huron Treaty; the Superior respondents made the same claims under the Robinson-Superior Treaty. The actions were tried together, split into three stages. At Stage One, the Treaties were interpreted, at Stage Two, the defences of Crown immunity and limitations were addressed, and, at Stage Three, the remaining issues (inter alia, damages and the allocation of liability) will be addressed. This application relates to Stages One and Two; Stage Three has yet to be heard.

At Stage One, the trial judge interpreted the Treaties as requiring the Crown to increase the annuity when the Crown’s net resource-based revenues from the treaty territories are such that the increase would not cause the Crown to suffer a loss. The annuity was to correspond to “fair share” of those revenues, which stood to be determined in consultation with First Nations parties. The Crown was subject to duties flowing from honour of Crown and fiduciary duty, and a duty of diligent implementation applied to the augmentation promise. At Stage Two, she rejected the Crown’s claims as to limitations and Crown immunity. A five-member panel of the Court of Appeal allowed the appeal of Stage One order in part (inter alia, the references to a “fair share” and to fiduciary duty were removed from the order, and the costs award to Huron parties was amended). The appeal of the Stage Two decision was dismissed.