SUPREME COURT OF CANADA UPHOLDS TREATY RIGHTS IN HISTORIC RESTOULE DECISION: A VICTORY FOR INDIGENOUS PEOPLES

FOR IMMEDIATE RELEASE
July 26, 2024

The Indigenous Bar Association in Canada (the “IBA”) welcomes the Supreme Court of Canada's (the “SCC” or “Court’s”) decision released today in Ontario (Attorney General) v Restoule (2024 SCC 27). As an intervener in this landmark case, the IBA applauds the unanimous ruling affirming the Crown’s duty to uphold the promises made in historic treaties with Indigenous peoples. 

At the outset, the IBA wishes to congratulate and acknowledge the efforts of the Anishinaabe communities and their legal teams – including IBA members and Indigenous Peoples Counsel (IPC), David Nahwegahbow (IPC), Dianne Corbiere (IPC), and Roger Jones (IPC) – whose tireless work has led to this significant victory, and Mark Stevenson (IPC) and Donald Worme (IPC) as IPC Counsel. This decision not only respects the historic agreements made between the Anishinaabe and the Crown, but also re-affirms their relevance and applicability in today's context.

Drew Lafond, IBA President, stated:

"Today’s decision is a monumental step forward in recognizing and respecting the importance of historic treaties and treaty rights within Canada – and in particular the integral place of Indigenous perspectives and legal orders in treaty interpretation. The Supreme Court’s ruling in Restoule affirms that treaties are not merely historical artifacts but living agreements reflecting the nation-to-nation relationship between Indigenous Nations and the Crown that must be honored and upheld. We hope this decision paves the way for a more just and equitable relationship between Indigenous Nations and the Crown. We commend the Anishinaabe leadership and their legal counsel for their unwavering dedication and commitment to justice."

The appeal concerned a provision of the Robinson-Huron and Robinson-Superior treaties (the “Robinson Treaties”), entered into between the Anishinaabe and the Crown in 1850. The provision – referred to as the “Augmentation Clause” – contained a promise that the Crown would increase the annuities provided to the Anishinaabe signatories where circumstances permitted them to do so without incurring a loss. The increase to the annuities was capped at $4.00, or such greater sum as “Her Majesty may be graciously pleased to order”. At issue in the decision was whether the Crown was legally obligated to increase the annuities above $4.00. 

In a unanimous decision, the SCC found that the Crown had breached the honour of the Crown by failing to implement the promise included in the Robinson Treaties. The decision upheld the well-established principles of treaty interpretation that seek to find the common intention of the parties, based on the text as well as the broader historic and cultural context.

Justice Jamal, writing for the Court, largely upheld Justice Hennessy’s trial decision and repeatedly reinforced the finding that the Robinson Treaties contain a sacred promise to share the wealth of the territory in accordance with Anishinaabe legal principles of reciprocity, respect, responsibility, and renewal. The IBA commends the SCC’s respect for and focus on the Anishinaabe perspective and legal principles in this decision. 

This ruling reinforces the legal obligation of the Crown to act with integrity and fulfill its commitments, emphasizing the importance of upholding treaties as living documents that adapt over time. Importantly, this decision confirms that the “Honour of the Crown” is more than a procedural check box. The Honour of the Crown requires, among other things, that the Crown to diligently implement treaty promises. The Court in this case found that a failure to do so is a breach of both the duty of diligent implementation and the treaty itself. The SCC confirmed that these breaches can attract a full suite of remedies - including declarations and monetary compensation. The Court ultimately issued a declaration, to provide judicial guidance on the rights and obligations included in the Augmentation Clause, and directed further, time-limited, negotiations with the view of respecting the treaty promise, repairing the treaty relationship, and advancing reconciliation.

Importantly, the Court highlighted how historic treaties are unique legal agreements between Indigenous peoples and the Crown that are part of an ongoing treaty relationship. The Court confirmed that all Canadians, not only the Indigenous and Crown signatories, are included within these founding agreements and the nation-building compacts that treaties represent. The Court observed that: “It is time for the parties to return to the council fire and rekindle the perpetual relationship that the Robinson Treaties envision. Nothing less will demonstrate the Crown’s commitment to reconciliation.”

We wish to extend our heartfelt gratitude to our pro bono counsel on this file, IBA members Jason Madden and Alexandria Winterburn, for their tireless dedication and legal expertise in advancing Indigenous rights and supporting our advocacy efforts.

The IBA is the national non-profit organization representing Indigenous (First Nation, Métis, and Inuit) lawyers (practicing and non-practicing), judges legal academics and scholars, articling clerks and law students, including graduate and post-graduate law students and paralegals in Canada. The IBA’s mandate includes, inter alia, advocating for the recognition of Indigenous laws, legal traditions, protocols and processes; promoting the reform of policies and laws affecting Indigenous peoples in Canada; and fostering public awareness within the legal community in respect of legal and social issues of concern to Indigenous peoples in Canada. For more information, please visit www.indigenousbar.ca.