Restoule v. Canada (Attorney General)

COURT OF APPEAL FOR ONTARIO

CITATION: Restoule v. Canada (Attorney General), 2021 ONCA 779

DATE: 20211105

DOCKET: C66455 & C68595

Strathy C.J.O., Lauwers, Hourigan, Pardu and Brown JJ.A.

BETWEEN

Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and

Roger Daybutch, on their own behalf and on behalf of all members of the

Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson Huron

Treaty of 1850

Plaintiffs

(Respondents)

and

The Attorney General of Canada, the Attorney General of Ontario and Her

Majesty the Queen in Right of Ontario

Defendants

(Appellants/Respondent)

and

The Red Rock First Nation and the Whitesand First Nation

Third Parties

(Respondents)

AND BETWEEN:

The Chief and Council of Red Rock First Nation, on behalf of the Red Rock First

Nation Band of Indians, the Chief and Council of the Whitesand First Nation on

behalf of the Whitesand First Nation Band of Indians

Page: 2

Plaintiffs

(Respondents)

and

The Attorney General of Canada, and Her Majesty the Queen in Right of Ontario

and the Attorney General of Ontario as representing Her Majesty the Queen in

Right of Ontario

Defendants

(Appellants/Respondent)

Lisa La Horey, Christine Perruzza, Sarah Valair, Mark Crow, Insiyah Kanjee,

Richard Ogden, Julia Mc Randall and Kevin Gray, for the appellants the Attorney

General of Ontario, Her Majesty the Queen in Right of Ontario, and the Attorney

General of Ontario as representing Her Majesty the Queen in Right of Ontario

(C66455 & C68595)

Catherine Boies Parker, Q.C., David Nahwegahbow, Dianne G. Corbiere,

Christopher E.J. Albinati, Daniel G. McCoy and Alexander Kirby, for the

respondents Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean

Sayers and Roger Daybutch on their own behalf and on behalf of all members of

the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson Huron

Treaty of 1850 (C66455 & C68595)

Harley I. Schachter and Kaitlyn E. Lewis, for the respondents the Red Rock First

Nation, the Whitesand First Nation, the Chief and Council of Red Rock First

Nation on behalf of the Red Rock First Nation Band of Indians, and the Chief and

Council of the Whitesand First Nation on behalf of the Whitesand First Nation

Band of Indians (C66455 & C68595)

Glynis Evans and Scott Warwick, for the respondent the Attorney General of

Canada (C66455 & C68595)

Brian Gover and Spencer Bass, for the intervener the Biigtigong Nishnaabeg

First Nation (C66455 & C68595)

Adam S.R. Williamson and Stuart Wuttke, for the intervener the Assembly of First

Nations (C66455 & C68595)

Thomas Slade and Cory Giordano, for the intervener the Blood Tribe (C66455)

Page: 3

Scott Robertson, for the intervener the Indigenous Bar Association of Canada

(C66455)

Halie Bruce, for the intervener the Union of British Columbia Indian Chiefs

(C66455)

Heard: April 13, 20-23 and 26-28, 2021; June 1-3, 2021

On appeal from the judgments of Justice Patricia C. Hennessy of the Superior

Court of Justice, dated June 17, 2019, with reasons reported at 2018 ONSC 7701,

431 D.L.R. (4th) 32, and 2018 ONSC 7712 (C66455).

On appeal from the judgments of Justice Patricia C. Hennessy of the Superior

Court of Justice, dated June 26, 2020, with reasons reported at 2020 ONSC 3932,

452 D.L.R. (4th) 604 (C68595).

Paragraph

Reasons of the Court........................................................................................ [1]

I. Joint Reasons of the Court ........................................................................... [1]

Overview ...........................................................................................................[1]

Facts............................................................................................................... [10]

Historical Context........................................................................................ [10]

Pre-Treaty Events ....................................................................................... [32]

The Robinson Treaty Negotiations.............................................................. [43]

The Terms of the Robinson Treaties........................................................... [60]

The Post-Treaty Payment of the Annuities ................................................. [64]

The Trial Judge’s Reasons............................................................................. [69]

Trifurcation of the Case............................................................................... [69]

The Stage One Decision............................................................................. [70]

The Stage Two Decision............................................................................. [82]

Disposition of the Appeals.............................................................................. [84]

II. Reasons of Lauwers and Pardu JJ.A. ....................................................... [98]

Introduction..................................................................................................... [98]

Issue One: Did the Trial Judge Err in Her Interpretation of the Augmentation

Clause in the Treaties? ................................................................................ [103]

The Treaty Text to Be Interpreted............................................................. [104]

The Governing Principles of Treaty Interpretation .................................... [105]

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The Trial Judge’s Interpretation of the Augmentation Clause................... [115]

The Governing Principles Applied............................................................. [123]

Issue Two: Did the Trial Judge Err in Finding that the Doctrine of the Honour of

the Crown Obliges the Crown to Increase the Annuities as Part of its Duty to

Diligently Implement the Treaties?............................................................... [231]

The Governing Principles Concerning the Honour of the Crown.............. [232]

The Trial Judge’s Reasons ....................................................................... [243]

The Position of Ontario on the Honour of the Crown................................ [246]

The Position of Canada on the Honour of the Crown ............................... [248]

The Principles Concerning the Honour of the Crown Applied................... [249]

Issue Three: Did the Trial Judge Err in Finding There Was No Implied Term for

the Indexation of the Annuities?................................................................... [259]

The Trial Decision on Indexation............................................................... [260]

Analysis..................................................................................................... [264]

Issue Four: Did the Trial Judge Err in Her Approach to Remedies?............ [271]

Ontario’s Arguments ................................................................................. [277]

The Language of the Judgments .............................................................. [278]

The Definition of Net Crown Resource-Based Revenues......................... [282]

The “Fair Share” Formulation.................................................................... [287]

Observations on Stage Three ................................................................... [326]

Issue Five: Did the Trial Judge Err in Her Costs Award for the Stage One

Proceedings? ............................................................................................... [334]

The Trial Decision on Costs...................................................................... [339]

Analysis..................................................................................................... [342]

Disposition.................................................................................................... [360]

III. Reasons of Strathy C.J.O. and Brown J.A............................................. [361]

Introduction................................................................................................... [361]

The Trial Judge’s Interpretation of the Treaties ........................................... [364]

Principles of Treaty Interpretation ................................................................ [388]

Standard of Review...................................................................................... [389]

Position of the Parties ............................................................................... [389]

Analysis..................................................................................................... [393]

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Conclusion ................................................................................................ [411]

Analysis of the Trial Judge’s Interpretation of the Treaties .......................... [412]

First Error: Failing to Consider the Plain Meaning of the Treaties’ Text ... [419]

Second Error: Finding Ambiguity Where There Was None ...................... [436]

Third Error: Going Beyond What Was Possible on the Language of the

Treaties ..................................................................................................... [445]

Fourth Error: Failing to Consider the Only Interpretation that Reconciled Both

Parties’ Intentions...................................................................................... [451]

Reconciling the Parties’ Intentions in a Manner Consistent with the Historical

Record.......................................................................................................... [459]

Conclusion on Treaty Interpretation ............................................................. [488]

The Honour of the Crown............................................................................. [493]

The Principles of the Honour of the Crown............................................... [493]

The Crown’s Obligation to Honourably and Diligently Implement the

Robinson Treaties..................................................................................... [498]

Disposition.................................................................................................... [505]

IV. Reasons of Hourigan J.A. ....................................................................... [508]

Introduction................................................................................................... [508]

Analysis ........................................................................................................ [521]

Standard of Review................................................................................... [521]

Fiduciary Duty ........................................................................................... [581]

Crown Immunity ........................................................................................ [629]

Limitations Defence................................................................................... [632]

Disposition.................................................................................................... [663]

APPENDIX “A”: Amended Stage One Judgments

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By the Court:

A.

OVERVIEW

[1]

In 1850, the Anishinaabe on the northern shores of Lake Huron and Lake

Superior entered into two Treaties with the Crown providing for the cession of a

vast territory in northern Ontario. As part of the Treaties, the Crown agreed to pay

a perpetual annuity to the Anishinaabe. This litigation centres on the nature of that

obligation.

[2]

The plaintiffs, who are beneficiaries of the Treaties, instituted two actions

against Canada and Ontario seeking declaratory and compensatory relief related

to the interpretation, implementation and alleged breach of the Treaties’ annuity

provisions. The actions, which are being tried together, have been divided into

three stages: Stage One involved the interpretation of the Treaties; Stage Two

considered the Crown’s defences of Crown immunity and limitations; and Stage

Three, which has yet to take place, will determine remaining issues, including

damages and the allocation of liability between Canada and Ontario. The appeals

before this court are from the partial judgments resulting from the Stage One and

Stage Two decisions.

[3]

In her decision on Stage One, the trial judge held that the Crown has a

mandatory and reviewable obligation to increase the Treaties’ annuities when the

economic circumstances warrant. To carry out that obligation, the trial judge found

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that the Crown must: (i) engage in a consultative process to determine the amount

of net Crown resource-based revenues from the territories; and (ii) pay an

increased annuity amount, reflecting a “fair share”, if there are sufficient Crown

resource-based revenues to allow payment without incurring loss. The trial judge

further determined that the principle of the honour of the Crown and the doctrine

of fiduciary duty impose on the Crown the obligation to diligently implement the

purpose of the Treaties’ promise.

[4]

provincial limitations legislation did not operate to bar the claims.

[5] Ontario appeals. Ontario argues that the trial judge erred in her interpretation

of the Treaties and in rejecting its defences of Crown immunity and limitations.

[6] The appeals raise several issues. To address these issues, we are issuing

In her decision on Stage Two, the trial judge held that Crown immunity and

both these joint reasons by the court (contained in section I of the reasons) and

three sets of individual reasons by (i) Lauwers and Pardu JJ.A. (contained in

section II), (ii) Strathy C.J.O. and Brown J.A. (contained in section III), and (iii)

Hourigan J.A. (contained in section IV).

[7]

The joint reasons provide the factual background to the case and summarize

the court’s conclusions on the issues arising in the appeals. As we explain, we

unanimously reject the majority of the arguments raised on appeal. We dismiss

Ontario’s appeal from the Stage Two proceedings in its entirety and grant the

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appeal from the Stage One proceedings in part, though we part company on

whether the trial judge erred in her interpretation of the Treaties and the

appropriate remedy.

[8]

The three sets of individual reasons address in greater detail the particular

issues arising in the appeals and provide the rationale and analysis behind our

disposition of the various issues.

[9]

We begin first by reviewing the facts of this case and the trial judge’s

reasons.

B.

FACTS

(1) Historical Context

The Anishinaabe of the Upper Great Lakes

(i)

Territory and Language

[10] The beneficiaries of the Robinson-Huron Treaty and Robinson-Superior

Treaty (the “Robinson Treaties” or the “Treaties”) are known as the Anishinaabe

of the upper Great Lakes. They are members of several First Nations who

historically inhabited and continue to inhabit the north shores of Lake Huron and

Lake Superior. Today, the beneficiaries of the Robinson Treaties live on and off

reserve.

[11] At the time the Treaties were made in 1850, the Anishinaabe of the upper

Great Lakes occupied and harvested a territory stretching eastward from the

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vicinity of present-day Thunder Bay, across the northern shores of Lake Superior

and Lake Huron, to Lake Temiskaming, on the present-day border between

Ontario and Quebec. The Robinson Treaties cover a territory that includes the

current communities of Thunder Bay, Sault Ste. Marie, Sudbury, and North Bay,

among others.

[12] Within this territory, the Anishinaabe were organized in Bands, occupying

discrete territories. Bands considered their territories to be communal property.

Band members spoke various dialects of Anishinaabemowin, the language of the

Anishinaabe.

(ii) Governance

[13] The Anishinaabe have their own systems of governance. At trial, Elder Fred

Kelly described two of the organizing principles of Anishinaabe law and

governance: pimaatiziwin and gizhewaadiziwin. Pimaatiziwin is the principle that

everything is alive and sacred. Gizhewaadiziwin, the way of the Creator,

encompasses the seven sacred laws of creation. Anishinaabe governance also

includes values of trust, responsibility, reciprocity, and renewal, and the

understandings that the world is deeply interconnected, and that people must rely

on one another to thrive.

[14] Ishkode, or fire, is also central to Anishinaabe governance and politics. In

the Great Lakes region, ishkode could refer to the place where a family lived, to

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small or large gatherings, or even to an entire nation. “Council fire” could refer to

the location where meetings were held and where decisions and agreements were

made. The Anishinaabe had a complex network of council fires, which were hosted

by an Ogimaa (a Chief or leader). Ogimaa were characterized by their prior

accomplishments and were expected to be responsible for and generous to their

people. Ogimaa were not rulers; the Anishinaabe decision-making process was

deliberative and consensus based.

[15] The trial judge found that the Anishinaabe system of governance within the

Treaty territories was continuous and longstanding.¹

The Relationship Between the Anishinaabe and Colonial Actors

(i)

The Covenant Chain Alliance

[16] The relationship between the Anishinaabe and the Crown was informed by

the Covenant Chain Alliance. While the Covenant Chain originally referred to the

alliance between the Haudenosaunee Confederacy and the British in the early 17th

century, the relationship later extended to Western Nations, including the

Anishinaabe of the upper Great Lakes.

[17] The Covenant Chain Alliance was symbolized by a ship tied to a tree,

connected with rope and iron, which later became silver. The rope represented an

¹Stage One Reasons, at para. 31.

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alliance of equals, iron represented strength, and silver represented durability and

beauty. The metaphor suggested that if one party was in need, they only had to

“tug on the rope” to give a signal that something was amiss and “all would be

restored”.

[18] The westward extension of the Covenant Chain Alliance was a strategic

military decision by the British, who sought to secure the neutrality of Western

Nations, including the Anishinaabe, who had previously fought alongside the

French during the Seven Years War.

[19] The British were not entirely successful in their efforts. In 1763, Odawa Chief

Pontiac, joined by Anishinaabe warriors, led an uprising against the British. In

response, the imperial government issued the Royal Proclamation of 1763 (the

“Royal Proclamation”) to encourage peace, stability, and further settlement and

development in the region.

[20] The trial judge found that the Covenant Chain Alliance was a notable

example of the cross-cultural merging of diplomatic protocols and legal orders.

These shared protocols continued in the decades leading up to the Robinson

Treaties.²

²Stage One Reasons, at para. 89.

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(ii) The Royal Proclamation and the Council at Niagara

[21] The Royal Proclamation represented a unilateral declaration of Crown

sovereignty over what is now Canada, while also affirming Aboriginal title and

ownership of unpurchased lands. It represented, as the trial judge described it, a

“foundational moment” in the history of Canada’s relationship with Indigenous

peoples.³

[22] The Royal Proclamation created rules for the purchase and sale of “Indian

lands” to prevent fraud and abuse. It prohibited private individuals from purchasing

Indian lands and stipulated that Indian lands could only be surrendered to the

Crown at a public meeting, in exchange for compensation. Ultimately, the trial

judge found that the “motivation for and the fundamental concepts in the Robinson

Treaties flow from the Royal Proclamation.”⁴

[23] After the Royal Proclamation was made, a Council was held at Niagara in

1764 between Crown representatives and over 1700 Indigenous people, including

representatives of the Anishinaabe. At the Council, gifts and wampum belts,

including the Great sCovenant Chain Wampum, were exchanged.

³Stage One Reasons, at para. 73. The term “Aboriginal” or “aboriginal” is found in s. 35 of the

Constitution Act, 1982 and much of the jurisprudence. In these reasons, we use the term “Aboriginal” or

“aboriginal” when referring to this jurisprudence. In addition, we also use the term “Indigenous”.

⁴Stage One Reasons, at para. 79.

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[24] The Royal Proclamation and the Council at Niagara communicated to the

Anishinaabe of the upper Great Lakes and other First Nations that their autonomy

and the title to their lands would be maintained and protected. The Royal

Proclamation became a crucial part of the Covenant Chain relationship between

the Anishinaabe and the British.

(iii) The War of 1812 (1812-1815)

[25] As members of the Covenant Chain relationship, Anishinaabe warriors

fought alongside the British in the War of 1812. Some of those warriors played

prominent roles in the negotiation of the Robinson Treaties. One such warrior was

Chief Shingwaukonse, a key player in the events leading up to the Robinson

Treaties and a participant in the Robinson Treaty Council.

[26] The Anishinaabe saw their military alliance with the Crown as an important

part of the ongoing relationship.

Civilization Policy and Annuities

(i)

The Annuity Model

[27] Beginning in 1818, driven by increased immigration, the Crown changed the

compensation model for land cession treaties. It moved from a one-time lump-sum

payment or distribution to an annuity. The assumption was that land sales to

settlers would generate sufficient funds to finance the annual payments in

perpetuity and allow the Crown to control its cash flow.

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[28] Annuity payments were structured on a population model. In 1818, the

Crown set the annuity amount at two and a half pounds (the equivalent of $10) per

person. This amount was used until 1850 in treaties negotiated in the southern

portions of Upper Canada and, after 1841, in Canada West, irrespective of the size

or value of the land ceded.

(ii) Civilization Policy

[29] As settlement and agricultural development in Upper Canada increased, and

the need for military alliances with Indigenous communities decreased, the colonial

government changed its Indigenous relations policy.

[30] Until 1820, the Indian Department was a military department, tasked with

maintaining the Crown’s military alliance with Indigenous nations. When the

Crown’s need for that alliance diminished, the department’s objectives changed

from military to civil control. A “civilization” policy was implemented, seeking to

“reclaim” Indigenous peoples from “barbarism” and assimilate them into a

Christian, agrarian life.

[31] The civilization policy influenced the Crown’s approach to treaty-making,

and, more specifically, annuity payments. One result of this policy was stronger

controls and guidelines for annuity payments, intended to prevent the “misuse” of

the funds. In 1830, the Colborne Policy mandated that annuities be paid through a

requisition system, whereby Chiefs could request items that promoted a sedentary,

Page: 15

agricultural, European way of life. The Colborne Policy was in place during the

negotiation of the Robinson Treaties in 1850.

(2) Pre-Treaty Events

Mining in the Upper Great Lakes Region

[32] During the 1840s, prospectors began exploring for valuable minerals on the

south side of Lake Superior. “Copper fever” soon moved north. Despite the

absence of a treaty with the Anishinaabe of the upper Great Lakes, in 1845 the

Crown began to issue mining licences for the region.

[33] The issuance of mining licences and the encroachment of prospecting

miners onto their lands prompted vigorous complaints from the Anishinaabe.

Between 1846 and 1849, Anishinaabe Chiefs, including Chief Shingwaukonse,

wrote petitions and memorials and met with government leaders to assert claims

over their territory and to request compensation. The Anishinaabe Chiefs reminded

the Crown of their long history of treaty-making, past promises made by the Crown

to respect and protect their lands, and their military support of the Crown through

alliances. The Chiefs requested compensation in various forms, including payment

for resources already taken and those still to be taken, and a share of the benefits

from mining.

Page: 16

[34] As the trial judge noted, the tension generated by Crown-sanctioned mining

exploration was one of the triggers for the negotiation of the Robinson Treaties.⁵

Vidal-Anderson Commission (1849)

[35] In 1849, the government appointed a commission to investigate the

Anishinaabe grievances. Provincial land surveyor Alexander Vidal and Indian

Superintendent Thomas G. Anderson were instructed to travel to the northern

shores of Lake Huron and Lake Superior to investigate the Anishinaabe’s claims

to the land, the size and dispersion of the Anishinaabe population, and their use of

their territory. Vidal and Anderson were also asked to assess the Anishinaabe’s

expectations for a potential treaty. During their travels, Vidal and Anderson met

with 16 of the 22 Anishinaabe Chiefs.

[36] The Vidal-Anderson Commission reported on December 5, 1849. The report

made several observations, conclusions, and recommendations, including:

 the Anishinaabe’s land claim was legitimate;

 the land was unlikely to be useful for agriculture;

 although neither the Anishinaabe, nor the commissioners, knew the

monetary value of the territory, its value was understood to stem from

revenue from mining locations and surveyed lots at Sault Ste. Marie;

⁵Stage One Reasons, at para. 118.

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 despite encountering treaty demands from the Chiefs that they

considered unreasonable, Vidal and Anderson concluded that the

Anishinaabe were willing to treat, provided that they could remain in

their communities, that they could continue to hunt and fish, and that

a perpetual annuity be provided as compensation;

 Vidal and Anderson recommended that the Crown seek a surrender of

the whole territory, rather than compensating the Anishinaabe only for

the mining locations granted because:

o the land was comparatively valueless;

o some land had already been taken;

o going forward, this would allow the government to dispose

of the land “without embarrassment” (meaning without

encumbrance in modern terminology); and

o this would assist the Anishinaabe who were experiencing

increasing scarcity of food and clothing;

 Vidal and Anderson recommended that a lower than usual annuity

should be offered, given that:

o the land’s only value derived from the copper deposits along

the lake shores;

o the Anishinaabe would retain their hunting and fishing rights,

relinquishing nothing but land title; and

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o the Anishinaabe would be no poorer once they ceded the

land to settlers, because trade with the settlers would enable

them to draw wealth from their territory;

 Vidal and Anderson strongly recommended that, after the first

payment, subsequent payments be made in clothing, provisions,

goods, and implements, and should include an annual appropriation

for establishing and maintaining schools; and

 because little was known about the value of the territory, Vidal and

Anderson recommended including a treaty provision that would, if

necessary, promise an increase of payment upon further discovery or

development of new sources of wealth.

[37] Vidal and Anderson proposed a compensation model that would take into

account the discovery of new wealth in the territory. This was a new approach to

treaty-making in Canada. While this idea had been suggested previously by

Anishinaabe leaders, including Chief Shingwaukonse, the Vidal-Anderson Report

is the first record of government officials engaging with it. The trial judge found that

the Commissioners’ report prepared the Crown for treaty discussions “that would

require an innovative solution to bridging the gap between the parties’

expectations”.⁶

⁶Stage One Reasons, at para. 181.

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The Mica Bay Incident (1849)

[38] The Anishinaabe’s concerns about encroachments on their traditional lands

were not assuaged by Vidal and Anderson’s visit. They were frustrated by

government inaction after three years of discussions about a diplomatic settlement

to their claims.

[39] While Vidal and Anderson travelled back to Toronto from the upper Great

Lakes region, Chief Shingwaukonse and Chief Nebenaigoching led a party of 100

Anishinaabe to occupy a mining site at Mica Bay. Upon learning of the

Anishinaabe’s march towards Mica Bay on November 19, 1849, Governor General

Lord Elgin issued an Order in Council (“OIC”) authorizing the arrest of the

participants. The Governor General also directed the provincial government to

make a treaty with the Anishinaabe of the upper Great Lakes to finally resolve their

outstanding claims.

[40] Chief Shingwaukonse and Chief Nebenaigoching, along with their lawyer,

Allan Macdonell, were arrested and brought to a Toronto jail. While in Toronto, the

Chiefs met with William B. Robinson.

[41] Robinson was a politician and a member of the Executive Council of

government, and he had experience in the fur trade, the mining sector, and the

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treaty-making process. The trial judge noted that Robinson had “excellent

relations” with the Anishinaabe and spoke some Anishinaabemowin.⁷

[42] Shortly after he met with Chief Shingwaukonse and Chief Nebenaigoching,

Robinson offered his assistance to resolve the claims of the Anishinaabe of the

upper Great Lakes. On January 11, 1850, the provincial government issued an

OIC appointing Robinson as Treaty Commissioner for the negotiations.

(3) The Robinson Treaty Negotiations

Instructions to Robinson

[43] Robinson’s mandate was set out in two OICs. The second, dated April 16,

1850, provided detailed instructions in response to Robinson’s request for

guidance. Robinson was to endeavor to secure a treaty that covered all of the

territory on the northern shores of Lake Huron and Lake Superior on the following

terms:

 the smallest possible initial payment (less than £5000);

 a perpetual annuity no higher than what could be generated through

interest on the notional capital sum of £25,000 less the initial payment;

and

⁷Stage One Reasons, at para. 190.

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 a provision for a deduction in the annuity if the population fell below

600.

[44] As a “bottom line” alternative, Robinson was to negotiate the surrender of

the north eastern coast of Lake Huron and the Lake Superior Coast that included

the mining operations at Mica Bay and Michipicoten.

[45] The trial judge identified two concerns likely to have influenced the limited

financial authority given to Robinson.⁸First, the Government was of the view that

the Anishinaabe were not giving up much, given that the land was not suitable for

agriculture and that they would continue to live, hunt, and fish on the territories

after a treaty was signed. Second, the Province of Canada was in financial crisis.

Robinson was aware, prior to the treaty negotiations, that the amounts available

to him could not support the standard $10 per person annuity that had been

provided in other treaties negotiated since 1818.

The Treaty Council

[46] The treaty negotiations took place over three weeks in the late summer of

1850. As the trial judge noted, Robinson’s diary and his Official Report were the

only documents identified at trial that provided details of the Treaty Council.⁹

⁸Stage One Reasons, at paras. 201-3.

⁹Stage One Reasons, at para. 209.

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[47] Robinson first met with the Superior and Huron delegations, separately, in

Sault Ste. Marie (known to the Anishinaabe as Bawaating) and Garden River,

respectively. Robinson met with the Superior delegation, led by Chief Peau de

Chat, for significantly longer than he did with the Huron delegation, led by Chief

Shingwaukonse. The two delegations then came together in Bawaating on

September 5, 1850 for the substantive treaty discussions.

[48] The Treaty Council at Bawaating was conducted in Anishinaabemowin and

English, and incorporated ceremonies and protocols characteristic of Great Lakes

diplomacy. The trial judge noted that these ceremonies indicated that the Crown

actors had developed a functional understanding of Anishinaabe law, diplomacy,

and language.¹⁰

[49] Robinson’s initial proposal regarding reasonable reservations for the

Anishinaabe and continued hunting rights throughout the ceded territory was

accepted without further discussion. The provisions for reserves and the protection

of harvesting rights were, according to the trial judge, more expansive than the

Crown’s standard practice.¹¹

[50] Robinson then discussed compensation. The Anishinaabe delegations

preferred a perpetual annuity in exchange for the entire territory, rather than a

¹⁰Stage One Reasons, at para. 214.

¹¹Stage One Reasons, at para. 223.

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lump-sum payment for only the existing mining locations. Given this preference,

Robinson outlined the Crown’s proposal, offering the entirety of the cash he had in

hand: £4,000 ($16,000) in cash, and a perpetual annuity of £1,000, both amounts

to be divided between the Superior and Huron First Nations.

[51] Knowing that this proposal was lower than prior treaties, Robinson sought

to justify it based on the unique nature of the land and other promises included in

the Treaty. As the trial judge summarized, Robinson explained that:

 the land was vast and “notoriously barren and sterile” when compared

to the good quality lands in Upper Canada that were sold readily at

prices which enabled the Government to be more liberal with

compensation;

 the settlers occupied the land covered by prior treaties in a way that

precluded the possibility of Indian hunting or access to them, whereas

the Anishinaabe would retain such rights over the lands ceded;

 in all probability the lands in question would never be settled except in

a few localities by mining companies; and

 the occupation by settlers would be of great benefit to the Anishinaabe,

who would gain a market for selling items and access to provisions at

reasonable prices.¹²

¹²Stage One Reasons, at para. 218.

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[52] Chief Peau de Chat of the Superior delegation expressed his satisfaction

with Robinson’s initial proposal and requested a day to reply to Robinson’s offer.

Chief Shingwaukonse, from the Huron delegation, also asked for time to respond.

The Chiefs both had to speak to their own Councils and determine their responses

to Robinson’s offer, based on consensus.

[53] The next day, Chief Peau de Chat told Robinson that the Superior delegation

was prepared to sign a treaty. Chief Shingwaukonse of the Huron delegation, on

the other hand, was not. Chief Shingwaukonse made a counterproposal for an

annuity of $10 per head. Robinson rejected this proposal, telling Chief

Shingwaukonse that a majority of the Chiefs were in favour of the terms and that

he was going to write up the Treaties on the basis approved by the Superior

delegation.

[54] After scrutinizing the timing of Robinson’s initial offer and the Superior

delegation’s response, the trial judge found that Robinson’s initial offer included

the notion of an augmentation clause.¹³She found that there was “no other

reasonable conclusion”.¹⁴The proposed augmentation clause stipulated that the

annuity would increase if revenues received from the territory permitted the

government to do so without incurring loss.

¹³Stage One Reasons, at para. 220.

¹⁴Stage One Reasons, at para. 226.

Page: 25

[55] On September 7, 1850, Robinson read the Robinson-Superior Treaty aloud

to the Superior delegation. Translation services were provided. Chief Peau de Chat

told Robinson he understood the Treaty and was ready to sign it.

[56] Robinson met with the Huron delegation later that day. Chief

Shingwaukonse repeated his counterproposal. Robinson responded with an

ultimatum: those who signed the Treaty would receive compensation for their

people, and those who did not would receive no such compensation and would

have no treaty.

[57] On September 9, 1850, Chief Shingwaukonse and Chief Nebenaigoching

once again asked Robinson for a $10 per person annuity and raised the subject of

land grants for the Métis. Robinson rejected their requests and had the Robinson-

Huron Treaty read aloud to the delegation. When Chiefs Shingwaukonse and

Nebenaigoching saw that other Chiefs in the Huron delegation were prepared to

accept the proposed terms, they signed the Treaty.

[58] Ultimately, the Robinson-Huron Treaty was substantially the same as the

Robinson-Superior Treaty, but because the Huron population was greater the

initial annuity amount was set at £600, whereas the Robinson-Superior Treaty

stipulated £500.

[59] Once the Treaties were signed, Robinson paid the Chiefs the initial sum.

The Treaties were presented to Prime Minister Louis-Hippolyte LaFontaine on

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September 19, 1850. Robinson’s final report, dated September 24, 1850, was

delivered to Indian Superintendent Colonel Robert Bruce. An OIC, dated

November 29, 1850, declared that the Treaties were to be ratified and confirmed.

(4) The Terms of the Robinson Treaties

[60] The Robinson Treaties each have a surrender clause, a consideration

clause, and an augmentation clause, among other terms. The trial judge set out

transcriptions of both Treaties from an 1891 text.¹⁵

The Robinson-Superior Treaty

[61] The trial judge reproduced the following excerpts of the Robinson-Superior

Treaty:

The Surrender Clause

[The Anishinaabe of the Lake Superior territory] from

Batchewanaung Bay to Pigeon River, at the western

extremity of said lake, and inland throughout that extent

to the height of the land which separates the territory

covered by the charter of the Honorable the Hudson’s

Bay Company from the said tract [and] also the islands in

the said lake … freely, fully and voluntarily surrender,

cede, grant and convey unto Her Majesty, Her heirs and

successors forever, all their right, title and interest in the

whole of the territory above described [except for certain

reservations (three in all) set out in the annexed

schedule]….¹⁶

¹⁵See Stage One Reasons, at Appendices A and B; Canada, Indian Treaties and Surrenders: From 1680

to 1890, vol. 1 (Ottawa: Brown Chamberlin, 1891).

¹⁶See Stage One Reasons, at para. 238. See also Canada, at p. 147.

Page: 27

The Consideration Clause

[F]or and in consideration of the sum of two thousand

pounds of good and lawful money of Upper Canada to

them in hand paid; and for the further perpetual annuity

of five hundred pounds, the same to be paid and

delivered to the said Chiefs and their Tribes at a

convenient season of each summer, not later than the

first day of August at the Honorable the Hudson’s Bay

Company’s Posts of Michipicoton and Fort William....¹⁷

The Augmentation Clause

The said William Benjamin Robinson, on behalf of Her

Majesty, who desires to deal liberally and justly with all

Her subjects, further promises and agrees that in case

the territory hereby ceded by the parties of the second

part shall at any future period produce an amount which

will enable the Government of this Province, without

incurring loss, to increase the annuity hereby secured to

them, then and in that case 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; and

provided, further, that the number of Indians entitled to

the benefit of this Treaty shall amount to two-thirds of

their present number (which is twelve hundred and forty),

to entitle them to claim the full benefit thereof, and should

their numbers at any future period amount to two-thirds

of twelve hundred and forty, the annuity shall be

diminished in proportion to their actual numbers.¹⁸

¹⁷See Stage One Reasons, at para. 239. See also Canada, at p. 147.

¹⁸See Stage One Reasons, at para. 243. See also Canada, at p. 148.

Page: 28

The Robinson-Huron Treaty

[62] The trial judge reproduced the following excerpts of the Robinson-Huron

Treaty:

The Surrender Clause

[The Anishinaabe i]nhabiting and claiming the eastern

and northern shores of Lake Huron from

Penetanguishene to Sault Ste. Marie, and thence to

Batchewanaung Bay on the northern shore of Lake

Superior, together with the islands in the said lakes

opposite to the shore thereof, and inland to the height of

land which separate the territory covered by the charter

of the Honorable Hudson’s Bay Company from Canada,

as well as all unconceded lands within the limits of

Canada West to which they have any just claim … on

behalf of their respective tribes or bands, do hereby fully,

freely and voluntarily surrender, cede, grant, and convey

unto Her Majesty, Her heirs and successors for ever, all

their right, title and interest to and in the whole of the

territory above described [except for certain reservations

(15 in all) set forth in the annexed schedule]….¹⁹

The Consideration Clause

[F]or and in consideration of the sum of two thousand

pounds of good and lawful money of Upper Canada to

them in hand paid, and for the further perpetual annuity

of six hundred pounds of like money, the same to be paid

and delivered to the said Chiefs and their tribes at a

convenient season of each year, of which due notice will

be given, at such places as may be appointed for that

purpose….²⁰

¹⁹See Stage One Reasons, at para. 240. See also Canada, at p. 149.

²⁰See Stage One Reasons, at para. 241. See also Canada, at p. 149.

Page: 29

[63] The augmentation clause in the Robinson-Huron Treaty is not materially

different from the augmentation clause in the Robinson-Superior Treaty. It states:

The Augmentation Clause

The said William Benjamin Robinson, on behalf of Her

Majesty, Who desires to deal liberally and justly with all

Her subjects, further promises and agrees that should the

territory hereby ceded by the parties of the second part

at any future period produce such an amount which will

enable the Government of this Province, without incurring

loss, to increase the annuity hereby secured to them,

then and in that case 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; and

provided further that the number of Indians entitled to the

benefit of this treaty shall amount to two-thirds of their

present number, which is fourteen hundred and twenty-

two, to entitle them to claim the full benefit thereof; and

should they not at any future period amount to two-thirds

of fourteen hundred and twenty-two, then the said

annuity shall be diminished in proportion to their actual

numbers.²¹

(5) The Post-Treaty Payment of the Annuities

[64] Based on the population of the Anishinaabe in 1850, the annuity (£600 for

the Robinson-Huron Treaty and £500 for the Robinson-Superior Treaty) was

approximately $1.70 and $1.60 per person, respectively. The method of

²¹See Stage One Reasons, at para. 243. See also Canada, at p. 150.

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distribution of the annuities was slightly different as between the Superior and

Huron beneficiaries.

[65] Throughout the 1850s the Hudson’s Bay Company distributed the Robinson-

Superior Treaty annuity payments in cash to the head of each family for nearly 25

years.

[66] Between 1851 and 1854, the Robinson-Huron Treaty annuities were paid in

goods to each Band. No individual cash payments were made. Beginning in 1855,

the Crown paid the annuity, in cash, to the Robinson-Huron Treaty beneficiaries.

[67] In 1875, the annuity was increased to $4 (£1) per person. This was the first

and only time the annuity has been augmented; it has not changed since. In 1877,

the Chiefs petitioned for arrears for the period of 1850-1874, arguing that the

economic circumstances for an increase to $4 existed long before 1875. Payment

of arrears eventually began in 1903.

[68] Part of the reason for the delay in the payment of arrears was a dispute

about who was constitutionally required to pay them. In 1895, an arbitration panel

determined that Ontario became responsible for paying augmented annuities after

Confederation. Ontario appealed that decision to the Supreme Court, which

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granted the appeal.²²Canada’s further appeal to the Judicial Committee of the

Privy Council was dismissed.²³

C.

THE TRIAL JUDGE’S REASONS

(1) Trifurcation of the Case

[69] As noted above, the litigation surrounding the Robinson Treaties has been

divided into three stages. Stage One proceeded by way of summary judgment

motions and considered the interpretation of the Treaties. Stage Two, which also

proceeded as summary judgment motions, considered Ontario’s defences of

Crown immunity and limitations. Stage Three, which has yet to take place, will

determine the remaining issues, including damages and the allocation of liability

between Canada and Ontario.

(2) The Stage One Decision

Overview of the Trial Judge’s Decision

[70] In her decision on Stage One, the trial judge held that the Crown has a

mandatory and reviewable obligation to increase the Robinson Treaties’

annuities.²⁴She found that the Crown must engage in a consultative process with

the Treaty beneficiaries and pay an increased annuity amount, reflecting a “fair

²²Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434.

²³Attorney-General for the Dominion of Canada v. Attorney-General for Ontario, [1897] A.C. 199

(J.C.P.C.).

²⁴Stage One Reasons, at para. 3.

Page: 32

share”, if there are sufficient Crown resource-based revenues to allow payment

without incurring loss.²⁵The trial judge interpreted the £1 (or $4) limit in the

Treaties’ augmentation clause to apply only to “distributive” payments to

individuals, not as a limit or cap on the total collective annuity.²⁶

[71] The trial judge also found that both the principle of the honour of the Crown

and the doctrine of fiduciary duty impose on the Crown the obligation to diligently

implement the purpose of the Treaties’ promise.²⁷Further, the trial judge provided

guiding principles for what constitutes relevant Crown revenues and expenses.²⁸

Finally, the trial judge rejected Ontario’s submission that an indexation term could

be implied in the Treaties.²⁹

Treaty Interpretation

[72] The trial judge sought to engage in a purposive interpretation of the Treaties,

to find the common intention of the parties, pursuant to the three steps set out in

Marshall.³⁰

²⁵Stage One Reasons, at paras. 3, 568-70.

²⁶Stage One Reasons, at para. 397.

²⁷Stage One Reasons, at paras, 3, 533 and 568.

²⁸Stage One Reasons, at paras. 551-54.

²⁹Stage One Reasons, at para. 598.

³⁰R. v. Marshall, [1993] S.C.R. 456, at paras. 82-83.

Page: 33

[73] At step one, the trial judge found that the Treaties were ambiguous with

respect to whether the annuity was a “collective” or an “individual” entitlement, and

whether the parties intended to limit the collective annuity to £1 ($4) per person.³¹

[74] At step two, the trial judge considered the historical and cultural context

leading up to the Treaties. She analyzed the perspective of the Anishinaabe and

the Crown, as well as the post-Treaty evidence.³²She concluded that the

Anishinaabe understood the Treaties as an agreement to live in harmony with

settlers and to maintain a relationship in evolving circumstances.³³At the same

time, the trial judge acknowledged that the Crown was in a dire financial situation

but knew that it needed the consent of the Anishinaabe to fully access the wealth

and benefits of the territory.³⁴The trial judge also concluded that the post-Treaty

record was vague and inconsistent and was therefore of limited assistance to

understanding the parties’ common intention.³⁵

[75] At step three, the trial judge laid out three possible interpretations of the

augmentation clause, based on her understanding of the positions of the parties in

1850:

³¹Stage One Reasons, at paras. 398-410.

³²Stage One Reasons, at paras. 410-58

³³Stage One Reasons, at para. 423.

³⁴Stage One Reasons, at paras. 430-32.

³⁵Stage One Reasons, at para. 318.

Page: 34

the Crown’s promise was capped at $4 per person; once the annuity was

increased to an amount equivalent to $4 per person, the Crown had no

further liability; or

the Crown was obliged to make orders “as Her Majesty may be

graciously pleased to order” for further payments above $4 per person

when the economic circumstances permitted the Crown to do so without

incurring loss; or

the Treaties were a collective promise to share the revenues from the

territory with the collective; the Crown was obliged to increase the lump

sum annuity so long as the economic condition was met; the reference

to $4 in the augmentation clause was a limit only on the amount that may

be distributed to individuals.³⁶

[76] The trial judge concluded that the third interpretation best reflected the

common intention of the parties in 1850.³⁷She noted that an augmentation clause

linked to revenues was an innovative solution that reconciled the diverging

expectations of the Anishinaabe and the Crown.³⁸Ultimately, the Treaties were

intended to renew and reinforce an ongoing relationship.

³⁶Stage One Reasons, at paras. 459-61.

³⁷Stage One Reasons, at para. 462.

³⁸Stage One Reasons, at paras. 468-70.

Page: 35

Crown Obligations and Discretion

[77] The trial judge concluded that the principle of the honour of the Crown and

the doctrine of fiduciary duty impose an obligation to diligently implement the

Treaties’ promise to achieve their purpose.³⁹Specifically, the trial judge held that

the Crown has a duty to engage in a process to determine whether the annuities

can be increased without incurring loss.⁴⁰Further, the Crown does not have

unfettered discretion on whether or how to make increases to the annuities but

does maintain significant discretion in implementing the Treaties.⁴¹

[78] The trial judge found that a sui generis fiduciary duty did not arise from the

Treaties’ promise.⁴²However, she held that the Crown has an ad hoc fiduciary duty

because: (i) the Crown undertook to act in the best interests of the Anishinaabe

and had no other conflicting demands when engaging in a process to implement

the augmentation clause; (ii) the beneficiaries constitute a defined class of persons

vulnerable to the Crown’s control; and (iii) the beneficiaries stood to be adversely

affected because of the discretionary control of the Crown over the annuity

increase.⁴³The purpose of this duty is to “facilitate supervision of the high degree

³⁹Stage One Reasons, at paras. 3, 538.

⁴⁰Stage One Reasons, at para. 533.

⁴¹Stage One Reasons, at paras. 568-69.

⁴²Stage One Reasons, at para. 512.

⁴³Stage One Reasons, at paras. 522-26.

Page: 36

of discretionary control assumed by the Crown over the lives of Indigenous

peoples”.⁴⁴

Implementation of the Treaty Promise

[79] The trial judge largely left the practical aspects of implementation to Stage

Three of the litigation. However, she provided some general principles as a

“starting point”, subject to further clarification and direction from the court.⁴⁵She

outlined the following guiding principles to aid the parties in determining what

constitutes relevant Crown revenues and expenses, what constitutes a fair share

of net Crown revenues, and the Crown’s duties of disclosure and consultation:

 Crown resource-based revenues are those that arise directly or in a

closely related way to the use, sale or licensing of land (including

water) in the Treaty territory, including mineral and lumber revenues

and other analogous revenues. Personal, corporate, and property tax

revenues are not included;

 Crown expenses are expenses related to collecting, regulating and

supporting relevant revenues, but do not include the costs of

infrastructure and institutions built with tax revenues;

⁴⁴Stage One Reasons, at para. 527.

⁴⁵Stage One Reasons, at para. 553.

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 it is impossible to gauge what a “fair share” of new Crown revenues is,

but a fair share does not include the Treaty beneficiaries taking 100

percent of the net benefits from the Crown;

 the Crown has a duty to disclose sufficient information for the purpose

of determining net Crown resource-based revenues; and

 the Crown may have a duty to consult when implementing the Treaty

promise, given that its conduct may have an adverse impact on a

Treaty right.⁴⁶

Implied Indexation Term

[80] The trial judge rejected Ontario’s claim (and the Huron and Superior

Plaintiffs’ alternative claim) that a term should be implied that the Treaty annuities

would be indexed for inflation. The Huron and Superior Plaintiffs and Ontario

accepted that the phenomenon of persistent inflation was not within the

contemplation of the parties at the time the Treaties were signed, but argued that

the parties would have included such a term had they known that the purchasing

power of the annuities would be eroded over time. The trial judge found that this

would effectively be “imputing knowledge of one historical fact in the absence of

the constellation of other historical facts”.⁴⁷Moreover, the effects of inflation could

⁴⁶Stage One Reasons, at paras. 544-72.

⁴⁷Stage One Reasons, at para. 588.

Page: 38

be addressed adequately through the augmentation of the annuity.⁴⁸The trial

judge acknowledged, however, that if an appellate court were to find that the

augmentation clause does not operate as she found, a second look at the indexing

claim would be necessary.⁴⁹

Costs

[81] The trial judge awarded costs to the Huron Plaintiffs and the Superior

Plaintiffs on a partial indemnity basis, fixed at 85 percent of their fees and 100

percent of disbursements.⁵⁰The Huron Plaintiffs were ultimately awarded a total

of $9,412,447.50 and the Superior Plaintiffs were awarded $5,148,894.45.

(3) The Stage Two Decision

[82] In her decision on Stage Two, the trial judge held that Crown immunity and

provincial limitations legislation did not operate to bar the Huron Plaintiffs’ and

Superior Plaintiffs’ claims. First, she rejected Ontario’s argument that Crown

immunity shielded the Crown from claims for breach of fiduciary duty arising prior

to September 1, 1963, being the date of the coming into force of the Proceedings

Against the Crown Act (“PACA”).⁵¹Second, she dismissed Ontario’s argument that

claims for treaty breaches are properly characterized as claims on a “simple

⁴⁸Stage One Reasons, at para. 593.

⁴⁹Stage One Reasons, at para. 595.

⁵⁰Stage One Costs Reasons, at para. 43.

⁵¹Proceedings Against the Crown Act, 1962-63, S.O. 1962-63, c. 109 (“PACA”); Stage Two Reasons, at

paras. 13-87.

Page: 39

contract” or a “speciality”, or as an “action of account”, and therefore statute barred

by the former Limitations Act (the “1990 Limitations Act”).⁵²Third, the trial judge

discussed in obiter that, had it been necessary to do so, she would have held that

the Nowegijick principles and the principle of the honour of the Crown applied when

interpreting the Crown’s statutory defences.⁵³

[83] The trial judge accordingly granted partial summary judgment for the Huron

and Superior Plaintiffs on the questions of limitations and Crown immunity. She

deferred until Stage Three the issue of whether Ontario and Canada are jointly and

severally liable or in the alternative whether Canada is the paymaster.

D.

DISPOSITION OF THE APPEALS

[84] As noted at the outset, we have written these joint reasons to summarize

the background to this case and our disposition of the appeals. Our individual

reasons further explain the basis of our disposition of the various issues raised.

These issues are the following:

What is the standard of review for treaty interpretation?

Did the trial judge err in her interpretation of the augmentation clause in

the Treaties?

⁵²Limitations Act, R.S.O. 1990, c. L.15 (the “1990 Limitations Act”); Stage Two Reasons, at paras. 109-

201.

⁵³Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Stage Two Reasons, at paras. 202-38.

Page: 40

Did the trial judge err in finding that the honour of the Crown requires the

Crown to act honourably in fulfilling the Treaties’ promise?

Did the trial judge err in finding that the Crown’s discretion to augment

the annuities is justiciable and not unfettered?

Did the trial judge err in finding that the Crown is under a fiduciary duty

regarding the augmentation clause in the Treaties?

Did the trial judge err in finding that the Crown is not immune from

breaches of fiduciary duty prior to 1963?

Did the trial judge err in finding that provincial limitations legislation does

not bar the claims for breach of the Treaties?

Did the trial judge err in finding that there was no implied term for the

indexation of the annuities?

Did the trial judge err in her costs award for the Stage One proceedings?

Did the trial judge err in her approach to remedies in the Stage One

proceedings?

[85] First, on the issue of the standard of review for treaty interpretation, Strathy

C.J.O. and Brown J.A. conclude that the trial judge’s interpretation of the Treaties

is reviewable on a correctness standard. Lauwers J.A. concurs. Hourigan J.A., in

contrast, concludes that treaty interpretation is reviewable on a standard of

palpable and overriding error, absent extricable errors of law, which are reviewed

on a correctness standard. Pardu J.A. concurs with Hourigan J.A.

Page: 41

[86] Second, on the issue of the trial judge’s interpretation of the Treaties,

Lauwers and Pardu JJ.A. hold that the trial judge did not err in her interpretation of

the Treaties’ augmentation clause. Hourigan J.A. concurs. Conversely, Strathy

C.J.O. and Brown J.A. hold that the trial judge committed errors of law in her

interpretation of the Treaties, leading to an unreasonable interpretation.

[87] Third, on the issue of the honour of the Crown, we unanimously agree that

the doctrine is engaged in this case. Lauwers and Pardu JJ.A., with whom

Hourigan J.A. concurs, conclude that the honour of the Crown obliges the Crown

to increase the annuities as part of its duty to diligently implement the Treaties.

Strathy C.J.O. and Brown J.A. conclude that the honour of the Crown requires, at

a minimum, that the Crown turn its mind from time to time to consider increasing

the amount of the annuities.

[88] Fourth, on the issue of the Crown’s discretion to augment the annuities,

Lauwers and Pardu JJ.A., with whom Hourigan J.A. concurs, conclude that the

Crown’s discretion to augment the annuities is justiciable and not unfettered.

Strathy C.J.O. and Brown J.A. agree that the Crown’s discretion is justiciable and

not unfettered.

[89] Fifth, on the issue of fiduciary duties, Hourigan J.A., writing for a unanimous

court, holds that the trial judge erred in finding that the Crown is under a fiduciary

Page: 42

duty regarding the implementation of the augmentation clause in the Robinson

Treaties. We therefore agree that this finding should be set aside.

[90] Sixth, on the issue of Crown immunity, Hourigan J.A., writing for a

unanimous court, concludes that it is not necessary to consider whether the Crown

is immune from breaches of fiduciary duty prior to 1963 given the court’s

conclusion that the Crown does not owe a fiduciary duty regarding the

implementation of the augmentation clause.

[91] Seventh, on the issue of limitations, Hourigan J.A., writing for a unanimous

court, holds that provincial limitations legislation does not preclude the breach of

Treaty claims.

[92] Eighth, on the issue of indexation, Lauwers and Pardu JJ.A., writing for a

unanimous court, conclude that the trial judge did not err in rejecting the argument

that the annuities paid pursuant to the Robinson Treaties should be indexed to

mitigate the impact of inflation.

[93] Ninth, on the issue of costs, Lauwers and Pardu JJ.A., writing for a

unanimous court, conclude that Ontario’s costs appeal from the Stage One

proceedings should be allowed in part. We grant leave to appeal from the award

of $9,412,447.50 in favour of the Huron Plaintiffs; we uphold the disbursements

allowed by the trial judge, but set aside the fees allowed and remit the matter of

the Huron Plaintiffs’ costs to the trial judge for reconsideration in accordance with

Page: 43

the reasons of Lauwers and Pardu JJ.A. We deny leave to appeal from the costs

award in favour of the Superior Plaintiffs in the sum of $5,148,894.45.

[94] Finally, on the issue of remedies in the Stage One proceedings, Lauwers

and Pardu JJ.A., with whom Hourigan J.A. concurs, conclude that the trial judge

erred in directing, as part of the judgments for the Stage One proceedings, the

payment of annuities corresponding to a “fair share” of the value of the resources

in the territory. Further, the trial judge also erred in directing in the judgments that

tax revenues and the costs of infrastructure and institutions should be excluded

from the calculation of net Crown resource-based revenue. Lauwers, Hourigan and

Pardu JJ.A. therefore direct that the Stage One judgments should be amended as

set out in Appendix “A” to these reasons by:

 deleting “with the amount of annuity payable in any period to

correspond to a fair share of such net revenues for that period” in para.

1(a);

 deleting “and the fiduciary duty which the Crown owes to the First

Nation Treaty parties” in para. 1(c);

 deleting “so as to achieve the Treaty purpose of reflecting in the

annuities a fair share of the value of the resources, including the land

and water in the territory” in para. 1(d);

 deleting “but not including personal, corporate or property tax

revenues” in para. 3(b)(i);

Page: 44

 deleting “but do not include the costs of infrastructure and institutions

that are built with Crown tax revenues” in para. 3(b)(ii);

 substituting “that are fairly and reasonably equal to a fair share of” with

“to be disbursed pursuant to the augmentation promise from” in para.

3(c); and

 with respect to the Huron Plaintiffs only, setting aside para. 5 of the

partial judgment in the Huron action and remitting the matter of costs

to the trial judge for determination in accordance with these reasons.

[95] Strathy C.J.O. and Brown J.A. would vary the judgments on different terms,

as set out in their reasons.

[96] The Stage One appeal is therefore granted in part. The Stage One

judgments are amended as set out in Appendix A; leave to appeal the costs award

in favour of the Superior Plaintiffs is denied; and leave to appeal the costs award

in favour of the Huron Plaintiffs is granted, the disbursements allowed by the trial

judge are upheld, and the fees allowed are set aside and remitted to the trial judge

for reconsideration. The Stage Two appeal is dismissed in its entirety.

[97] If the parties cannot agree on costs for the appeals, they may provide the

court with written submissions no more than 10 pages in length, along with their

bills of costs. The Huron Plaintiffs, the Superior Plaintiffs and Canada are to

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provide their submissions within 15 days of the release of these reasons. Ontario

is to provide its submissions within 30 days of the release of the reasons.

Page: 46

Lauwers and Pardu JJ.A.:

A. INTRODUCTION

[98] The primary issue raised in Ontario’s appeal from the Stage One judgments

turns on the interpretation of a provision in the Robinson Treaties known as the

augmentation clause. Briefly stated, the trial judge found that the augmentation

clause obliges “the Government of this Province” to “increase the annuity” to the

First Nations “from time to time” when it can do so “without incurring loss”.

[99] Ontario asserts that the trial judge made errors in the interpretation of the

Treaties that we would group into four issues:

the interpretation of the augmentation clause;

the finding that the doctrine of the honour of the Crown obliges the Crown

to increase the annuities as part of its duty to diligently implement the

Treaties;

the finding that the Treaties do not contain an implied term to index the

annuities; and

the approach to remedies.

[100] We would largely reject Ontario’s submissions for reasons that can be

summarized in seven statements:

the trial judge correctly instructed herself on the governing principles of

treaty interpretation set out in Marshall and other cases;⁵⁴

⁵⁴R. v. Marshall, [1999] 3 S.C.R. 456.

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the trial judge’s interpretation of the augmentation clause is

grammatically and contextually correct;

the trial judge did not make any palpable and overriding errors of fact,

errors in principle, or extricable errors of law in her consideration of the

evidence, contrary to Ontario’s argument;

the trial judge did not err in her analysis of the form and content of the

Crown’s discretion, or the First Nations’ understanding of the scope of

that discretion, contrary to Ontario’s argument;

the trial judge correctly found that the honour of the Crown obliged the

Crown to increase the annuities as part of its duty to diligently implement

the Treaties;

the trial judge correctly rejected Ontario’s proposal to supplant the

augmentation clause by implying a judicially created indexing term into

the Treaties; and

despite our agreement with the trial judge thus far, her interpretation of

the Treaties fell short on the “fair share” issue.

[101] Before turning to our analysis, we note that these appeals raise a number of

other issues that are addressed in the reasons of our colleagues. We concur with

the reasons of Hourigan J.A. on the issues of fiduciary duty, Crown immunity and

limitation defences. On the issue of the standard of review for treaty interpretation,

Lauwers J.A. concurs with Strathy C.J.O. and Brown J.A., and Pardu J.A. concurs

with Hourigan J.A.

[102] We now turn to the four interpretation issues and also address the issue of

costs, then conclude with our disposition.

Page: 48

B.

ISSUE ONE: DID THE TRIAL JUDGE ERR IN HER INTERPRETATION

OF THE AUGMENTATION CLAUSE IN THE TREATIES?

[103] We begin by setting out the Treaty text. We next address the governing

principles and the trial judge’s interpretation of the text, and then apply the

governing principles to Ontario’s arguments.

(1) The Treaty Text to Be Interpreted

[104] For convenience, we will use the text of the Robinson-Huron Treaty, which

is almost identical to the text in the Robinson-Superior Treaty. The analysis applies

equally. Particularly pertinent text is underlined and we have inserted several

guideposts. The other text provides context. The Robinson-Huron Treaty provides:

[F]or, and in consideration of the sum of two thousand

pounds of good and lawful money of Upper Canada, to

them in hand paid, and [the collective annuity] for the

further perpetual annuity of six hundred pounds of like

money, the same to be paid and delivered to the said

Chiefs and their tribes at a convenient season of each

year, of which due notice will be given, at such places as

may be appointed for that purpose, they the said Chiefs

and Principal men, on behalf of their respective Tribes or

Bands, do hereby fully, freely, and voluntarily surrender,

cede, grant, and convey unto Her Majesty….

…

And the said William Benjamin Robinson of the first part,

on behalf of Her Majesty and the Government of this

Province, hereby promises and agrees to make, or cause

to be made, the payments as before mentioned; and

further to allow the said Chiefs and their Tribes the full

and free privilege to hunt over the Territory now ceded by

them, and to fish in the waters thereof, as they have

heretofore been in the habit of doing; saving and

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excepting such portions of the said Territory as may from

time to time be sold or leased to individuals or companies

of individuals, and occupied by them with the consent of

the Provincial Government.

…

[the augmentation clause] The said William Benjamin

Robinson, on behalf of Her Majesty, Who desires to deal

liberally and justly with all Her subjects, further promises

and agrees that should the territory hereby ceded by the

parties of the second part at any future period produce

such an amount which will enable the Government of this

Province, without incurring loss, to increase the annuity

hereby secured to them, then and in that case the same

shall be augmented from time to time, [the first proviso]

provided that the amount paid to each individual shall not

exceed the sum of one pound Provincial currency in any

one year, [the graciousness clause] or such further

sum as Her Majesty may be graciously pleased to order;

and [the second proviso] provided further that the

number of Indians entitled to the benefit of this treaty

shall amount to two-thirds of their present number, which

is fourteen hundred and twenty-two, to entitle them to

claim the full benefit thereof; [the diminution clause]

and should they not at any future period amount to two-

thirds of fourteen hundred and twenty-two, then the said

annuity shall be diminished in proportion to their actual

numbers.

Within the first proviso to the augmentation clause is the clause, “or such further

sum as Her Majesty may be graciously pleased to order”. The parties called this

the “ex gratia clause” or the “graciousness clause”.⁵⁵We will use the latter term.

⁵⁵Stage One Reasons, at para. 244.

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(2) The Governing Principles of Treaty Interpretation

[105] The trial judge correctly instructed herself on the principles governing the

interpretation of historical treaties.⁵⁶No one argues to the contrary.

[106] Principles related to common intention, text, context and purpose inform the

interpretation of historical treaties. These principles are well settled, although the

facts of any particular case will make some more salient than others.⁵⁷The

principles work to instantiate the constitutional principle of the honour of the Crown

in the service of the reconciliation of Aboriginal and non-Aboriginal Canadians.

Common Intention

[107] In interpreting a treaty, the court must “choose from among the various

possible interpretations of the common intention [at the time the treaty was made]

the one that best reconciles” the interests of the First Nations and the Crown.⁵⁸

The common intention is that of both treaty partners, not one alone.⁵⁹

Text, Context and Purpose

[108] A court must attend to both the written text of a treaty and the evidence about

the context in which it was negotiated, consistent with the principle that extrinsic

⁵⁶Stage One Reasons, at paras. 321-29.

⁵⁷Marshall, at paras. 9-14, per Binnie J., and as summarized at paras. 78-83, per McLachlin J.

(dissenting, but not on this point).

⁵⁸Marshall, at para. 14, per Binnie J. (emphasis in the original), citing R. v. Sioui, [1990] 1 S.C.R. 1025, at

p. 1069, per Lamer J., and see, in Marshall, McLachlin J.’s restatement, at paras. 78(3)-(4), 83.

⁵⁹Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R.

388 (“Mikisew Cree (2005)”), at para. 28, per Binnie J.

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evidence is always available to interpret historical treaties. Mackinnon A.C.J.O.

stated in Taylor and Williams, “if there is evidence by conduct or otherwise as to

how the parties understood the terms of the treaty, then such understanding and

practice is of assistance in giving content to the term or terms.”⁶⁰He accepted the

common submission of counsel before him that “recourse could be had to the

surrounding circumstances and judicial notice could be taken of the facts of

history.”⁶¹He added: “In my opinion, that notice extends to how, historically, the

parties acted under the treaty after its execution.”⁶²The court need not find an

ambiguity in a treaty before admitting extrinsic evidence.⁶³

[109] Binnie J. explained in Marshall:

The special rules are dictated by the special difficulties of

ascertaining what in fact was agreed to [in historical

treaties]. The Indian parties did not, for all practical

purposes, have the opportunity to create their own written

record of the negotiations. Certain assumptions are

therefore made about the Crown’s approach to treaty

making (honourable) which the Court acts upon in its

approach to treaty interpretation (flexible) as to the

existence of a treaty, the completeness of any written

record (the use, e.g., of context and implied terms to

make honourable sense of the treaty arrangement, and

the interpretation of treaty terms once found to exist.⁶⁴

⁶⁰R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 227 (Ont. C.A.), at p. 236, per MacKinnon A.C.J.O.,

leave to appeal refused, [1981] 2 S.C.R. xi.

⁶¹Taylor and Williams, at p. 236.

⁶²Taylor and Williams, at p. 236.

⁶³Marshall, at para. 11, per Binnie J. The Supreme Court has approved the approach in Taylor and

Williams on many occasions and has never doubted it: see e.g., Marshall; Sioui; R. v. Sparrow, [1990] 1

S.C.R. 1075; and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

⁶⁴Marshall, at para. 14, per Binnie J. (citations omitted).

Page: 52

McLachlin J. added cultural and linguistic differences to this non-exhaustive list of

contextual considerations.⁶⁵

[110] Unlike modern treaties, historical treaties are not a “product of lengthy

negotiations between well-resourced and sophisticated parties.”⁶⁶The historical

record of the negotiations shows how quickly the Treaties at issue in these appeals

were negotiated and how much they left undefined. The trial judge rightly

characterized the Treaties as “lean on details”, particularly respecting the future

operation of the augmentation clause.⁶⁷

[111] The court must take a purposive approach to the interpretation of a treaty

obligation, informed by the honour of the Crown,⁶⁸recognizing that treaty promises

are “solemn promises” and that treaties are “sacred”.⁶⁹

Reconciliation and the Honour of the Crown

[112] The reconciliation of Aboriginal and non-Aboriginal Canadians is the “grand

purpose” of s. 35 of the Constitution Act, 1982,⁷⁰and the “first principle” of

⁶⁵Marshall, at para. 78(5), per McLachlin J.

⁶⁶Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 9, per

Binnie J. See also Dwight Newman, “Contractual and Covenantal Conceptions of Modern Treaty

Interpretation” (2011) 54 S.C.L.R. (2d) 475.

⁶⁷Stage One Reasons, at para. 399, and see para. 349.

⁶⁸Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at

para. 76.

⁶⁹Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765

(“Mikisew Cree (2018)”), at para. 28, per Karakatsanis J.

⁷⁰Little Salmon, at para. 10, per Binnie J.

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Aboriginal law.⁷¹This “fundamental objective”⁷²flows from “the tension between

the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and

occupation of Aboriginal peoples”⁷³and the need to reconcile “respective claims,

interests and ambitions.”⁷⁴

[113] Reconciliation is also the objective of the legal approach to treaty rights and

the “overarching purpose” of treaty making and, perforce, treaty promises.⁷⁵

Reconciliation underpins the doctrine of the honour of the Crown,⁷⁶which operates

as a “constitutional principle.”⁷⁷Hence: “The controlling question in all situations is

what is required to maintain the honour of the Crown and to effect reconciliation

between the Crown and the Aboriginal peoples with respect to the interests at

stake.”⁷⁸

[114] We will consider the honour of the Crown more closely in addressing the

second issue.

⁷¹Mikisew Cree (2018), at para. 22, per Karakatsanis J.

⁷²Mikisew Cree (2005), at para. 1, per Binnie J.

⁷³Mikisew Cree (2018), at para. 21. See also Haida Nation v. British Columbia (Minister of Forests), 2004

SCC 73, [2004] 3 S.C.R. 511, at para. 32.

⁷⁴Mikisew Cree (2005), at para. 1, per Binnie J. The Crown’s assertion of sovereignty gives rise to the

“obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation”:

Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 9, per McLachlin C.J.

⁷⁵Manitoba Metis, at para. 71, per McLachlin C.J. and Karakatsanis J.

⁷⁶Mikisew Cree (2018), at para. 22, per Karakatsanis J.

⁷⁷Little Salmon, at para. 42, per Binnie J., and at para. 105, per Deschamps J.; Manitoba Metis, at

para. 69, per McLachlin C.J. and Karakatsanis J.; and Mikisew Cree (2018), at para. 24, per

Karakatsanis J.

⁷⁸Haida Nation, at para. 45.

Page: 54

(3) The Trial Judge’s Interpretation of the Augmentation Clause

[115] As noted, in the task of treaty interpretation, in addition to the treaty text, the

court must advert to the larger context in which the treaty was negotiated. The

Indigenous perspective is to be considered and given due weight.⁷⁹That

perspective was fairly established on evidence that Ontario does not dispute. The

trial judge stated:

From the Anishinaabe perspective, the central goal of the

treaty was to renew their relationship with the Crown,

which was grounded in the Covenant Chain alliance and

visually represented on wampum belts with images of

two figures holding hands as part of two links in a chain.⁸⁰

[116] She added:

These principles of respect, responsibility, reciprocity,

and renewal were fundamental to the Anishinaabe’s

understanding of relationships. For the Anishinaabe, the

Treaties were not a contract and were not transactional;

they were the means by which the Anishinaabe would

continue to live in harmony with the newcomers and

maintain relationships in unforeseeable and evolving

circumstances.⁸¹

[117] The trial judge considered whether the augmentation clause distinguishes

between a collective annuity payable to each First Nation as a whole, on the one

hand, and the annuity paid to individual band members, on the other hand. She

found that the augmentation clause does make a distinction between “the

⁷⁹Mikisew Cree (2005), at para. 28; Sioui, at p. 1035.

⁸⁰Stage One Reasons, at para. 412.

⁸¹Stage One Reasons, at para. 423.

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collective annuity (either £500 or £600) paid to the Chiefs and their Tribes and a

distributive amount that is paid to individuals from the collective amount and is

limited to £1 (equivalent to $4) or such further sum as Her Majesty may be

graciously pleased to order”.⁸²

[118] The trial judge set out her conclusion at the beginning of her reasons:

I find that the Crown has a mandatory and reviewable

obligation to increase the Treaties’ annuities when the

economic circumstances warrant. The economic

circumstances will trigger an increase to the annuities if

the net Crown resource-based revenues permit the

Crown to increase the annuities without incurring a loss.⁸³

[119] In working her way to that conclusion, the trial judge posited three possible

interpretations of the augmentation clause. The first, which Ontario still advances,

is that: “the Crown’s promise was capped at $4 per person; in other words, once

the annuity was increased to an amount equivalent to $4 per person, the Crown

had no further liability.”⁸⁴The trial judge rejected this interpretation.⁸⁵

[120] The second interpretation was that “the Crown was obliged to make orders

(“as Her Majesty may be graciously pleased to order”) for further payments above

$4 per person when the economic circumstances permitted the Crown to do so

⁸²Stage One Reasons, at para. 347, and see para. 373.

⁸³Stage One Reasons, at para. 3.

⁸⁴Stage One Reasons, at para. 459.

⁸⁵Stage One Reasons, at para. 397.

Page: 56

without incurring loss.”⁸⁶The trial judge noted that this interpretation had a “certain

logic”, although she rejected it.⁸⁷

[121] Instead, the trial judge accepted the third interpretation: “that the Treaties

were a collective promise to share the revenues from the territory with the

collective; in other words, to increase the lump sum annuity so long as the

economic condition was met.”⁸⁸In her view, the third interpretation “includes the

second interpretation”.⁸⁹She added: “The reference to £1 (equivalent of $4) in the

augmentation clause is a limit only on the amount that may be distributed to

individuals.”⁹⁰

[122] The trial judge held: “Applying the approved treaty interpretation principles,

including the honour of the Crown, and examining the full context in which the

Treaties were made, only the third interpretation comes close to reflecting the

parties’ common intention.”⁹¹She added:

This interpretation holds the parties in a relationship,

looking toward the future together. I find that the

interpretation that imposes a $4 per person cap on the

annuities does not reflect either the common intention nor

reconcile the parties’ interests; it suggests that the

Treaties were a one-time transaction. As the historical

and cultural context demonstrates, this was not the case;

⁸⁶Stage One Reasons, at para. 460 (emphasis in the original).

⁸⁷Stage One Reasons, at para. 456.

⁸⁸Stage One Reasons, at para. 461, and see para. 397.

⁸⁹Stage One Reasons, at para. 461.

⁹⁰Stage One Reasons, at para. 461.

⁹¹Stage One Reasons, at para. 462.

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the parties were and continue to be in an ongoing

relationship.⁹²

(4) The Governing Principles Applied

[123] We stated at the outset that, in our view, having properly instructed herself

on the principles, the trial judge’s interpretation of the augmentation clause is

grammatically and contextually correct. In this section, we address and reject two

of Ontario’s arguments. We address Ontario’s textual argument in the section of

these reasons on Crown discretion.⁹³

[124] Ontario takes the position that the $4 per person amount specified in the

Treaties fixes the total amount of the annuity payable by the Crown, which is

calculated by multiplying the number of eligible individual recipients by $4. While

the Crown is obligated to pay that amount, it has “unfettered discretion” as to when

and whether to increase the per person annuity beyond this hard cap and therefore

to increase the total annuity paid. The Crown has not done so since 1875.

[125] Ontario makes two basic arguments. First, the trial judge erred in her

findings on the common intentions of the Treaty parties because she failed to take

into account certain evidence of Crown intention. Second, she erred in finding that

the Crown discretion in the augmentation clause to increase the annuity was not

⁹²Stage One Reasons, at para. 465.

⁹³Our reasons, at paras. 196-205.

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unfettered. These arguments are linked because Ontario asserts that the Crown

would never have agreed to fetter its discretion. The idea was unthinkable.

The Trial Judge Did Not Err in Her Findings on the Common

Intentions of the Treaty Parties

[126] Ontario stated in its factum:

There were few disputes at trial regarding primary facts

disclosed by the historical record: what was done, said

and written, and who was involved in events. Ontario

does not challenge the facts set out by the trial judge in

the Reasons, although the judge’s summary of the facts

is materially incomplete; important evidence indicating

how the Treaty parties actually understood the annuity

promise was ignored. Partly on that basis Ontario

challenges certain key inferences drawn by the trial

judge.

However, it became clear in oral argument that Ontario does challenge the trial

judge’s material findings root and branch.

[127] Ontario argues that the trial judge failed to take certain crucial evidence into

account. The trial judge acknowledged that her task was to discern the parties’

common intention, but Ontario asserts that she failed to accord due weight to the

evidence of Crown intention before the Treaty negotiations, during the

negotiations, in their immediate aftermath, and later in the post-Treaty period. The

trial judge also unreasonably discounted evidence of Anishinaabe intention that

was contrary to her interpretation of the Treaties. Ontario labels these as errors in

law or palpable and overriding errors of fact that oblige this court to set aside the

Page: 59

judgment and either render judgment in the terms that Ontario seeks or order a

new Stage One trial.

[128] The standard of appellate review related to a palpable and overriding error

is very deferential:

“Palpable” means an error that is obvious. “Overriding”

means an error that goes to the very core of the outcome

of the case. When arguing palpable and overriding error,

it is not enough to pull at leaves and branches and leave

the tree standing. The entire tree must fall.⁹⁴

[129] Ontario argues that Crown actors and other non-Indigenous individuals

understood the Crown’s obligation to augment the Treaties to be limited to or

capped at a maximum of $4 per person, the amount Ontario has been paying since

1875. The trial judge misapprehended the common intentions of the Treaty parties

by unreasonably discounting or ignoring certain historical evidence.

[130] Ontario identifies evidence that contradicts the trial judge’s interpretation. In

analyzing this evidence, we are mindful of the surfeit of evidence reviewed by the

trial judge. To achieve the result Ontario seeks, the countervailing evidence must

go to the very core of the trial judge’s reasoning and reveal it to be mistaken. With

respect, the countervailing evidence falls far short of demonstrating a palpable and

overriding error of fact, an error in principle, or an error of law.

⁹⁴Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286, at para. 46, per Stratas J.A.

(citations omitted). This paragraph was quoted in full and approved by the majority in Benhaim v. St-

Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38.

Page: 60

[131] Several of the documents that Ontario relies upon were created close to the

time of Treaty formation, some by individuals that were present – or nearby – when

the Treaties were negotiated. The rest of the documents, some of which were not

expressly addressed by the trial judge, were penned years, even decades, after

the Treaties were signed. They are of limited value in discerning the Crown’s

intentions when the Treaties were signed. The trial judge did not err in her

treatment of this evidence.

(i)

The Proximate Evidence

[132] Each document in the proximate evidence requires careful evaluation to

discern what it reveals about Crown intention when the Treaties were signed.

Ontario refers to the Orders in Council (“OICs”) instructing Robinson, his Treaty

Report, a letter from a Hudson Bay Company factor, correspondence between

Robinson and Colonel Robert Bruce, and a newspaper article.

(i)

The Orders-in-Council Instructing Robinson

[133] Robinson received instructions in two OICs. The first, dated January 11,

1850, appointed him as Treaty Commissioner and authorized him to negotiate

treaties with the Anishinaabe of Lake Superior and Lake Huron. The second, dated

April 16, 1850, described Robinson’s mandate in more detail. Ontario argues that

the trial judge failed to advert to the implications of the second OIC in determining

Crown intention.

Page: 61

[134] In describing the instructions to Robinson in the second OIC, the trial judge

noted that “the Executive Council intentionally sent Robinson to the Treaty Council

without the financial authority to offer to match annuity provisions from previous

treaties.”⁹⁵She observed that this might well have reflected the financial crisis then

facing the Province of Canada.⁹⁶

[135] The trial judge did not mention the second OIC explicitly when she discussed

Crown intention, but she implicitly referred to it in her comment that “Robinson’s

instructions were flexible enough that his augmentation clause proposal could fit

within their scope.”⁹⁷She added that, in her view, the augmentation clause’s

“novelty would have compelled him to discuss the idea and seek approval before

making it an official offer.” On this basis, the trial judge found it reasonable to

conclude that when Robinson met Governor General Lord Elgin in Sault Ste. Marie

on August 30 and August 31, 1850, he received approval to propose the

augmentation clause.⁹⁸

[136] Ontario argues that under any interpretation, the augmentation clause went

beyond the instructions in the second OIC. In the context of those instructions,

⁹⁵Stage One Reasons, at para. 200. The trial judge notes, at para. 101, that in 1818, the Crown moved to

an annuity model in making treaties. Between 1818 and 1850, annuities were generally expressed as an

aggregate amount, based on multiplying the First Nation’s population at the time the treaty was made by

roughly two and a half pounds (equivalent to $10): Stage One Reasons, at para. 102.

⁹⁶Stage One Reasons, at para. 203.

⁹⁷Stage One Reasons, at para. 261.

⁹⁸Stage One Reasons, at para. 255.

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Robinson was unlikely to have been seeking authorization to promise uncapped

annuities, or annuities that could ever rise above $10 per person, as provided in

earlier treaties.

[137] The augmentation clause did depart from Robinson’s instructions in the

second OIC. But the historical circumstances when the Treaties were signed –

including the Crown’s financial situation and the low expectations for the future

productivity of the Treaty territories – do not make Ontario’s interpretation of a very

low cap, from the First Nations perspective, more likely to have found Lord Elgin’s

approval. Moreover, the augmentation clause took the approach recommended in

the report of the Vidal-Anderson Commission by including a provision “for an

increase of payment upon further discovery and development of any new sources

of wealth.”⁹⁹The augmentation clause would not have been a bolt out of the blue.

The trial judge did not err in her consideration of the second OIC.

(ii) Robinson’s Treaty Report

[138] Ontario argues that the trial judge failed to give any weight to Robinson’s

Treaty Report, dated September 24, 1850. To the contrary, it is clear that the trial

judge took the Treaty Report into account. She quoted from the following section:

I trust his Excellency will approve of my having concluded

the treaty on the basis of a small annuity and the

immediate and final settlement of the matter, rather than

⁹⁹Stage One Reasons, at para. 161.

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paying the Indians the full amount of all moneys on hand,

and a promise of accounting to them for future sales. The

latter course would have entailed much trouble on the

Government, besides giving an opportunity to evil

disposed persons to make the Indians suspicious of any

accounts that might be furnished.

Believing that His Excellency and the Government were

desirous of leaving the Indians no just cause of complaint

on their surrendering the extensive territory embraced in

the treaty; and knowing there were individuals who most

assiduously endeavored to create dissatisfaction among

them, I inserted a clause securing to them certain

prospective advantages should the lands in question

prove sufficiently productive at any future period to

enable the Government without loss to increase the

annuity. This was so reasonable and just that I had no

difficulty in making them comprehend it, and it in a great

measure silenced the clamor raised by their evil

advisers.¹⁰⁰

[139] Robinson did not refer to a $4 cap. His silence cannot be taken to mean, as

Ontario argues, that the operation of such a cap is obvious. Focussing on the

second section of the text set out above, the trial judge found that augmentation

capped at $4 could not have achieved Robinson’s purpose in securing the

Treaties:

When Robinson reported that the augmentation clause

was so “reasonable and just”, it is my view that he could

not have been referring to an annuity capped at $4. Chief

Shingwaukonse and the other Anishinaabe Chiefs would

not have found a $4 cap to their annuities either

reasonable or just; it was far less than half of what other

bands received as fixed sum annuities and, additionally,

¹⁰⁰Stage One Reasons, at para. 251 (emphasis added).

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it did not respond to their demand for a share of the future

wealth of the territory.¹⁰¹

As noted earlier, this approach was consistent with the recommendations of the

Vidal-Anderson Commission. This factual finding was open to the trial judge.

[140] Ontario argues that this part of Robinson’s Treaty Report suggests that he

could not have intended an uncapped annuity because the trial judge’s

interpretation requires “precisely the endless accounting and ‘trouble’ that

Robinson reports he avoided.”

[141] We would not give effect to this argument for three reasons. First, some

rough form of accounting was required in order to determine whether the

augmentation clause was triggered, under any interpretation. This is undeniable.

[142] Second, the historical context tells a more nuanced tale. The augmentation

clause is not “a promise of accounting … for future sales.” Robinson’s “trouble”

was likely related to the onerous task of tracking each sale of land on the territory

and the interest gained on the proceeds of those sales, as the practice had been

in other areas of the Province.¹⁰²By contrast, monitoring the overall revenue and

expenses linked to the territory would then have been a relatively simple task,

whether or not the annuity was capped at $4 per person.

¹⁰¹Stage One Reasons, at paras. 450-453.

¹⁰²Expert Report of James Morrison, Exhibit 14, at para. 59 on p. 53. According to Mr. Morrison, expert

witness for the Huron Plaintiffs, Robinson was “well aware” of this system and its use in more southerly

parts of the Province: Expert Report of James Morrison, Exhibit 14, at para. 368 on p. 284.

Page: 65

[143] Third, Robinson does not appear to have expected that significant revenues

would be generated from the territory. He stated, “these lands now ceded are

notoriously barren and sterile, and will in all probability never be settled except in

a few localities by mining companies.” Given this, it is unlikely that he would have

viewed the ongoing monitoring of total revenues and expenses from the Treaty

territories as a particularly complex or troublesome task. The reference to “trouble”

is not, therefore, inconsistent with the trial judge’s interpretation.

(iii) Buchanan’s Letter to Simpson

[144] Ontario points to two accounts from individuals who were in the vicinity when

the Treaties were signed, neither of which the trial judge referred to in her reasons.

On September 11, 1850, mere days after the Treaties were signed,

A.W. Buchanan, the Hudson Bay Company Post Factor at Sault Ste. Marie, wrote

to George Simpson, the Governor of the Hudson Bay Company:

The terms of the treaty are that the Indians are to receive

£4,000 now to be divided amongst the whole of them,

and £1,000 are to be paid them annually for ever, liable

to be increased until the sum amounts to £1 for each

Indian should sales of land be made to afford that sum.

[145] Jean-Philippe Chartrand, Ontario’s expert witness, testified that while

Buchanan was nearby and was responsible for provisioning the Anishinaabe

encamped at the Treaty Council, he was not a witness to the negotiation or

execution of either Treaty. Mr. Chartrand agreed that Buchanan “seems to be

recording not what happened but … Robinson’s first offer”, which was not the one

Page: 66

the First Nations accepted.¹⁰³The trial judge did not err in not referring to this

document or in arriving at an interpretation inconsistent with it.

(iv) Correspondence Between Bruce and Robinson

[146] The second account to which Ontario refers is from Colonel Robert Bruce,

dated October 16, 1851. Bruce forwarded to Robinson a petition from the Lake

Huron Chiefs asking the government to consider distributing annuities based on

traditional land areas rather than on population. Bruce did not appear to support

the petitioners. He commented: “The following extract from the Treaty seems to

show conclusively that the distribution was to be per capita & not as suggested by

the Petitioners” (emphasis in the original). Bruce stated that his impression was

“gathered from your report, the treaty itself and the numerical lists transmitted as

a guide for the distribution of annuities.” According to the editors of the British

Colonist Newspaper, Col. Bruce did not “attend the treaty.”

[147] Robinson responded to Bruce:

I can only say that the Treaty made by me with the

Indians last year was based on the same conditions as

all preceding ones I believe. These conditions even fully

explained in Council & are also clearly expressed in the

Treaty.

…

Nothing was said by the Chiefs [illegible] of the nature

mentioned in the extract you sent me & all seemed

¹⁰³Transcript, Vol. 50, at pp. 7340-41.

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satisfied both at the signing of the Treaty & payment of

the money with the terms on which I concluded the

Surrender by them to Her Majesty.

[148] Robinson’s response does not support Ontario’s interpretation. His answer

addressed the manner of distribution of annuities among the Chiefs, which is what

he was asked about. Robinson confirmed that the distribution was to be based on

the population of each Chief’s community, not the area of land that each Chief had

surrendered on behalf of his community.¹⁰⁴The model of distribution that Robinson

described is not inconsistent with the trial judge’s interpretation. More importantly,

neither Bruce’s inquiry nor Robinson’s response addressed the operation of the

alleged cap in the augmentation clause.

(v) The Newspaper Article

[149] Ontario points to an article published in the British Colonist Newspaper on

October 1, 1850, containing an account of the Treaty Council, provided by an

individual who was present. An extract from an American newspaper, with details

of the Robinson Treaties, was printed in the same edition. Below the eyewitness

account, the editor comments:

The terms, as mentioned in the [American] extract first

alluded to are, we believe, nearly correct, except that any

future increase to the annuity, which the sale of the ceded

¹⁰⁴Robinson’s reference to the practice of calculating annuities based on population, not land area, as

being “the same conditions as all preceding ones” is consistent with the historical evidence. The trial

judge noted, at para. 102 of her reasons, that between 1818 and 1850, annuities tended to be an

aggregate amount based on multiplying the population of the First Nation by $10. She states “[t]he

multiplier of $10 was unrelated to the value or size of the land surrendered.”

Page: 68

territory may enable the Government to make, is limited

to four dollars a head.

[150] The provenance of this information is unclear. The fact that it follows an

eyewitness account does not mean that this comment came from the eyewitness.

In the absence of evidence about where the editor got this impression, it sheds no

light on the Crown’s intention in entering the Treaties.

(ii) The Post-Treaty Evidence

[151] The post-Treaty evidence consists of records of requests that the annuities

be increased to $4 per person, consideration of those requests by officials,

petitions for the payment of arrears, requests for further increases, the 1893

Affidavit of John Mashekyash, and records of the arbitration between Canada,

Ontario and Quebec.

[152] According to Ontario, the documents it relies on show that Crown actors and

other non-Indigenous individuals unequivocally understood the Crown’s obligation

as being limited to $4 per person, subject to the possibility of a discretionary

increase. Ontario argues that the trial judge failed to take these documents into

account and that her interpretation is inconsistent with this evidence of the Crown’s

intentions and understanding. Ontario argues that this is an error in principle that

requires reversal.

Page: 69

(i)

The Governing Principles on the Use of Post-Treaty Evidence in

Treaty Interpretation

[153] Temporal proximity is not required for post-treaty evidence to be admissible,

but evidence from shortly after treaty formation is more likely to reveal the parties’

interests and intentions. As Lamer J. noted, “the subsequent conduct which is most

indicative of the parties’ intent is undoubtedly that which most closely followed the

conclusion of the document.”¹⁰⁵

[154] Post-treaty evidence and evidence of the parties’ subsequent conduct can

play a role in treaty interpretation but must be treated with “extreme caution.”¹⁰⁶In

West Moberly, Smith J.A. (dissenting) referred to post-treaty events and conduct

but noted that they mostly had “limited relevance to the issue of the common

intention of the parties to the Treaty in 1899 unless they involve the Treaty parties

or conduct that is probative to the intention of a Treaty party.”¹⁰⁷

[155] In Lac La Ronge, Vancise J.A. adopted the trial judge’s statement in that

case:

It is very useful to read what a signatory said about a

treaty provision at or about the time when the document

was executed. It is equally useful to know whether or not

subsequent conduct by other people accorded with what

was said. However, it is of no value to learn that some

¹⁰⁵Sioui, at p. 1060.

¹⁰⁶Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 206 D.L.R. (4th) 638, at para. 103, rev’g 1999

SKQB 218, 188 Sask. R. 1, leave to appeal refused, [2001] S.C.C.A. No. 647. Vancise J.A. agreed with

the trial judge in that case that “evidence of subsequent conduct should be used with extreme caution.”

¹⁰⁷West Moberly First Nations v. British Columbia, 2020 BCCA 138, 37 B.C.L.R. (6th) 232, at para. 231,

leave to appeal refused, [2020] S.C.C.A. No. 252.

Page: 70

person, fifty years later, acted differently based on his or

her own personal reading of the provision in the treaty.

That conduct has no link to the contemporaneous

historical circumstances and therefore should not be

admitted.¹⁰⁸

[156] The intervener Biigtigong Nishnaabeg First Nation argues that the risks of

relying on subsequent conduct in interpreting contracts, as identified by Strathy

C.J.O. in Shewchuk,¹⁰⁹are also present in the treaty context. Tools developed by

the court for interpreting contracts are to be applied to treaties only cautiously,

particularly historical treaties. We do not find it necessary to borrow from the

contract context in this instance.

(ii) The Principles Applied

[157] The trial judge recognized that post-treaty evidence can assist in depicting

“how the parties understood the terms of the Treaties.”¹¹⁰However, she noted that

“[t]he weight to be attributed to the post-treaty record will vary in each case and

will depend on the nature and context of the accounts and conduct.” She

considered the frailties of the post-Treaty evidence and concluded:

[T]he post-Treaty record, both written and conduct, is

vague, inconsistent, and conflicting. It is of limited

assistance to the exercise of searching for the parties’

common intention. It shows that different people at

¹⁰⁸Lac La Ronge, at para. 103.

¹⁰⁹Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, 404 D.L.R. (4th) 512.

¹¹⁰Stage One Reasons, at para. 284.

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different times and places held different understandings

of the Treaties’ promise.¹¹¹

[158] The trial judge did not err in her assessment of the post-Treaty evidence.

She was not obliged to refer to every document on the record, which would have

been virtually impossible given the volume of evidence before her.¹¹²More

importantly, the evidence that Ontario now attempts to rely upon is incapable of

establishing that the trial judge erred in determining Crown intention.

[159] The Robinson Treaties were signed in 1850. Of the remaining post-Treaty

documents that Ontario relies upon, only two were written prior to 1873. The

arbitration documents, on which Ontario places particular emphasis, date from the

1890s. This lack of temporal proximity renders most of the post-Treaty evidence

of doubtful probative value, an assessment that is borne out upon consideration of

other factors.

[160] Ontario has not demonstrated any connection between the post-Treaty

evidence it relies upon and the Crown’s intentions or interests on the date the

Robinson Treaties were signed. The documents do not recount Treaty negotiations

or conversations with Robinson before or after the Treaty Council. They do not

¹¹¹Stage One Reasons, at para. 318.

112

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at

paras. 91, 128. See also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 34, 37 and 43.

Page: 72

describe the problems facing the Crown in 1850 or the policies the Crown was

pursuing in response.

[161] Instead, much of Ontario’s evidence consists of personal interpretations of

the augmentation clause made by individuals who had no connection with the

formation of the Treaties.

[162] In a letter written in 1858, Richard Carney, an Indian Agent, described

visiting the Garden River settlement and talking with the Chiefs there. Carney

reported explaining to the Chiefs that the annuity “was not to exceed Four Dollars”.

He stated that he gave this explanation after he “asked for a sight of the Treaty”.

This was his interpretation of the Treaty, nothing more.

[163] Post-Treaty evidence must also be read carefully in its particular context,

which includes the wider historical context and the specific context in which a

document was created.

[164] The 1858 Pennefather Report cited the Treaty text and expressed “decided

regret, that a Treaty shackled by such Stipulations, whereby a vast extent of

Country has been wrung from the Indians for a comparatively nominal sum, should

have received the sanction of the Government.”¹¹³

¹¹³To give it its full name, the “Report of Special Commissioners (R.T. Pennefather, Froome Talfourd,

and Tho. Washington) appointed on the 8^thof September, 1856, to Investigate Indian Affairs in Canada.”

Page: 73

[165] Ontario argues that no such regret would have been necessary if the

augmentation clause was to operate as the trial judge found. But this is an

anachronistic reading; the reference to “a comparatively nominal sum” must be

read in its historical context. The authors appeared to believe, eight years after the

Treaties were signed, that no increase in the annuity was yet warranted.¹¹⁴There

was, at that point, no reason to believe that revenues would ever warrant a

significant increase in the annuity. Viewed in that historical context, the Treaties

were not seen as a good deal for the Anishinaabe, even with the prospect of future,

uncapped augmentation.

[166] Context is also relevant to post-Treaty evidence relating to Anishinaabe

requests for increases in the annuities. The trial judge correctly found that the

petitions must be read in their historical and cultural context:

Dr. Bohaker testified, and Mr. Chartrand agreed, that

these petitions could be labelled “pity speeches”, a term

historian[s] use to describe the use of metaphor to ask

relations to meet their obligations within the ongoing

relationship. One would not expect a pity speech to set

out the full scope of the obligations arising from the treaty

relationship, but rather to make modest requests that

would remind the treaty partner of their promise to care

for the other.¹¹⁵

¹¹⁴They stated: “Enquiries at the Crown Land Department shew that no increase in the annuity is yet

warranted by the sums realized from the surrendered lands.”

¹¹⁵Stage One Reasons, at para. 305.

Page: 74

[167] The trial judge cited Mr. Chartrand’s evidence that “the Anishinaabe were

‘modest’ and ‘diplomatic’ when making requests under the Treaties.”¹¹⁶That the

Anishinaabe, in 1873, asked only for $4, and that non-Indigenous actors

responded to those requests, cannot demonstrate that the Anishinaabe were not

ever entitled to more.

[168] Simon Dawson, a Member of Parliament, wrote to the Governor-General’s

Secretary in 1873 that “the lands ceded have become sufficiently productive to

warrant the increased payment of at least $4; if not, of such further sum (over and

above the $4) as Her Majesty may be graciously pleased to order, as provided for

in the above cited clause of the treaty.”

[169] Letters from E.B. Borron, a Member of Parliament, in 1874 and 1875, urged

Ministers in the Department of the Interior to pay the “full amount of annuity

stipulated for” in the Treaties, at $4. It is unclear how he reached this interpretation.

Justice Minister Edward Blake responded with his opinion on July 7, 1875, bas