On July 26, 2024, the Supreme Court of Canada unanimously affirmed that Canada breached treaties with the Anishinaabe of the Upper Great Lakes and that the Crown has a legal duty to negotiate compensation for its breaches of treaty.
Photo credit: Gordon Lyall
Background
In 1850, the Robinson-Superior and Robinson-Huron Treaties were signed between the Anishinaabe of the Upper Great Lakes and the Crown. The text of the treaties, recorded in English only, provided for a complete cession of Anishinabek territory surrounding the Upper Great Lakes. In exchange, among other benefits, the Crown was to pay to the “Chiefs and their tribes” a perpetual annuity, which the Crown was to increase over time if the lands purportedly ceded under the treaties produced enough revenue to allow the Crown to increase the annuities without incurring a loss. The treaties provided that the amount “paid to each individual” was not to exceed £1 a year, or “such further sum as Her Majesty may be graciously pleased to order.” In 1875, the Crown increased the amount of the annuity from approximately $1.70 to $4.00 per person, where it has remained ever since.
Photo credit: Krista Robertson
The Lower Courts’ Decisions
In 2001, the Anishinaabe of the Robinson-Huron Treaty initiated an action for compensation and a declaration that Canada breached the treaty, and, in 2014, the Robinson-Superior Anishinaabe initiated their own action on similar grounds. The treaties and the actions are distinct, but the Ontario Superior Court heard them together. Due to their complexity, the court divided the actions into three stages: (1) the interpretation of the treaties, (2) Ontario’s defences of Crown immunity and limitations, and (3) the claim for damages and allocation of liability between Canada and Ontario.
In the judgment on stage one of the actions, the court provided an in-depth analysis of the historical context behind the treaties, their spirit and substance, the subsequent conduct of the parties, and the perspectives of the Anishinaabe and the Crown. Importantly, the court had the opportunity to learn from Elders and other knowledge holders about Anishinaabe law and governance, including the overarching principles of pimaatiziwin (life), where everything is alive and everything is sacred, and gizhewaadiziwin (the way of the Creator), as well as the values of respect, responsibility, reciprocity, and renewal. Anishinaabe law and values meaningfully informed the court’s analysis of the Anishinaabe’s and the Crown’s mutual intention, and shaped the court’s findings on the proper interpretation of the treaties.
The court held that the parties to the treaties had intended that the annuity would increase if there was economic growth in the treaty area, that the annuity promise included two components, a collective annuity to be paid to “Chiefs and their Tribes” and a separate annuity to be paid to individuals, and that the cap of $4 per person applied only to the individual component. The court held that the honour of the Crown creates a fiduciary duty in this context, engaging the duty to act in good faith, and an obligation to exercise discretion on the issue of increasing the annuity under the augmentation clause when economic circumstances warrant. The court further stated that the underlying purpose of the honour of the Crown is to facilitate and achieve reconciliation by supporting negotiated resolutions to the interpretation and implementation of the promises in the treaties outside of the courts.
At stage two, Ontario argued that the Limitations Act, 1990 applied and the action by the Anishinaabe was therefore statute-barred. The court distinguished the sui generis (unique and distinct) nature of dealings with Indigenous Peoples and concluded that treaties are more than just contracts and therefore not subject to the Limitations Act, 1990.
The Ontario Court of Appeal allowed Ontario’s appeal on stage one in part and dismissed the appeal on stage two. The majority of the Ontario Court of Appeal agreed with the trial court’s interpretation of the treaties, and affirmed both that the honour of the Crown required the Crown to increase the annuity and that the provincial Limitations Act, 1990 did not apply. The Court of Appeal unanimously held that the trial judge had erred in finding that the Crown is under a fiduciary duty to implement the treaties’ augmentation clause. This did not change the result for the plaintiffs, since the majority of the Court found that the honour of the Crown had the same effect.
Before the Supreme Court heard the appeals, the Robinson-Huron Treaty Anishinaabe settled their claim with Canada and Ontario for $10 billion dollars.
The Supreme Court of Canada Decision
In a unanimous decision, the Supreme Court of Canada held that the Crown breached the treaties and issued declarations confirming that the Crown has a legal duty to consider whether and by how much to increase the annuities. The Court held that the Crown’s discretion is not unfettered, and its exercise is subject to review by the courts. The Court also declared that the Crown must negotiate a settlement with its Robinson-Superior treaty partners for amounts owed for the period between 1875 and the present.
The Supreme Court held that the trial judge was wrong to characterize the annuity promise as having two components: an individual annuity and a collective annuity. In the Court’s view, the annuity promise was to pay annuities on a collective basis, with a “soft cap” of $4 per individual. On the amount of the annuity, the Court held that the Crown was bound to increase the annuity up to $4 per person when the economic circumstances warranted, as was done in 1875, and that the Crown has a discretion to increase the annuity further, which the Crown must exercise if the economic conditions are such that the Crown can do so without incurring a loss. The Court held that the Crown had breached its duty to exercise this discretion. The Court held that breach of treaty claims are not barred by limitations legislation and that, while the Crown’s discharge of its obligation to exercise discretion to increase the annuity is bound by legal principles, including the honour of the Crown and a duty of diligent implementation, which is not merely a procedural duty, the Crown is not subject to a fiduciary obligation in this context.
In interpreting the treaties, the Court gave meaningful weight to the context in which these historical treaties were negotiated, including the perspectives and legal traditions of the Anishinaabe treaty parties. Historical treaties (concluded before 1921) were often quickly negotiated with the official record maintained in English only. The Indigenous parties often relied on translators and were without access to legal advice. The Court affirmed that historical treaties must be interpreted generously, and that they are not subject to the same rules that apply to the interpretation of modern treaties. The Court held that the unique standing of treaties as constitutionally protected sui generis agreements indicates that they are “far more” than contracts.
Remedies and Next Steps
The Court issued declarations affirming the Crown’s breach of treaty and directed the Crown to engage “meaningfully and honourably” with the Robinson-Superior plaintiffs to seek to reach agreement on compensation for past breaches. The Court held that, if the parties cannot reach agreement within six months, the Crown must exercise its discretion under the treaties and fix an amount of compensation, which the Crown must pay to the Robinson-Superior plaintiffs without delay. If the parties do not reach a negotiated settlement, the Robinson-Superior plaintiffs may seek judicial review of both the negotiation process and the amount of compensation determined by the Crown.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.
See CanLII for the Reasons for Judgement.