The Ontario Court of Appeal released its decision in Restoule v Canada (Attorney General) 2021 ONCA 779, upholding the trial judge’s decision that the Robinson Treaties are revenue sharing agreements. The Court confirmed that the Crown must share the wealth of the Treaty territory with its First Nation treaty partners, in a manner consistent with the Anishinaabe principles of respect and reciprocity.
The Court unanimously rejected Ontario’s arguments that the Crown has an unfettered discretion to decide whether to increase the annuities paid under the Treaty, which have been set at $4 since 1875.
Instead, the Crown is required to increase the annuities in a generous way consistent with the Honour of the Crown, that is responsive to the needs of Anishinaabe communities.
The Court found that the Crown must be held to the promises it has neglected for over 150 years. The Court unanimously found that there is no limitation period which would constrain the Anishinaabe’s claim for damages.
All members of the Court stressed that it would better for the parties to negotiate a resolution of the outstanding issues between them. However, both the majority and the minority reasons confirm that the Court can compel the government to “address an injustice that brings dishonour to the Crown.”
In the next stage of the trial, the Ontario Superior Court will address the plaintiffs’ claim for damages.
Today’s decision confirms the importance of Anishinaabe principles of respect, responsibility, reciprocity and renewal in understanding the Treaty relationship. It also recognizes that the Covenant Chain Alliance between the Anishinaabe and the Crown was founded on both Anishinaabe and British diplomatic protocols and legal orders. It finds that the Royal Proclamation of 1763 assured the Great Lakes Anishinaabe that their lands and autonomy would be respected, and became part of the Covenant Chain relationship.
The claim was brought by 21 First Nation who are parties to the Robinson Huron Treaty and 2 First Nations who are parties to the Robinson Superior Treaty. The plaintiffs had previously been successful before the Ontario Superior Court in two decisions. Both of those decisions were appealed by the Ontario government, and both were addressed in the decision released today.
Two members of the five member panel Court adopted a different interpretation of the Treaties than the trial judge, but nevertheless rejected the majority of Ontario’s arguments. The Court allowed Ontario’s appeal on a number of subsidiary issues that do not affect the substance of the First Nations’ claims.
Arvay Finlay, along with Nahwegahbow Corbiere, act for the Robinson Huron plaintiffs.
The decision can be found here: Restoule v. Canada (Attorney General), 2021 ONCA 779
A plain language summary by the Court can be found here: Court Overview